Court orders UK Government to revise net zero target policies report

Introduction

As temperatures in the UK reach record-setting highs, the High Court has ruled that the UK Government’s plan to reduce greenhouse gas (GHG) emissions to net zero is too vague and therefore unlawful.¹ A judicial review challenge was brought under three grounds by campaign groups including Client Earth, Friends of the Earth, the Good Law Project and environmental campaigner Jo Wheatley (the Claimants). The Secretary of State for Business, Energy and Industrial Strategy (the SoS), Kwasi Kwarteng, has now been ordered to outline how his proposed net zero policies will achieve targets for emissions in a revised report, to be published by the end of March 2023.

The Net Zero Strategy

The SoS launched the UK’s Net Zero Strategy (NZS) in October 2021. The NZS includes commitments to end sales of new fossil fuel cars by 2030 and gas boilers by 2035 but has been widely critiqued for lacking a clear explanation of how emissions targets would be achieved and failing to go beyond national and sector levels to look at the contributions to emissions reductions made by policies.

Grounds of challenge

Section 1 of the Climate Change Act 2008 (the CCA) sets out the government’s target to reduce the UK’s GHG emissions to net zero by 2050. The Claimants brought their challenge to the NZS under sections 13 and 14 of the CCA. Under those provisions:

i. The SoS has a continuing duty to prepare policies and proposals that will enable the carbon budgets to be met (section 13).

ii. The SoS is required to prepare a Parliamentary report, as soon as reasonably practicable after a carbon budget is set, setting out proposals and policies for meeting those budgets, as well as the expected timeframe within which those policies are expected to take effect and their impact on different sectors of the economy (section 14).

On each of the above grounds the Claimants argued that:

i. Section 13: Taking the policies together, the NZS would achieve only 95% of the required emissions reductions, leaving a 5% shortfall, to be made up by a qualitative judgment about the future effects of the proposed policies. Accordingly, the Claimants argued, the NZS was unclear as to how each policy contributed to the overall reduction.

ii. Section 13: The SoS had failed to take into account matters which he was legally obliged to consider. In particular, he did not consider the contributions which each quantifiable policy would make to meeting the carbon budgets, and under his qualitative analysis, which policies were proposed to make up the 5% shortfall and how.

iii. Section 14: In light of the above, the SoS had also failed to include in the NZS information legally necessary to discharge his reporting obligations.

iv. Human Rights Act: The Court should favour the Claimants’ interpretation of sections 13 and 14 on the grounds that it was more conducive to the protection of rights in line with section 3(1) of the Human Rights Act 1998 (HRA 1998). That provision provides that legislation must be read in a way that is compatible with the rights set out in the European Convention on Human Rights (the Convention).

Decision

In its decision, the Court held that neither the SoS, nor Greg Hands – the energy minister who approved the strategy on his behalf – knew how each individual policy would contribute to achieving the legally binding net zero target. As a result, Mr Justice David Holgate found the credibility of the NZS could not properly be assessed.

On each of the grounds of challenge raised:

i. Section 13: Whilst the Court accepted the SoS’s submission that section 13 does not require satisfaction that the numerical estimate of emissions reductions set out in a carbon budget will enable 100% of the target to be met, the Court recognised that, under the CCA, the SoS has duties which are crucial to the operation of the legislation. Those duties – which rest solely on the SoS rather than his / her officials – include setting carbon budgets and preparing policies. The Court found that, in his ministerial briefing, the SoS had not been informed of: (i) the quantitative effects of individuals policies; nor (ii) in the qualitative analysis, which policies were relied upon to make up the 5% shortfall and in what ways. The SoS is legally obliged to take those considerations into account in assessing the NZS and as he was not provided with the relevant information, he had failed to discharge his duty under section 13 of the CCA.

ii. Section 14: The Court rejected the SoS’s argument that he did not need to provide a quantification of the effects of individual policies on the net zero target. Instead, the Court agreed with the Claimants’ position that a report under section 14 is important not only to enable Parliament to scrutinise the SoS’s policies and to hold him to account, but also to provide transparency so that the public can properly understand how the government intends to meet statutory targets. The NZS, it was found, lacked any quantitative assessment of the expected impact of individual policies to reductions in GHG emissions.

iii. Human Rights Act: The Court rejected the Claimants’ reference to the HRA 1998, holding that section 3(1) only enables the Court to depart from the ordinary meaning of the language used by Parliament where that would be incompatible with a Convention right.

As a result of the challenge, the government has been ordered to publish an updated climate report by the end of March 2023, setting out further detail on how its net zero goal will be achieved.

Comment

Senior lawyer at Client Earth, Sam Hunter Jones, described the decision as “a breakthrough moment in the fight against climate delay and inaction. It forces the government to put in place climate plans that will actually address the crisis”. Following decisions across Europe, including the landmark judgment of the Hague in May 2021² which ordered Shell to reduce its worldwide C02 emissions by 45% by 2030, the Court’s order demonstrates the increasing willingness of the judiciary to enforce climate legislation with teeth. Those measures include requiring governments to lower emissions, as well as imposing a duty on a company to do so.

Pressure on corporations to address their climate policies has also been felt as a result of increasing activism by regulators, as well as investors and shareholders. The order will likely come as welcome news to those regulators and investors, for whom the call for tangible guidance – which the government has been ordered to provide – will provide a more granular framework within which to hold corporates to account.

Against this backdrop and within the context of the Tory race to leadership, each of the candidates’ policies towards achieving net zero will also be informative.

¹ Friends of the Earth Ltd & Ors, R (On the Application Of) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin) (18 July 2022)
² The Hague District Court, Milieudefensie et al. v Royal Dutch Shell plc, NL:RBDHA:2021:5339 (26 May 2021).