This blog post examines the recent High Court judgment which found the Government's Net Zero Strategy to be unlawful.
In October 2021 the Government published a document called 'Net Zero Strategy: Build Back Greener' (NZS). Despite its title it is not actually a full strategy to achieve net zero emissions by 2050, it is in fact a strategy to achieve the sixth carbon budget that runs from 2033-2037 and will require a 78% cut in carbon emissions from 1990 levels. It doesn't even do that, as we will see.
There were three separate but similar challenges to the publication of the strategy, from Friends of the Earth, ClientEarth and the Good Law Project, who had their challenges combined into a single two-day hearing on 8 and 9 June. The judgment was issued late on 18 July and can be found here. Numbers in brackets below refer to paragraphs in the judgment.
The challenges were on two grounds, essentially that the Net Zero Strategy did not comply with section 13 or section 14 of the Climate Change Act 2008, respectively (16). Section 13 is about preparing a strategy for each carbon budget and section 14 is about reporting on the proposals in the strategy and their timescales. They're not that different, in fact, and the distinction is somewhat academic. A third human rights ground was unsuccessful (275), but a fourth ground that the Heat and Buildings Strategy breached the Equalities Act 2010 by not providing an Equalities Impact Assessment was successful.
It was revealed in pre-trial documents that the quantified policies in the NZS would only achieve 95% of the required emissions reductions, ie be short by about 9 million tonnes of CO2 equivalent per year. The remaining 5% would be met by 'planned policy work to identify further options over the coming years'. The 95% and 5% were referred to as the quantitative and qualitative elements respectively.
An element of challenge was that the quantitative element should amount to at least 100% of the reductions needed, and leaving any of it to later policy development was unlawful, but that was not successful (177). The judge did note that the greater the shortfall, then the more cogent the qualitative analysis would need to be and the more difficult that would be to achieve (187).
What did cause the High Court to declare the Net Zero Strategy unlawful was what information the minister was provided with in approving it, or rather what he wasn't. He was given the 95% figure and a list of policies but not what contribution each policy made towards that figure (208), nor the timescales that each policy would take to achieve its contribution. He was given the 5% figure but not what and how further policies and proposals would achieve it.
Mr Justice Holgate, who issued the judgment, is very keen on identifying 'obviously material considerations' that were missed, and these fell into that category. (It was a good idea for the claimants to use the phrase in their grounds, I'm not sure if they knew which judge they were getting at that point). Not knowing each policy's contribution meant the Secretary of State couldn't decide what the risk of non-achievement was, which was an obviously material consideration (204). The same went with the missing information around how the 5% shortfall would be achieved (217). That was the s13 ground; the s14 ground was made out for very similar reasons (254). So what was the result?
The NZS was not quashed, as the claimants wanted the useful bits to continue in force. What the government has to do is not set out in the judgment but in a separate Order that the Good Law Project has published here. A report must be submitted by 31 March 2023 – a date for your diaries – that addresses the identified shortcomings. The three section 13 shortcomings were that it did not set out the amounts that each policy (or linked group of policies) would contribute to emissions reductions, how the 5% shortfall would be made up including the matters in paragraph (216) of the judgment, and what the risks to achievement of the carbon budget were. The two section 14 shortcomings were that it also did not set out the contributions of policies and that it also did not address the matters in paragraph (253) of the judgment. Since the order requires a report compliant with section 14, I'm not sure if only the s14 shortcomings need to be addressed or the s13 ones as well.
What are the implications? We shall have to see what data is provided, and I assume for the moment that the data will indeed demonstrate the declared 95%. In infrastructure planning terms, if a project clearly falls under a particular policy or group of policies with its own contribution figure that is a subset of the whole, then it will obviously take up a greater proportion of that figure than the national one. This is likely to put carbon issues into sharper focus and may alter the current approach of setting out tiny percentages that are concluded not to be significant. We shall see.
Originally Published by 25 July 2022
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