Judicial review of Net Zero strategy upheld in parts

21st September 2022

In R. (on the application of Friends of the Earth Ltd) v Secretary of State for the Business, Energy and Industrial Strategy, the claimant applied for judicial review of the Secretary’s decisions to approve pro-posals and policies prepared under the Climate Change Act 2008, and to publish the government’s Net Zero Strategy to comply with his obligations.

The 2008 Act established a framework for the government to meet its net-zero target, and obliged the Secretary to ensure that the 2050 net UK carbon account was at least 100% lower than the 1990 baseline. He was also required to set an amount for the net UK carbon account for successive five-year periods, with a view to meeting the 2050 target.

The act additionally imposed a continuing duty on the Secretary to prepare proposals and policies that would allow carbon budgets to be met, and to lay before Parliament a report setting out proposals and policies for meeting current and future budgetary periods, up to and including that budget. The Secretary set six carbon budgets and, following the sixth, laid the Net Zero Strategy before Parliament as a report in October 2021.

The claimant argued that the Secretary was not entitled to conclude that the proposals and policies would enable the carbon budgets to be met, because their quantified effects were estimated to deliver only 95% of required reductions. However, the judge concluded that the act “does not require the Secretary […] to be satisfied that the quantifiable effects of his proposals and policies will enable the whole of the emissions reductions required by the carbon budgets to be met”.

The claimants stated that omissions from the briefing provided to the Secretary meant he could not be satisfied that the proposals and policies would allow the sixth carbon budget to be met. This ground was upheld in part.

The claimant also argued that the Secretary had failed to include in the strategy the information required to discharge his reporting obligations. The statutory objective of transparency around how the targets were to be met required reports explaining and quantifying how the proposals and policies would meet them; the strategy failed to explain various matters relating to risks that could affect delivery of the targets. This ground was upheld in part.

The claimant also said that the Human Rights Act 1998 could be applied to give the 2008 Act the effect for which they pleaded, dependent on the proposition that Parliament should be assumed to have intended that the 2008 Act had to be interpreted as more, rather than less, conducive to the protection of rights set out by the European Court of Human Rights. This did not coincide with established principle and was rejected.

Image credit | iStock


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