Net zero: the strategy and the law

On 18 July 2022, the High Court delivered a judgment in R (Friends of the Earth Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin), declaring that the UK Government’s “Net Zero Strategy” did not comply with the requirements of the Climate Change Act 2008 (“CCA”). In doing so, the court ordered the Business Secretary to publish an updated climate strategy by the end of March 2023.

The actions had been brought by Friends of the Earth, Client Earth and the Good Law Project, campaign groups with a focus on environmental policy. The claimants had sought judicial review in relation to the decisions taken by the Business Secretary in October 2021 to (a) approve the policies and proposals prepared under s 13 of the CCA and as set out in the Net Zero Strategy, and (b) to publish the Net Zero Strategy as a report under s 14 of the CCA.

Legal basis for the obligation to reach net zero

On 17 November 2016, the Government ratified the Paris Agreement on Climate Change, which had been adopted in December of the preceding year by parties to the United Nations Framework Convention on Climate Change. Article 4 of the Paris Agreement mandates that parties to the agreement aim to reduce their greenhouse gas emissions to such a level that a balance between their release and their removal from the atmosphere is achieved by 2050. This aim has become known as net zero.

To comply with these obligations, the Government amended s 1 of the CCA in order to oblige the Business Secretary to ensure that the UK’s greenhouse gas emissions for the year 2050 are at least 100% lower than the baseline figure for 1990 for CO_² and other greenhouse gases. Progress towards this goal is planned and measured by the setting of a “carbon budget” for each year.

Per s 14 of the CCA, the Business Secretary must issue a report setting out the proposals and policies for meeting carbon budgets. The Net Zero Strategy was published in October 2021 in order to comply with this obligation.

The arguments

In this case, the court first considered the arguments submitted by the claimants in relation to s 13 of the CCA, which obliges the Business Secretary to prepare proposals and policies that they consider will enable the carbon budgets set under the CCA to be met. Evidence was led in relation to the sufficiency of the briefings provided to the Business Secretary in respect of the Net Zero Strategy and its ability to meet the carbon account target. The claimants advanced evidence that the Business Secretary had not been briefed in relation to how the individual contribution of each policy outlined in the Net Zero Strategy would enable the carbon budget to be met.

The court agreed with the claimants and found that the Business Secretary could not therefore have been satisfied that the proposals as a package would ensure that the carbon budgets would be met. As a result, the Business Secretary had failed to discharge his obligations under s 13.

Section 14 of the CCA provides that the Business Secretary must present to Parliament a report outlining the proposals and policies for meeting carbon budgets. The section also details certain requirements for the content of the report, including that it must outline the implications of the proposals and policies for the crediting of carbon units to the net UK carbon account for each budgetary period.

The court considered the Net Zero Strategy to be lacking in detail, particularly in relation to how each individual proposal outlined in the strategy would contribute to the achievement of net zero. As such, the court found that the Government had not complied with its obligations under s 14 of the CCA. The court noted that s 14 should be complied with in “the interests of public transparency”, and ordered the Business Secretary to present a new report complying with the requirements of section 14 before the end of March 2023.

Alternative human rights argument

As an alternative to the first two grounds of challenge outlined above, a third argument based on the Human Rights Act was advanced. The claimants argued that the court should interpret ss 13 and 14 of the CCA in a way that maximises the protection of the right to life, quality of life and property, as enshrined in the European Convention on Human Rights.

Although this ground was not upheld by the court, it is interesting to note the judicial treatment of such arguments (albeit by an English court), particularly when considering the Scottish Government’s intention to incorporate a right to a healthy environment in its new Human Rights Bill.

Role of the court

The judgment in this case has been described by commentators as “historic” and “landmark”. The headline is that the court has held that the UK Government has failed to meet its obligations under the CCA. As a result, the UK Government has to go away and “try again”.

The case is also an important reminder as to how the rule of law operates – the relationship between the three arms (or pillars) of the state, and the role of the courts, in this instance in the crucial area of climate change, to upholding the law. The court laid out the context within which it considered the case before it, quoting from another case, R (Rights: Community: Action) v Secretary of State for Housing, Communities and Local Government [2020] EWHC 3073 (Admin); [2021] PTSR 553]: “The role of the court in judicial review is concerned with resolving questions of law. The court is not responsible for making political, social, or economic choices… The court is only concerned with the legal issues raised by the claimant as to whether the defendant has acted unlawfully.”

In Friends of the Earth the court, importantly, recognised that s 13(1) of the CCA does not merely confer a power on the Secretary of State; it imposes a duty, compliance with which may be the subject of judicial review. In making its decision that the minister had not properly fulfilled that duty, the court was careful to respect the constitutional separation of functions between the executive, Parliament and the courts. The judge observed that “Ultimately, it remains for the court to interpret the legislation and to resolve legitimate disputes on the scope of the obligations it imposes”, and so confined his role to assessing whether procedural obligations under the CCA were being fulfilled. Thus, the court was not setting or enforcing climate change targets; rather it performed an important supervisory function in relation to the minister’s compliance with statutory obligations set out in the CCA.

The release of the judgment immediately preceded a heatwave that swept across the UK, with parts of the country experiencing record breaking temperatures of 40ºC. With climate scientists predicting that temperature records will continue to soar, environmental and climate related litigation will likely increase in volume and complexity.