Anthony Rae 28th December 2024: It’s great that the UK has a world-class carbon reduction law but there comes a time – it’s now, by the way – when its purchase on the real world comes to be tested in the courts. If the era of ‘decarbonisation by advocacy’ has been superceded by that of ‘decarbonisation by legal challenge’, as this series has been suggesting, article 4 now analyses what is the legal battleground around transport emissions and how can it be advanced in 2025.
The two previous articles in this series have been examining issues around the quantity and trajectory of transport carbon emissions from the perspective of the policy maker. Article 3 concluded that aviation – just a subset of total transport emissions – is ‘eating the transport carbon budget’. Article 2 had already demonstrated that in turn transport is ‘eating the UK carbon budget’; that both of these trends are unsustainable as we approach Year (Net) Zero in 2050, by which time all transport carbon emissions ought to be ‘off the system’; and that both are occurring as a result of long-term policy frameworks for roads and aviation deliberately promoted by the top policymaker of all, the Department for Transport (DfT).
Now this article shifts that perspective – from the policymaker to the lawyer – where, because of the special expertise involved, the background is not generally well-known by climate and transport campaigners. It asks what does the law of the land say about the legality of what the DfT policy maker, and the UK government as a whole, have been doing about the past and future transport emissions pathway – as driven by those two policy frameworks – and whether they are capable of being challenged in the courts? Has the DfT by its contribution to statutory mechanisms bent the law in its own favour, and has it upheld the spirit as well as the letter of the law? By the end of the article you’ll have a much greater understanding of, and maybe even an answer to, these questions, and also whether in 2025 there can and should be a legal showdown between the DfT and the Climate Change Act itself. If so, how can that be accomplished?
But a word of warning: the analysis of this article is dense and complicated so if you wish, read it in reverse. Start with the summary of conclusions at the end, then scroll up to read the ‘Case for the Prosecution’, and afterwards work your way through the rest of the analysis.
Like any COURTROOM DRAMA this article will have all the usual features: the Case for the Prosecution, one for the Defence, a crucial ‘Exhibit A’, etc. And M’learned Friends will be donning their wigs and gowns in quite a number of proceedings. But there are some particular twists to this story. It will not be the first but maybe the third time when adherence to the principal requirements of the 2008 Climate Change Act (CCA) has been brought to court. Very significantly, on both previous occasions the government was found ‘guilty’ in judicial reviews brought by Friends of the Earth, with the decisions setting some exacting precedents for a possible third retrial, and a suspended sentence dependent on future good behaviour.
And, as in the Horizon Post Office scandal, where there’s also been a prior sequence of legal cases, scrutiny in parallel of the PO governance process, in the shape of the public inquiry presided over by retired judge Wyn Williams, has pointed to ultimate causal responsibility for its hugely damaging but previously hidden consequences residing in a decades-long failure by a government department to discharge its proper responsibilities – hint, hint.
Lastly, the cases around transport emissions have had to be brought by civil society in the form of a request for judicial review (JR) of decisions the government has previously taken. This is always going to be an unequal match, on a David v. Goliath scale, incurring considerable expense and risks; many of the JRs are attempted by local campaigns fighting a road or airport capacity expansion scheme against all the odds; and it can be haphazard: ‘you win some, you lose some’. We should therefore pay tribute to this rather limited number of intrepid campaigner organisations and individuals. Recent increases in JR activity have led to what seemed to be a retaliatory response by the Conservative government when it commissioned the Banner Review as a result, it said, of ‘a concern in government and amongst some stakeholders that unmeritorious legal challenges to development consent orders were causing significant undue delay to the delivery of nationally significant infrastructure projects, with consequent detriment to the public interest’. Yes, (Conservative peer) Lord Banner KC, but what is ‘the public interest’ in this instance?
BREACHES OF THE LAW? Before we can proceed into court, we first have to examine ‘what’s the charge; has the law been followed correctly?’, because the defence will deny there’s even a case to answer. Is there a basis for the accusation that the DfT has been acting – and continues to do so – in disregard of the Climate Change Act? You need to start with a detailed examination of the precise text of that law to see whether such a claim can be stood up. And you’ll also have to demonstrate ‘intentionality’: that an offence was not accidental, or occurred through justifiable ignorance, but rather as part of a systematic pattern of behaviour.
Prima facie, to use some legal terminology – ‘upon initial examination, sufficient corroborating evidence appears to exist to support a case’ – a clue that there’s been a breach of the law would be in the quantifiable fact that there’s been no transport decarbonisation at all in the first 30 of the 60 year period set by CCA Section 1. That’s been demonstrated exhaustively by articles 2 and 3, which as an expert witness statement can be our Exhibit A.
In the CCA, Section 13/1 is the critical clause, the construing of which ultimately requires a court adjudication: ‘The Secretary of State must prepare such proposals and policies as the Secretary of State considers will enable the carbon budgets that have been set under this Act to be met.’ Just look at those three verbs – ‘must prepare’, ‘will enable’ and ‘to be met’ – all in relation to the set of ‘proposals and policies’ that the government has to bring forward at least every 5 years after successive carbon budgets are adopted. And who is the ‘Secretary of State’ (SoS) that must meet this obligation?
Because, immediately, we have to factor in a constraining qualification concerning S.13 within Justice Holgate’s judgement on 22nd July 2022 on the first Friends of the Earth judicial review. One of his list of 11 axioms of ‘paramount importance’ for interpreting the CCA statute is: ‘The carbon budgets and the 2050 target relate to the whole of the UK economy and society and not to sectors.’ FOE1 para. 202(x) – scroll down 3 paragraphs for links to a note on the sources for this article and various legal papers and judgements The implications of this for S.13 were explored in another judicial review launched in August 2022 by the ngo Feedback – which campaigns around food and agriculture issues – on the grounds that ‘the Government’s failure to budget its food strategy towards Net Zero was arguably unlawful under the CCA 2008 which says the Government must put in place policies to meet carbon budgets.’ This turns on an interpretation of whether the ‘Secretary of State’ required to act in S.13 is any Secretary of State across government, as Feedback were contending, something which would then bear upon JRs brought against the Transport Secretary.
Feedback’s request for JR was rejected in December 2023 (as was the subsequent appeal) on the grounds that the S.13 ‘Secretary of State’ (SoS) is solely the SoS for Energy Security & Net Zero (ES&NZ – a post currently occupied by Ed Miliband MP), and that consequently a JR brought against the DEFRA SoS must fail. Feedback then made this dramatic claim concerning the court judgement – A failed application for judicial review reveals fatal flaws in the Climate Change Act, arguing that the CCA ‘implementation framework is such that net zero can’t and won’t be met’ because ‘the ruling established that secretaries of states – other than DESNZ – are not compelled under the Climate Change Act to develop proposals and policies to reduce emissions. They are not bound by the Section 13 obligation’.
That was Feedback’s interpretation and it’s true that, as a consequence of this S.13 ruling, some grounds within aviation JRs against the government’s ‘Jet Zero Strategy’ – being brought by the ngo Possible (original claim October 2022; revised claim May 2024) and campaigners against Leeds Bradford airport expansion (GALBA) – have been withdrawn because they were challenging the ‘wrong’ SoS: for Transport rather than ES&NZ. This then establishes a legal puzzle: how will it now be possible for transport’s impacts on the climate to be challenged in the courts?
But – with due respect to Feedback – I thought at the time and still now that the court judgement was correct, and that the Feedback JR claim had misinterpreted the statute. What was needed instead was to find an alternative way to apply this key clause in the CCA so as to get round what I’m calling the ‘S.13 Global Feedback [GF] Vulnerability‘ (for some reason the Feedback JR was submitted in the name of Global Feedback). My view is that this apparent setback can in fact point us towards another approach to bringing future legal challenges about failed transport decarbonisation hinging on S.13 – see below under ‘the Case for the Defence’ and then the ‘Case for the Prosecution‘.
[download the sources note for this article which contains extended quotations from relevant JR judgements and papers. One of the reasons why campaigners are not well-informed about the legal background is because the large volume of legal papers associated with any JR is usually not available; in addition court procedure limits their public disclosure or discussion before a hearing. For the detailed background to the two successful FOE judicial reviews – usually identified by the acronym FOE1 and FOE2 – see this briefing published in July 2023 (and covering both the specific grounds of the original July 2022 judgement and the organisation’s intention to launch a second JR); another briefing after their second victory on 3rd May 2024 (scroll down for the extensive ‘related documents’ section); and this November’s briefing about the changes the government needs to propose by the May 2025 deadline set by the court in FOE2 to resubmit a lawful Climate Plan. Although it does not state this, the implication of that briefing must be that if the government’s 2025 Climate Plan is insufficient and unsatisfactory then a third FOE JR would follow. The legal papers for the 3rd December 2024 hearing about the Transport Action Network JR against the planning framework underpinning roadbuilding are here. Because …]
The other volume of legislation to pull down from the shelf is the 2008 Planning Act (PA) – which established something called ‘national policy statements’ (NPSs). As the government guidance states, the PA ‘created a new development consent regime for major infrastructure projects in the fields of energy, transport, …’ Section 5 establishes ‘national policy statements’ for various categories of infrastructure which, because it’s the Secretary of State who is subsequently required to determine development consent orders only in accordance with the content of that NPS, its proposed wording must be consulted upon and then approved by Parliament before designation. Section 6 sets out the procedure by which an NPS can be periodically reviewed. This means that it’s the DfT – who prepare the transport NPSs – which is responsible for determining how the increased carbon emissions which these planning applications will cause is then factored into the scheme assessment process.
Not surprisingly this issue is already a major concern for ‘capacity’ campaigners, and there have been an increasing number of attempted judicial reviews in recent years of the two transport NPSs: the National Networks NPS for roads, and the Airports NPS. But as a generalisation they’ve found it difficult to be ultimately successful, a track record which can be explained simply by the fact that it’s the DfT-imposed and specific wording in these NPSs which is determining how both the scheme applicant and application decisionmaker should limit and rule on the carbon impacts generated by a new road or airport expansion scheme. The DfT is ‘putting a finger’ on the scales of justice in a way which unfairly tilts the outcome in favour of increased emissions. For that reason, these judicial reviews are completely legitimate ‘public interest’ challenges, pointing to this inherent policy tension: the CCA has established a general framework whereby all emissions must be reducing and yet here’s a DfT process promoting new infrastructure which is pushing them in the opposite direction!
The original National Networks NPS – designated in 2014, so some 5 years after the CCA – works by setting a ‘carbon impact test’ that could never be failed because it involved measuring the emissions generated by a single additional new road scheme against the entire UK carbon budget see the wording in the downloadable sources note for this article, example [1] The government was eventually forced to review the text of the 2014 NN NPS by a Transport Action Network (TAN) JR in 2020, just one of the reasons being that its approach did not allow for the transition to Net Zero in 2019 and consequent tightened emissions pathways in 2020’s CB6. When a revised National Networks NPS eventually went out to consultation in 2023, TAN challenged every aspect of it as continuing with the ‘tilted playing field’ of the 2014 version, but that response was ignored in the final version adopted by the Conservative government on the very last day before Parliament was prorogued for the July 2024 general election.
A central accusation of the current TAN JR is that the 2014 carbon impact test has been reinserted into the 2024 NPS but with a slightly different wording see example [2] in the downloadable sources note. Now paragraph 5.40 establishes the intentionally vague obligation that ‘The [Transport] Secretary of State should be content that the applicant has taken all reasonable steps to reduce the total carbon emissions at all stages of development’, which has no testable meaning. As TAN describe it – in the briefing for their latest JR of the 2024 NPS – the revised NPS instructs decision-makers in the planning system to ignore carbon impacts of road schemes, in particular user emissions, on the basis that the government supposedly has a credible plan [i.e. via the Transport Decarbonisation Plan] to tackle emissions on an economy-wide basis. Within their JR statement submitted to the courts TAN says: ‘The test is impossibly high: it has never (to the Claimant’s knowledge) resulted in refusal of development consent for an individual scheme and is never likely to.’ The deployment of these ‘de minimis’ mechanisms – another legal term – to further both roads and airport expansion schemes is a core element of the DfT’s ‘Case for the Defence’ and will be examined in the next section.
The irony is that whilst the Planning Act received Royal assent on exactly the same day as the Climate Change Act – 26th November 2008 – they are now acting in opposition to each other: the CCA providing the legal and delivery framework for the continuous reduction of UK CO2 emissions whilst the NPSs derived from the PA are supplying the DfT with a mechanism by which they can evade the CCA’s obligations. However it’s the Climate Change Act which ought to be front and centre, and as noted it’s therefore extremely fortunate in terms of the case law that we start with not one but two successful ‘prosecutions’. As FOE have stated: ‘In July 2022, a landmark judgment was handed down by the High Court in relation to legal challenges brought by Friends of the Earth, ClientEarth and Good Law Project. The High Court found that the Government had breached its duties under s.13 and s.14 of the CCA when it adopted the Net Zero Strategy in October 2021.’
Lastly, what about ‘intentionality’? Can the DfT argue that it simply wasn’t aware that transport emissions were rising, or that this wasn’t occurring as a result of policy actions it had taken? One of the conclusions in the executive summary of May 2024’s Will Labour fail its transport decarbonisation test? report makes this comment on that attempted alibi: ‘…in the decade before 2019, transport emissions had reduced by just 3MtCO2e (from 170.2MtCO2e to 167.2 MtCO2e) … [which has come about because of] the impact of a number of policy frameworks, for roads and aviation. Worse still, these two dominant policy stances have now been inserted within 2021’s DfT’s Transport Decarbonisation Plan, the strategy which is meant to be driving downwards the carbon emissions that those two modes have inflated.’ page 5 The report examined in great detail how it is these two overarching policy frameworks – the fundamental drivers of continuing transport carbon emissions, but resolutely defended and advanced by DfT – which explain the failure to decarbonise, and therefore argues that they need to be withdrawn and/or revised.
The fourth paragraph of article 2 Transport eats the UK carbon budget – made this comment about how the DfT had responded to the implications of the article’s numerator/denominator analysis of the transport emissions pathway: ‘But what if the department responsible for just one emissions sector numerator refuses to reduce, and indeed started to ‘game the system’, essentially by persistently maintaining ‘everyone else can decarbonise but we’re not going to, and the other sectors can make up the shortfall’? As indeed the Department for Transport lawyers have most determinedly argued when challenged by judicial review’. In article 2 that’s followed by a substantial quotation from a DfT rebuttal statement providing an example of just that – see the sources note download example [5] paragraphs 23.
What do I mean by ‘gaming the system’? The policy stance of the DfT, knowing that the wording of the CCA act does not specifically set emissions sector targets (e.g for transport) can be summarised like this:
Even though the Climate Change Act requirement that emissions must be systematically reduced at the ‘whole economy’ level has been known since 2008:
in relation to roads – the DfT policy framework instead will project a continuing increase (to 2050) in road traffic, and promote a continuing increase in the capacity of the strategic road network, both of which must result in an increase in carbon emissions. This position applied in the period before EV transition was decided in 2020, but also afterwards seeing that by 2030 80% of vehicles will still be ICE (internal combustion engines).
– in relation to aviation (and quite outrageously) – the DfT policy framework will intentionally plan for and promote an increase in passenger demand, flights and airport capacity such that aviation emissions in the 2040s/2050 will still be above their CCA 1990 baseline level.
Because the DfT had done the modelling they knew that these two policy frameworks would embed demand and capacity (and make investment in the latter into future ‘stranded assets’); that this would cumulatively erode the UK carbon budget; and by deliberately delaying inevitable decarbonisation would either increase the steepness and technical/political difficulty of the carbon reduction slope when it was finally enforced or, still worse, make it impossible to deliver. The DfT roads and aviation policy frameworks between them have ‘normativised’ a policy and public understanding that ‘transport emissions are the exception and do not need to be reduced. Indeed they can be increased!’ – that is, increased in terms of individual road & airport expansion schemes and relative to the CCA reduction trajectory.
This is ‘gaming the system’ on a tragically delusional scale, the consequences of which were entirely predictable and inevitable. It’s been a deliberate decision by DfT to proceed down this route which scotches a ‘lack of intentionality’ plea.
THE CASE FOR THE DEFENCE The first of the two DfT defences revolves around what I’ve termed the ‘S.13 GF Vulnerability’, created by the ruling on the Global Feedback JR relating to Section 13 of the Climate Change Act see above. This argues that, because the CCA only formally applies at a ‘whole economy’ level, and the statute does not require quantified sector level reductions, or set sector level targets, then the DfT is under no legal obligation to reduce transport emissions. Consequently any JR invoking S.13 in relation to transport emissions should be rejected and ‘let’s carry on, business/ emitting as usual’. Regardless of what the facade and texts of documents such as the Transport Decarbonisation Plan and Jet Zero Strategy may imply, this is the formal legal defence utilised by the DfT lawyers as you’ll find expressed in their rebuttal statements against the roads and aviation JRs.
To examine the evidence for yourself, go to example [5] in the article sources note, an extended extract from a DfT 2022 rebuttal of the Possible aviation JR, complete with my annotations on how its statements should be interpreted. Reading it, what occurred to me was ‘here is an opportunity to turn the force of an adversary’s arguments, ju-jitsu style, back against them’. For the moment – since this will to be the critical hinge point in developing a successful Case for the Prosecution which (it’s hoped) could overcome the ‘S.13 GF Vulnerability’ – let’s resume this analysis in that section, below.
The other principal DfT ‘defence’ argument, as mentioned above and derived from the 2008 Planning Act, is its deployment of de minimis mechanisms, incorporated into the transport national policy statements. These apply to both road and airport’s capacity expansion planning applications, with the intention again of preventing challenges about a scheme’s carbon impacts being used to secure its rejection. De minimis non curat lex is a Latin legal phrase meaning “the law does not concern itself with trifles”. As one commentator describes it, it’s the ‘the legal principle that courts will not sit in judgement for trivial matters or petty issues. This adage has its origins in Roman law, which established that cases dealing with small, insignificant matters were unworthy of the courts’ time and attention. The essential meaning is that judges and courts will not consider legal cases or arguments over small or trivial matters that result in little to no actual damage or consequence.’
In roads policy de minimis mechanism are applied within the National Networks NPS (NNNPS) by asserting that the emissions increases that a single new road scheme in isolation will generate are too small to impact on the entire UK carbon budget. You can see that in fact this is a inverted application of the numerator/denominator fraction [back to article 2 for an explanation of that if you’ve not yet read it]: it’s saying that the carbon impacts of an individual road scheme/airport expansion numerator in isolation can only represent a very small percentage share of the UK carbon budget denominator. That is, emissions from just one scheme only act ‘at the margin’. Such ‘at the margin’ analyses ought in fact to be acting in the opposite direction: whilst emissions from just one proposed scheme might be relatively small it’s the carbon impacts of roads and airport expansion programmes as a whole, and as they continue year on year, that policy needs to concern itself with. Again we’re back to the DfT’s unresolved policy tensions: the default framework of the CCA is that all policy frameworks should be compliant with its downwards NZ trajectory, yet the DfT is continuing to embed de minimis mechanisms within NPSs in a way which facilitates emissions collective upwards expansion, consequently acting against CCA fulfilment.
The Labour Transport Decarbonisation Test report in May 2024 recounts on page 24 how in October 2023 the then Labour opposition committed to reviewing all the sectoral NPSs in pursuit of its top priority to grow the economy. In July 2024 and in government, that review was then reduced to just ‘appropriate’ NPSs, to be completed within a year, but subsequently the process to undertake this has disappeared from view. On 3rd December 2024 the court allowed the TAN JR, originally lodged against the NNNPS revision undertaken by the Conservative government, to proceed to a next stage but now against the Labour government, which will play out across the first half of 2025. The TAN briefing asks the question ‘Why is a Labour government in court defending its Tory predecessor? A good question’. In March 2024 the Conservative government stated in relation to its revised NPS ‘It is not the policy of government to reduce demand for travel’ which aligns closely with PM Starmer’s November statements that, having set an ambitious 2035 NDC target nonetheless ‘What we are not going to do is start telling people how to live their lives, we are not going to start dictating to people what they do’.
For aviation policy the same de minimis mechanisms are also deployed. The June 2018 Airports NPS included an identical wording giving effect to its de minimis approach: ‘Any increase in carbon emissions alone is not a reason to refuse development consent, unless the increase in carbon emissions resulting from the project is so significant that it would have a material impact on the ability of Government to meet its carbon reduction targets, including carbon budgets.’ paragraph 5.82. In the light of the quantification contained in last week’s article 3 – showing that aviation is indeed consuming the carbon budget – that statement is increasingly legally vulnerable.
Nonetheless an example of de minimis being used to overturn climate objections is: when Bristol Airport appealed against a rejection by North Somerset Council of its planning application to expand, that decision was found by the Planning Inspectorate to be insufficient to justify refusal because ‘the aviation emissions are not so significant that they would have a material impact on the Government’s ability to meet its climate change target and budgets.’ Planning Inspectorate report on Bristol airport appeal February 2022 paras. 212-216, emphasis added.
May’s Labour Decarbonisation Test report page 39 pointed out a number of ways in which the Airport NPS (ANPS) is no longer compatible with NZ, which would be one of the reasons why the government would have to review it or potentially face another JR. It might be argued back that the ANPS only applies to the SE airports system, but that probably explains the entirely coincidental timing that in the same month as that NPS’s adoption the DfT also published Making the best use of existing runways (‘Best Use’, June 2018) which concluded that: ‘As a result of [an aviation strategy] consultation and further analysis to ensure future carbon emissions can be managed, government believes there is a case for airports making best use of their existing runways across the whole of the UK.’ Best Use para 1.25, emphasis added
But there are inconsistencies within Best Use & JZS, and across to the new 2019 Net Zero emissions framework. About carbon emissions, Best Use stated in 2018 that: ‘On balance, therefore, it is likely that [various proposed] measures would be available to meet the planning assumption under this policy’, with the ‘planning assumption’ being an upper limit of 37.5MtCO2 for aviation emissions. However 2020’s CCC CB6 subsequently reduced that limit to 23MtCO2, and yet 2022’s Jet Zero Strategy nonetheless still maintained that ‘The Government’s existing policy framework for airport planning in England – the Airports National Policy Statement (ANPS) and …Making Best Use of existing runways – have full effect, as a material consideration in decision making on applications for planning permission. Our analysis shows that it is possible to achieve our goals without the need to restrict people’s freedom to fly.’ JZS page 74 emphasis added The CO2 model for Best Use however also indicated that both its application to airports across the UK and specifically allowing for a third runway at Heathrow (HR3) would nonetheless breach the then 37.5MtCO2 planning assumption.
In other words JZS in 2024 continues to support Best Use and ANPS’s validity within the planning framework despite the fact that its carbon assumptions are not NZ compatible, with the airport expansion Pandora’s box apparently now opening still wider under Labour. Best Use 1.5 only excludes Heathrow from its remit – so it applies to all the other airports in the SE system – whilst the Airports NPS must (surely) continue to apply to Gatwick expansion, about to be decided by the SoS Transport, because of its detailed assessment of the Gatwick expansion option. At the moment, as the Labour government is pondering the possibility of an open flouting of the CCC recommendation against airport expansion they therefore have this additional planning framework complication. If either Best Use or the Airports NPS are cited in a 2025 Gatwick decision, then a JR challenge might be forthcoming, either from the Gatwick objectors (in the situation where the application is approved) or from Gatwick itself if it was refused – on the grounds that the NPS assessment from 2018, which supported a Heathrow 3rd runway (HR3) over a Gatwick option – is now out of date, particularly in the circumstance where HR3 is (at the moment at least) not proceeding.
So the two planks of the DfT ‘Case for the Defence’, whilst still operative, are maybe more fragile than they appear. Challenges on climate grounds have been held at bay by the ‘S.13 GF Vulnerability’ but if that could be pushed aside then they would certainly advance again. The continuing use of de minimis mechanisms are embedded within the NPSs (and within the Jet Zero Strategy via Best Use), allowing capacity expansion planning applications to overcome objections for the moment. But there’s a possibility that the TAN JR against the 2024 National Networks NPS might make headway in 2025; maybe a JR of the Airports NPS might emerge from Labour’s apparent intention to ignore the CCC recommendation against expansion; and, seeing that the government has placed such an emphasis on reviewing the NPSs within a year then there’s now only a few months longer to wait for whatever that comprises.
What the campaigners need to do in the New Year is reassess how to exploit the government’s fundamental weakness within the Climate Change Act framework: that expanding roads & airport capacity and transport’s rising share of UK emissions will make it impossible for the Energy Security & Net Zero Secretary of State to bring forward a lawful carbon budget by May 2025. If the scale of the transport emissions ‘effort share’ reduction can be enlarged then the existing expansionist NPS/JZS planning frameworks would inevitably become incompatible with that, and therefore have to be reviewed, just not in the direction Labour intended.
In terms of legal stratagem therefore acting simultaneously against both planks of the DfT ‘Case for the Defence’ should therefore be the strategic objective of the …
CASE FOR THE PROSECUTION So far we’ve already seen that there’s a strong Prima Facie case evidenced by ‘Exhibit A’, and that the prosecution legal team for UK climate plan JR is on a winning streak: ‘2 out of 2’ to date; that should increase the chances of making it ‘3 out of 3’. But to advance any further it’s now necessary to defuse the ‘S.13 GF vulnerability’: the DfT position that the CCA Section 13 responsibility to ‘propose policies & programmes’ for decarbonisation does not fall on the SoS Transport and therefore can’t be discharged via S.13.
Seeing that (e.g the aviation) JRs already lodged have already had to withdraw their carbon impact grounds in response to the S.13 GF vulnerability’, the $64,000 question therefore is: Is it possible to not only swerve round that vulnerability but then mount a new JR claim in 2025 that will act against the DfT’s intended continuing erosion of the UK carbon budget, and in a way which also capitalises upon the two FOE successful JRs of the government’s overarching Climate Plan so as to help secure a third victory if that proves necessary? That would be something of a Holy Grail.
To my (it’s true legally inexpert) mind I think there is, and it’s this: if it’s agreed that the S.13 responsibility rests with the ES&NZ SoS and not the Transport SoS, why shouldn’t the former (Ed Miliband), when undertaking the development of his ‘whole economy’ emissions reduction plan – which he’s doing right at this moment – instruct the latter (Heidi Alexander) to bring forward a transport emissions reduction tonnage and pathway of sufficient size that will allow him in turn to propose a lawful Climate Plan with reduced delivery risks? As the designated S.13 ‘Secretary of State’ it must be within his powers to do this or (negatively) to refuse to accept an insufficiently sized reduction if that is initially offered by the DfT. This doesn’t require the existence of formally designated individual emissions sector pathways and targets about which individual SoSs can be JRd, which was the concern underlying the Global Feedback challenge. In fact it’s just what the government already does, as the legal papers for the FOE2 case revealed.
To understand how such an approach can be constructed, step-by-step, we need to start with Justice Sheldon and his FOE2 3rd May 2024 judgement. In example 3 in the sources note look at paragraph 26 in conjunction with previous paragraph 24. The penny dropped immediately I read these words: ‘… The DEFRA return also stated that the department calculated a total gap of 13% between their Net Zero Strategy effort share (that is, the share of emissions which each relevant government department agreed that it would aim to contribute to the overall target) and the current quantified list for England in CB6, and a gap of 13% for the UK.’ emphasis added Turning then to the bundle of legal papers that FOE released that same day it was possible to see for the first time what climate campaigners, let alone the public, did not previously know: that the government already operates a framework of emissions sector targets in the form of ‘effort shares’ which are negotiated, and then set, under the authority of the S0S ES&NZ.
It turns out that, as the FOE2 JR developed, it had been agreed, almost haphazardly, that in the document discovery and legal argument for the case the DEFRA emissions ‘effort share’ should be used to illustrate the case issues. The legal papers published by FOE then revealed in great detail the sequence and methodology of the process by which the two departments then developed an agreed internal DEFRA emissions reduction ‘effort share’ offer. I asked FOE ‘were the Department for Transport ‘effort share’ numbers and approach also disclosed by the discovery process?’, because I thought that would shine a spotlight on the credibility of how the DfT had gone about this same process. Unfortunately the answer from FOE was No. But, if FOE was to proceed to a third JR sometime in 2025, then surely they should ask that it should be the DfT effort share – precisely because it’s by far the largest emissions sector within the UK carbon budget – that should be tested within the judicial review.
Thus any JR relating to transport emissions and/or the S.13 responsibility would not be against the Transport SoS – because to do that would recreate the ‘S.13 GF Vulnerability’ – but rather against the ES&NZ SoS on the grounds that he had not fulfilled his essential responsibility to ensure that the ‘effort share’ proposed by the Transport SoS was sufficient to allow him in turn to propose a lawful climate plan. And what’s the rationale for transport being specifically targeted and scrutinised in this way? Why? – because of Exhibit A. No other emissions sector is of such a size, absolutely and as a percentage of the UKCB, that might prevent the SoS ES&NZ discharging his S.13 responsibilities; transport is uniquely in that position.
So far so good but how strong is this suggested legal approach? Fortunately I do have an actual legal opinion supporting it. It’s beyond ironical that it’s from the DfT lawyers themselves, and can be read in extenso in a Rebuttal statement they prepared in 2022 in response to the Possible aviation JR. What it’s arguing is (to paraphrase) that:
– it’s not the responsibility of the SoS Transport to bring forward proposals & programmes that will allow the CCA S.13 responsibilities to be met even though – as the Rebuttal fails to point out – it’s this department which is responsible for the largest emissions sector share; but
– it is the responsibility of the SoS ES&NZ to prepare and balance a whole economy climate plan (including the transport largest and ever-growing emissions share), but how that SoS should do this is not a matter for the DfT, in that they do not identify how or indeed whether the SoS Transport is assisting the SoS ES & NZ to undertake that task.
Thus there is now consensus about the S.13 responsibility. Both Prosecution and Defence would accept that it’s the responsibility of the ES&NZ Secretary of State to lead on the S.13 process. In my annotations of the Rebuttal document I noted ‘I agree!’ Here are some selected extracts from the DfT Rebuttal statement which communicate both the areas where the SoS Transport does accept responsibility, and where they do not but instead regard it as applying to the SoS ES&NZ. You can read a fuller set (with my annotations) in the sources note for this article example [5].
‘… the SoS Transport’s proposed strategy is premised on providing people with the ability to access aviation travel to meet demand. The strategy … is about articulating the measures to achieve Jet Zero on the premise that people are able to access aviation travel, and therefore assuming that aviation capacity increases based on the modelled assumptions.’
‘ … there is no sectoral target for transport or any other sector, and that emissions in one sector, or in part of one sector, may be balanced against better performance in others. A net increase in emissions from a particular policy or project is managed within the government’s overall strategy for meeting carbon budgets and the net zero target as part of an “economy wide transition. …’
‘The principal purpose of s.13 is thus to impose a duty (addressed by the … the Secretary of State [for Energy Security & Net Zero, who is ] responsible for the functions under that part of the legislation) to prepare proposals and policies specifically in order to enable CBs to be met.’ [It is] ‘… a specific duty that relates to, and requires a high level, whole economy, judgement that can only be discharged by the Secretary of State with overarching responsibility for climate change mitigation who is best placed to view thepackage of measures in its entirety ….(namely, the [SoS ES&NZ] …’
If this legal stratagem is now available then the next steps would be to:
– immediately write formally to both secretaries of state requesting them to i) confirm that they accept this legal consensus and confirm they will continue to rely on it in any subsequent legal challenges; and ii) that they also accept that there is a strong ‘Exhibit A’ justification for the transport emissions ‘effort share’ now being reviewed in order to meet the May 2025 court deadline being at the centre of the discovery process and legal argument for any such challenge. Surely climate and transport campaigners should now be advocating loudly to the ES&NZ SoS that he must do this in order to properly fulfill his S.13 responsibilities. It’ll be too late to do this when the revised Climate Plan is published in May because by then the transport ‘effort share’ will have been baked in but will also be invisible to public view because the government hasn’t been pressurised to disclose it.
– request changes to the machinery of government so that the ‘effort share’ process and the departmental emissions numbers within it should be made publicly available at an early stage, and substantially before the government’s actual Climate Plan has been lodged; and should be subject to independent scrutiny, including by CCC and appropriate Parliamentary committees. Agreeing to such a transparent process in 2025 should be one of the conditions which campaigners should ask to be applied if SoS ES&NZ requests an extension beyond the May 2025 deadline.
The effect of this legal stratagem would be transformative and, for both secretaries of state, would allow them to demonstrate if required by discovery and in court what they had reasonably undertaken to substantiate the quantification, policy components, and potential delivery risks etc of the DfT effort share.
LEGAL SHOWDOWN … IN 2025? The title of this article is suggesting that in fact it’s essential that there is a legal showdown NOW in relation to the DfT’s position relating to transport decarbonisation and the underpinning policy frameworks for roads and aviation. For two reasons:
The DfT attitude to the CCA: The original May 2024 Labour transport decarbonisation test report, and now these subsequent articles have demonstrated that the policy makers in the Department for Transport, past and present, have a committed position towards the 2008 Climate Change Act which at best is ‘careless’ or ‘ambiguous’ but in actuality ‘undermining’ if not ‘wrecking’. This manifests itself in all sorts of ways, from routinely excluding references to the CCC and its recommendations in DfT reports on issues relating to decarbonisation (so as to pretend that they do not exist), being prepared to openly flout those recommendations in a way which no other government department does; up to watching impassively as the transport emissions Numerator/Denominator ratio numbers relentlessly erode the UK carbon budget to such an extent that the CCA itself will be destabilised. We’ll return to this point in article 5.
‘Time is running out’: The May 2024 report also referred repeatedly to the years towards Net Zero in 2050 ratcheting relentlessly down, so campaigners need to act with increased urgency. Article 3 set out a timetable in relation to the CCC aviation emissions pathway that must be revised downwards both before their CB7 publication on 25th February 2025 but then in subsequent months up to June when the carbon budget has to be adopted by Parliament. In parallel the Department for Energy Security & Net Zero must already be hard at work on its proposals for overall UK decarbonisation – about the detail of which Labour has remained completely silent in public – in order to meet the court deadline of May 2025. And the DfT, within its response to the Chancellor’s expenditure review due to be completed by June 2025 and in its specific infrastructure portfolio review, will have to continue grappling with the unresolvable contradiction within its prioritisation for capital expenditure between competing road and rail networks, and shrinking public funding. Across these months current and maybe new judicial reviews will continue to evolve, maybe also as a result of announcements about the government’s promised NPS reviews (which were promised to be completed by July).
It’s rarely indeed that campaigners find the ‘stars aligning’ in this way, and they should know they must now act quickly in order to take advantage of that good fortune. The first half of 2025 represent an unprecedented opportunity to challenge the Department for Transport’s threat to the Climate Change Act if, that is, those campaigners actually recognise that the threat is there. It’s an opportunity which (to continue the astronomy metaphor, about a comet’s periodicity of return) will not come again in this Parliament because the judicial review campaigning tool is dependent upon having governmental decisions or proposals to challenge. Doing so against a proposed government Climate Plan in May 2025 requires preparatory actions long before then. This article has already identified two actions that campaigners, and particularly Friends of the Earth, should be organising right now, but there’s so much more cross-organisation coordination that needs to be undertaken. And yet the New Year is now upon us!
CONCLUSIONS:
● The persistent determination of the roads and airports capacity campaigners to bring forward judicial reviews of expansion proposals, and particularly the successful Friends of the Earth JRs of the overall UK Climate Plan, are a vivid demonstration that we are now in an era of ‘decarbonisation by legal challenge’.
● The May 2024 Labour transport decarbonisation test report and these Transport North articles have provided a quantification of the scale of the transport emissions threat, which is now available to be used as a powerful Exhibit A in any legal challenge around the UK carbon budget.
● They’ve also shown that the DfT is a centre of climate change scepticism which is reflected in its legal as well as its policy stances.
● There is a way forward in 2025 for a 3rd judicial review of the government’s overall Climate Plan which can utilise this DfT position (and the resultant completely inadequate progress with transport decarbonisation) against itself by a revised understanding of how the CCA Section 13 responsibilities can be discharged (see the ‘Case for the Prosecution’ section above).
● That would work by leveraging an increased DfT climate ‘effort share’ which would in turn allow Secretary of State Miliband to bring forward a lawful Climate Plan with reduced delivery risks by the May 2025 courts deadline.
● However this does involve the future transport emissions pathway and associated policies occupying a more central place in any such JR. The legal challenge process should now by putting both the Secretaries of State for Transport and for Energy Security & Net Zero on notice that they must require (SoS ES&NZ) and offer (SoS DfT) a larger transport emissions ‘effort share’, and be prepared to publicly disclose what that is so that it can be submitted to independent scrutiny including by the Climate Change Committee.
● This legal stratagem however requires more effective (but also mutually beneficial) coordination between climate campaigners led by FOE pushing for accelerated UK decarbonisation towards 2030/35 targets, and transport capacity campaigners seeking to overturn the roads/aviation policy & NPS frameworks which are the drivers of continuing transport emissions.
● In the first half of 2025 campaigners also need to combine this legal stratagem with advocacy to CCC to revise its transport emissions pathway downwards (particularly for aviation) as per Article 3, and with increased communications around the public absence of a Labour transport decarbonisation strategy.
Comments/questions about this article to info@transportnorth.org.uk
Precautionary caveat: The analysis of this article – that transport’s uniquely large and rising share of the UK carbon budget is such that it will be difficult if not impossible for the government to propose a lawful climate plan in 2025- is a hypothesis which can only be proven by quantified modelling. This would need to be undertaken i) by the government itself in the form of a scenario demonstrating the opposite, and/or ii) by CCC within the modelling it is now undertaking for CB7.
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The fifth and final article in this series will be ‘6 months in: The answer to our question is … ?’, returning to the ‘test’ established by the title of our original report – to be published on 4th January 2025