Anthony Rae 17th May 2024: If you want to get beneath the skin of what the 3rd May court judgement in favour of Friends of the Earth, Client Earth and the Good law Project means for transport in particular, then there are two good places to start. Firstly the legal briefing prepared by Friends of the Earth’s lawyers Katie de Kauwe and Niall Toru, and then the judgement issued by Justice Sheldon itself.

(The story so far: the government’s overall October 2021 Net Zero Strategy was taken to court in 2022 and found wanting, so had to be revised; then that new version, now called the Carbon Budget Delivery Plan (CBDP – March 2023) was also judicially reviewed for the same reason;, and on 3rd May 2024 was found to be unlawful as well!)

Reading through the judgement – it’s only 50 pages! And the first 25 are an intriguing account of how the civil servants went through the process of producing that revised CBDP (which then failed) – I came across this intriguing statement in paragraph 26:  ‘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. 63% of the gap at UK level was accounted for by changes to their policy.’

Hold on, what’s that reference ‘effort share’ that’s ‘the share of emissions which each relevant government department agreed it would aim to contribute to the overall target’? This must be describing what commentators have pessimistically been interpreting as a weakness in the drafting of the 2008 Climate Change Act: that it set a national or ‘economy wide’ decarbonisation target but not one for each emissions sector, and therefore the government department responsible for that. This really matters for transport because it’s by far the largest carbon sector, now making up more than one third of the entire UK carbon budget, and having 70% of what is called the ‘decarbonisation’ policy gap, where there are insufficient adopted policies to deliver the necessary carbon reductions.

So maybe this ‘department by department effort share’ are de facto proxy for the emissions sector targets that the CCA does not set. My next thought was: what is the quantified ‘effort share’ that’s been allocated to the DfT? If we knew that we could start to scrutinise its adequacy, and then whether it’s been delivered or not. But – we don’t know what it is, because so far it’s been kept a secret, and in the various witness statements submitted for the court case, there wasn’t a document that identified the individual departmental ‘effort shares’.

But I did find this, in one of the witness statements that FOE so helpfully made access to in their legal briefing. It’s a RAG (red-amber-green) rating chart for another department which revealed the extent of the ‘delivery risk’ that they assessed applied to each of their proposed decarbonisation policies. (You can see what the RAG rating for all government policies was in November 2022 as they started work on the CBDP revision in the FOE online briefing). And it was on the ESNZ Secretary of State knowledge of the quantified extent of all the delivery risks within the CBDPs that the court challenge was won. Now, if we could get hold of this for the DfT, I wonder what the RAG rating for the policies of the Transport Decarbonisation Plan would be?