Without transport decarbonisation a Labour government WILL face legal challenge

In the last few weeks as this project reached its completion, another one – led by friends of the Earth, client Earth and good law project – was also reaching its conclusion, and it turned out to be most successful and significant one. On 3rd  May 2024 Justice Sheldon found in favour of their judicial review of the government’s Carbon Budget Delivery Plan which had been produced in March 2023 in response to the outcome of their previous judicial review of the former October 2021 Net Zero Strategy which Justice Holgate found to be unlawful in 2022.

Those judgements related to the UK decarbonisation strategy as a whole. The Will Labour fail its transport decarbonisation test? project concerns only the transport emissions sector, but that does happen to be the UK’s largest, which has so far achieved almost no carbon reduction against the climate change acts 1990 baseline, and where – as the analysis report presents – the policy responses brought forward by the DfT are stuffed full of climate risk and delivery risk. So it can be seen that both projects are stepping down parallel paths, and heading in the same direction.

What might that mean for the future? It’s too early to say and (in any case) I’m not a lawyer. What executive summary of the analysis report suggests tentatively is that ‘The implications of the Net Zero II judgement are yet to be crystallised but are likely to involve a testing of the relationship between the increased climate risk generated by transport policy and the requirement for a next Labour government to produce a lawful NZS, and a determination of whether the current unlawful position of the CBDP renders components of the transport infrastructure projects process unworkable until a revised Plan is found to be lawful after May 2025.’

The basis for that assessment is partly on a preliminary examination of the evidence referenced in Endnotes 267, 268 and 269 and the paragraphs on page 48 of the report. That includes the judgement itself and then the very useful legal briefing provided by Friends of the Earth’s lawyers Katie de Kauwe and Niall Toru. At the end of the latter you’ll find links to a number of witness statements and other documents submitted as part of the case. Unfortunately the Department apparently taken as an example for the review of the processes preparing the CBDP was DEFRA rather than the DfT, but one wonders what might be disclosed if that level of detail was to be made public as part of a properly transparent process of such significance for the general public.

But there’s also this suggestion from a transport action network briefing note relating to the consideration by the House of Lords of the draft revised national networks national policy statement that (fortunately) was held just 5 days after the Net Zero II judgement was handed down

Most commentators, whether the Transport Committee, academics or NGOs, had thought that until there is greater clarity in the NNNPS, legal challenges remain likely. But in light of the Government’s court loss on 3 May, a court defeat now appears inevitable were it to seek to designate the NNNPS. The Government is expected to be given a deadline of May 2025 to produce a legally compliant climate plan. Because of the scale of transport sector emissions and the gap that has emerged to meet targets, it will be difficult for a new NPS for surface transport to be agreed until economy wide planning has taken place.

As of today, although the draft NPS has been approved for adoption by the House of Commons, it has yet to be designated and therefore hasn’t come into effect. If that were to happen maybe it too would become the subject of an application for judicial review.

We’ll have to wait and see



Analysis Report

Issues Briefing


Analysis Report executive summary