Climate change litigation
Continuing a trend which has been gathering pace in recent years, 2021 saw several more high-profile challenges to various aspects of Government climate policy and particularly to carbon-intensive infrastructure projects. These have been dismissed by the appellate courts, which have shown themselves very reluctant to make judgment calls on matters which they view as being essentially political in nature. Since the Supreme Court overturned the judgment of the Court of Appeal that the Government’s Airports National Policy Statement was unlawful on climate change grounds in late 2020 (R (on the application of Friends of the Earth and others) v Heathrow Airport Ltd [2020] UKSC 52, [2021] PTSR 190), there has been a general consensus from the courts that decision-makers enjoy a wide margin of appreciation when it comes to translating the UK’s legally binding emissions reduction targets into actual policy. This degree of discretion, coupled with the growing weight of adverse precedent, means that climate campaigners seeking to bring public law challenges against Government policy are facing an uphill battle.
In R (on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWCA Civ 43, [2021] PTSR 1400, the Court of Appeal held that then Secretary of State Andrea Leadsom had carried out the balancing exercise under s.104(7) Planning Act 2008 correctly and was entitled to conclude that the benefits of the proposed new gas-fired Drax Power Station outweighed the environmental costs.
In Elliott-Smith v Secretary of State for Business, Energy And Industrial Strategy & Ors [2021] EWHC 1633 (Admin) (15 June 2021), [2021] WLR(D) 342, the High Court dismissed a challenge against the design of the new UK Emissions Trading Scheme. The Claimant, a waste industry expert and environmental consultant, challenged the omission of waste incinerators from the scope of the scheme and the high level of emissions permitted by the ‘cap’, and argued that the Secretary of State had failed to have regard to Articles 2 and 4.1 of the Paris Agreement. The Court accepted that the Paris Agreement was a relevant consideration for domestic decisions that affect the climate but afforded discretion to the Defendants’ interpretation of Articles 2 and 4.1.
Although not a court case, climate change considerations were also central to the Cumbria coal mine inquiry into the controversial ‘called-in’ application for permission to build the UK’s first deep coal mine in 30 years. The inquiry closed on 1 October 2021, after running for four weeks and raised a number of environmental and climate change issues, especially around the UK’s progress against its Net Zero targets.
The application to build an underground coal mine and associated development near Whitehaven in Cumbria was submitted by West Cumbria Mining (‘WCM’) and opposed by Friends of the Earth, and a small local charity which has been focusing on climate change since 2007: South Lakes Action on Climate Change (‘SLACC’). Cumbria County Council’s Planning Committee having previously considered the application four times, the Council has now adopted a neutral stance.
The proceedings were streamed live on the Planning Inspectorate YouTube channel and are now available to watch on catch-up. A decision is expected shortly.
Human Rights in pollution cases
Mr Justice Fordham handed down his judgment in R (on the application of Richards) v Environment Agency and Walleys Quarry Limited [2021] EWHC 2501 (Admin) on 16 September 2021. In this significant case, Fordham J held that a vulnerable five-year-old boy’s Article 2 right to life and Article 8 right to a private and family life under the European Convention on Human Rights were engaged by the threat to his respiratory health from dangerous hydrogen sulphide emissions from a nearby landfill site in Staffordshire.
In order to comply with its legal obligations the Environment Agency must:
“design and apply such measures as, in the Agency’s regulatory judgment, will do and effectively achieve the following outcomes in relation to emissions of hydrogen sulphide from Walleys Quarry Landfill Site: (1) the reduction of off-site odours so as to meet … the World Health Organisation half-hour average…; and (2) the reduction of daily concentrations in the local area to a level … below the US EPA Reference Value … as the acceptable health-based guidance values for long-term exposure” [64].
This is the first case of its kind in the UK courts to clarify that reduced life expectancy due to pollution constitutes a “real and immediate risk to life” for the purposes of Article 2. However, as discussed in a blog post on Francis Taylor Building’s Environmental Law Blog from Mark O’Brien O’Reilly, the judgment was clear that the triggering of a positive obligation under Article 2 in relation to environmental pollution will only occur in certain limited circumstances.
For a more detailed analysis, see also Esther Drabkin-Reiter’s case note for the Environmental Law Blog.
Costs in Judicial Review
On 31 July 2021 the Supreme Court handed down its judgment in CPRE Kent v Secretary of State for Communities and Local Government, [2021] UKSC 36, [2021] 1 WLR 4168, ruling that an interested party’s ability to recover costs in judicial review cases will vary according to the stage of the proceedings:
(a) Where permission is refused, the costs of preparing the acknowledgment of service and summary grounds can be recovered.
(b) If permission is considered at an oral hearing and refused, an interested party (and also a defendant) cannot normally recover the costs of preparing for and attending the oral hearing.
(c) If the case goes to trial and the claimant loses, an interested party will not be able to recover the costs of the trial hearing unless they can demonstrate they were entitled to be heard on a separate issue in the claim or had an interest which required separate representation from the defendant.
For a more detailed discussion of the case, see the UKSC Blog write-up from Matrix Legal Support Service.
