Third Runway Plans at Heathrow and the Paris Agreement

On 27^th February 2020, the Court of Appeal ruled that plans for a third runway at Heathrow airport had been produced unlawfully: R. (on the application of Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214. In making the ‘Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England’ (‘the ANPS’) without reference to the Government's commitment to the provisions of the Paris Agreement on climate change, the Secretary of State had failed to comply with section 5(8) of the Planning Act 2008, which requires consideration of the Government's policy in relation to climate change. In a world facing a race against time to stop the climate crisis, requiring national governments to adhere to their political agreements and consider the environmental impact of such projects is paramount to prevent landmark climate change agreements from becoming merely symbolic.  

The issues on which the court had to decide were identified at [10]: (1) issues under ‘the Habitats Directive’; (2) issues relating to ‘the Strategic Environmental Assessment Directive’; (3) issues relating to the United Kingdom’s commitments on climate change, specifically in relation to the Paris Agreement; (4) relief.

The last ground succeeded: the Court of Appeal overturned the decision of the Divisional Court and held that the ANPS had been produced unlawfully. The reasoning was as follows. It was common ground that the Secretary of State had not considered and had thought that he was legally obliged not to consider the Paris Agreement within his decision making, [227]. Section 5(8) of the Planning Act 2008 requires the Secretary of State to include in reasons for the policy ‘an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change’. With reference to statements made by Government ministers such as the Rt. Hon. Andrea Leadsom MP,[212], the Rt. Hon. Amber Rudd MP, [213], and the Secretary of State, [215], it was found that it was clearly the Government's expressly stated policy to adhere to the provisions of the Paris Agreement on climate change, [216]. As such, the Government’s commitment to the Paris Agreement was a ‘Government policy’ within the meaning of section 5(8) which needed to be considered during the creation of the ANPS. The court also found that the Government must comply with the will of Parliament and its own firm policy commitments, [229]-[230]. Given these findings, the court declared the designation decision unlawful, and held that the ANPS would have no legal effect ‘unless and until the Secretary of State has undertaken a review of it in accordance with the statutory provisions, including the provisions of sections 6, 7 and 9 of the Planning Act’ [280].

There has been a global increase in climate change litigation in the last 5 years. J.Setzer and R.Byrnes found that as of May 2019, climate change litigation cases have been identified in at least 28 countries, with a total of 1,328 worldwide. More specifically, this decision is part of a trend of using the Paris Agreement in actions to legally challenge governments or private corporations. The Agreement has legally binding provisions in relation to the preparation of the Nationally Determined Contributions (Articles 4(2), 4(3), 4(8), 4(9)). However, it does not impose legally binding targets to reduce emissions to achieve the aim of keeping the global average temperature to between 1.5ºC and 2ºC above preindustrial levels (Article 2 of the Paris Agreement).

Recent litigation using the Paris Agreement has varied in its scope and success. In the landmark case of Urgenda Foundation v Netherlands, the court found that the Netherlands was under a positive obligation under Article 2 and Article 8 of the ECHR to take suitable measures to protect the residents of the Netherlands from dangerous climate change (at 5.8). The Netherlands’ commitment to the Paris Agreement was crucial in determining what that obligation meant in concrete terms. In accordance with the Agreement, the relevant obligation was to reduce climate change by 25-40% by 2020 (at 7.3.2 and 7.3.6).   

In Future Generations v Ministry of the Environment it was held that the lack of response to deforestation in Colombia ‘constitutes a serious ignorance of the obligations acquired by the State in the Framework Convention on Climate Change of Paris 2015, where Colombia, among other commitments, undertook an agreement to reduce the ‘deforestation in the Colombian Amazon,’ with the objective of reducing deforestation to zero in that region by 2020’ (at 11.3). This was one of the factors that the court considered in ruling that the Colombian State had not done enough to tackle deforestation in the Amazon.

The Hon. Justice Brian J Preston FRSN SC noted (at 16) that in Gloucester Resources Limited v Minister for Planning (2019) 234 LGERA 257, the Paris Agreement informed the Court’s analysis of the carbon budget and the impact of the proposed mine’s emissions on climate change, [439]-[450]. Further, the judgment cited the aims and guidance of the Paris Agreement in determining the impact the proposed mines would have on the environment: ‘[n]evertheless the exploitation and burning of a new fossil fuel reserve, which will increase [greenhouse gas emissions], cannot assist in achieving the rapid and deep reductions in GHG emissions that are necessary’ [527].

This decision is another example of the trend of using litigation to hold governments to their commitments under the Paris Agreement in domestic and international law. There is a clear desire from those challenging national governments to ensure that the Agreement does not become a mere political pretence. It is important to note that the Plan B decision is limited in scope: the duty in section 5(8) ‘does not even require the executive to conform to its own policy commitments, simply to take them into account and explain how it has done so’, [231]. Further, the court was at pains to emphasise that ‘we have not decided, and could not decide, that there will be no third runway at Heathrow’, or that such a plan would necessarily be incompatible with the UK’s political commitments on climate change, [285]. The court clearly wanted to highlight that they were not overstepping the mark. The aftermath of the Miller and Miller 2 decisions, and the ensuing media criticism of the judiciary, have perhaps made the courts wary of ensuring that they are not wading too far into political territory, even when invited to do so in the course of litigation. The continual tension over the exact demarcation of the separation of powers and the outer limits of judicial power will perhaps prove an obstacle to the UK courts becoming too involved in climate change issues, especially in relation to obligations under international law.

There are nevertheless factors which point towards future opportunities for the Paris Agreement to be used more powerfully in climate litigation globally. M.Nachmany and J.Setzer note that 1500 national climate change laws and policies now exist worldwide, of which 106 have been created since the Paris Agreement was adopted in December 2015. Of these 106 new laws and policies, 28 explicitly reference the Agreement, such as in Papua New Guinea, and Peru.  It is only a matter of time before this domestic legislation will be used to challenge governments that do not fulfil their commitments under the Agreement. 

Further, a number of cases currently being litigated across the world are attempting to use the Paris Agreement more forcefully. For example, the plaintiffs in the ‘People’s Climate Case’ are seeking a declaration that three EU Acts are void for failing to set adequate GHG emissions targets because they violate ‘higher rank laws’, including the Paris Agreement. In Milieudefensie v Shell The Hague District Court, seven environmental and human rights organizations in the Netherlands have filed a suit against Royal Dutch Shell for failing to align its business model with the goals of the Paris Climate Agreement. These cases also show that the Agreement is being used to challenge a range of institutions besides national governments, including private corporations and the European Union. 

In light of the increase in climate change litigation, what role can individual cases play in fighting climate change in general? First, even if cases are not successful, their journey through courts engages public awareness and debate around climate issues. Second, The Hon. Justice Brian J Preston FRSN SC notes (at 51) the ripple effect of litigation. In Sweden, PUSH Sweden, Nature & Youth Sweden, et al v Government of Sweden brought a similar claim to Urgenda, suing the Government for breaching its duty of care to its citizens in an environmental context. The claim failed, but it demonstrated the power of one successful case in sparking further attempts to hold other Governments to account in the same way. In the last month, fourteen local authorities and several NGOs have taken on the oil giant, Total, requesting that it be ordered to take the necessary measures to drastically reduce its greenhouse gases emissions in line with the objectives of the Paris Agreement. Third, litigation can hold Governments to account, if they sign and incorporate environmental policies into domestic law for political imaging or signalling purposes but have little intention of conforming to them. Finally, with the slow increase in cases that lay down the role that the Paris Agreement must play in decision-making, over time there is likely to be a rapid change in behaviour across a wide range of activities. For example, if the UK Supreme Court gives leave for appeal in the Plan B case, and the Court of Appeal decision is upheld, this will likely ensure that the Paris Agreement is considered in relation to all other environmental and planning decisions going forwards, slowly integrating climate change awareness into the decision-making process.

Overall, this decision is an important step forward in recognising the UK’s commitment to limiting the impact of climate change. It is possible that there will be an influx of similar cases that try to use the Paris Agreement to hold the Government to account, and it will be interesting to observe how willing the judiciary is to step into what could be viewed as political territory.