The Court of Appeal of England and Wales rules Heathrow expansion unlawful owing to climate change obligations

On 27 February 2020, the Court of Appeal of England and Wales delivered a decision in R (Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 214 declaring unlawful the proposed expansion of capacity at Heathrow airport with reference to the United Kingdom’s climate change obligations under international law.

This highly publicised judicial review before the Court of Appeal concerned several challenges brought by a number of local authorities, the Mayor of London and several environmental groups targeting the planning and policy process that purported to approve a third runway at Heathrow airport outside London. The Court of Appeal declared that the Government, in making policy for the Heathrow expansion, had failed to take express account of its climate change obligations under the Paris Agreement, adopted at the 2015 COP21 (21st Conference of the Parties) of the United Nations Framework Convention on Climate Change.

The Court of Appeal’s reasoning with respect to climate change obligations

The proposed expansion of capacity at Heathrow airport is set out in the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the south east of England” (the “ANPS”), issued by the Secretary of State for Transport in June 2018. The ANPS is a national policy statement prepared under section 5(1) of the Planning Act 2008. The judicial review faced by the Court of Appeal addressed a number of challenges to this policy.

The Court of Appeal emphasised the long-established limits of its role in relation to judicial review claims. It made it clear that it was not concerned with the political debate and controversy that surrounds the proposed construction of a third runway at Heathrow. The merits of expanding airport capacity remain the responsibility of the Government alone. Rather, the question before the Court of Appeal was whether the Divisional Court was wrong to conclude that the ANPS was produced lawfully.

The Court of Appeal considered four sets of issues: first, the conservation of natural habitats and of wild fauna and flora; second, issues relating to the assessment of the effect of certain plans and programmes on the environment; third, issues relating to the United Kingdom’s commitments on climate change; and fourth, relief. The first two substantive challenges failed.

In what is likely to be a key precedent for climate change litigation in the United Kingdom, the Court of Appeal held that the preparation of the ANPS did not meet the requirement under Section 5(8) of the Planning Act that policy statements must “include 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”. In the Court’s opinion, this required that the Secretary of State for Transport take account of the Paris Agreement, which the United Kingdom ratified in November 2016. The Court found that the Government had not done so on this occasion, an omission that was legally fatal to the ANPS in its present form.

In this case, the Court found it necessary to grant a remedy to ensure that the ANPS would not remain effective in its present form. The parties were given the opportunity to make submissions on the appropriate remedy, after which the Court held it appropriate to “declare the designation decision unlawful and to prevent the ANPS from having any legal effect unless and until the Secretary of State has undertaken a review of it in accordance with the statutory provisions”.

What’s next?

In its concluding remarks, the Court of Appeal underscored that it had not decided, and indeed could not decide, that there will be no third runway at Heathrow or that a policy supporting Heathrow expansion would be necessarily incompatible with the United Kingdom’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement. The Government now has the opportunity to reconsider the ANPS in accordance with the statutory requirements that Parliament has imposed.

Reportedly, the Government does not plan on appealing the Court of Appeal’s decision. By contrast, Heathrow chief executive John Holland-Kaye has stated that the airport would seek to challenge the decision at the Supreme Court, while at the same time indicating that Heathrow would work with the Government on a review of its policy to “demonstrate [that] expansion is compatible with the Paris accord on climate change”.

The Heathrow case in context

The decision of the Court of Appeal is noteworthy in that it demonstrates a willingness of the courts to uphold and enforce the Government’s commitments to mitigating climate change. The case forms part of a significant pattern of climate change litigation worldwide and was handed down just a few months after the December 2019 landmark Urgenda decision by the Dutch Supreme Court, which ordered the Dutch State to reduce, by the end of 2020, greenhouse gas emissions by 25% as compared to 1990 levels. Several climate change-driven cases have been brought against national governments before local courts around the world, including in Belgium, Canada, Colombia, France, Germany, India, Ireland, New Zealand, Pakistan, Switzerland and the United States. Such claims have also been brought against the EU before the European Court of Justice.

The Heathrow decision is the first major ruling in which a domestic court has confirmed that the Paris Agreement temperature goal has binding effect on a national government as against its own citizens. This decision may be influential for pending climate cases under way before the Irish Supreme Court (the third time a climate case reaches a country’s highest court, following Colombia and the Netherlands) and the French Administrative Court whose docket contains the so-called “Affaire du Siècle”.

However, the judicial practice emerging in this field is not uniform. In Austria, the Constitutional Court in June 2017 determined that international environmental law obligations, in particular the obligation to reduce greenhouse gas emissions under the Kyoto Protocol and the Paris Agreement, did not constitute a relevant factor in determining public interests that might prevent authorisation of the construction of a third runway at Vienna International Airport. In Germany, the Berlin Administrative Court in October 2019 dismissed a claim that the government’s failure to meet its emissions reduction target violated the rights to life and health, property, and occupational freedom under Germany’s Constitution and the European Convention on Human Rights, on the basis that the target for the year 2020 had been substituted by the adoption of a new Climate Protection Act which effectively postponed meeting that target until 2023.

Regardless of individual outcomes, the plethora of recent and pending litigation based on States’ climate change obligations suggests that governments should prepare themselves to face greater scrutiny of their climate and carbon emission policies and actions in the future, including by the judiciary.

For further information about these developments and other issues related to climate change litigation, please contact Graham Coop (Graham.Coop@volterrafietta.com) or Maria Fogdestam-Agius (Maria.Fogdestam-Agius@volterrafietta.com).

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