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Climate Change Challenge to Roads Strategy Fails

Climate Change Challenge to Roads Strategy Fails

Environment Bill

Mr Justice Holgate handed down judgment on 26 July 2021 in the case of R (Transport Action Network Ltd) v Secretary of State for Transport [2021] EWHC 2095 (Admin). The case was a climate change focussed judicial review of the Government’s second Road Investment Strategy (RIS2) set under s3 of the Infrastructure Act 2015.  Highways England is to develop and construct the road schemes identified in RIS2.  RIS2 covered 45 road schemes rolled forward from RIS1 and five new schemes, including the Lower Thames Crossing.  

TAN challenged RIS2 on the basis that, in setting it, the SSfT had failed to take into account the effect of the strategy on achieving the reduction objective in Article 4.1 of the Paris Agreement, the 2050 net zero target in the Climate Change Act 2008, and the fourth and fifth Carbon Budgets set under the CCA 2008.  It was said that these matters were so obviously material to the decision to set RIS2 that it was irrational not to take them into account.  TAN also argued that these matters could only be taken into account if there had been a quantitative assessment of the carbon emissions from the projects in RIS2 in 2050 and the period running up to 2050. 

On the Paris Agreement, Holgate J noted at [41] that the Supreme Court had made clear in R (Friends of the Earth) v Heathrow Airport [2020] UKSC 52 that “the Paris Agreement did not impose an obligation on any state to adopt a binding domestic target to ensure that the objectives of the Agreement were met”.  The Judge summarised Article 4.1 of the Paris Agreement as follows at [44]:

“Article 4.1 of the Paris Agreement acknowledges that some human activities will always generate GHG. Other actions can remove GHG from the atmosphere, such as the planting of trees and carbon capture and storage. The long-term goal of the Agreement is a balance between anthropogenic sources of GHG emissions and the removal of such gases by “sinks”. That in effect is what is meant by net zero. Article 4.1 seeks to achieve net zero globally during the second half of the twenty first century. The UK has committed itself to achieving that target in this country by 2050.”

TAN argued that the objective of Article 4.1 for the UK is that rapid reductions in GHG emissions should be achieved, ie that there is a need for urgency in the reduction of GHG emissions in the period before 2050.  The Judge noted at [107] that this was essentially the same approach to the Paris Agreement which had been advanced in the Packham and Elliott-Smith cases (neither of which succeeded).  

As to the domestic law principles in judicial review, Holgate J identified the following:

  • “for this type of allegation it is necessary for a claimant to show that the decision-maker was expressly or impliedly required by the legislation (or by a policy which had to be applied) to take the particular consideration into account, or whether on the facts of the case, the matter was so “obviously material”, that it was irrational not to have taken it into account” [74];
  • “the test for whether a consideration is “obviously material” is whether a failure to give direct consideration to it would not accord with the intention of the legislation and would be irrational” [76];
  • it was “well-established that where a decision-maker decides to take a consideration into account it is generally for him to decide how far to go into the matter, or the manner and intensity of any inquiry into it, which judgement may only be challenged on the grounds of irrationality” [12];
  • an irrational decision is “a decision which is beyond the range of rational responses by different decision-makers to a given set of circumstances or information, or which is based upon flawed logic” [13];
  • in relation to a “a high-level strategy in a macro-political field [which] is not used for planning or environmental controls”, “a less intensive approach to judicial review is appropriate” and “a claimant for judicial review bears a heavy evidential onus to establish that a decision was irrational, absent bad faith or manifest absurdity” [57]-[58];
  • in relation to “carbon emission modelling”, “the court should accord an enhanced margin of appreciation to decisions involving or based upon ‘scientific, technical and predictive assessments’ by those with appropriate expertise” [59];
  • in relation to a Minister allegedly leaving matters out of account, “the real question is whether the Minister was not aware of a matter which, as a matter of law, he was legally obliged to take into account” [72];
  • “in considering the legal adequacy of briefing to a Minister, it is necessary to have regard to the nature, scope and purpose of the legislation in question, including any matters expressly required to be taken into account, and the nature and extent of any matter which has not been explicitly addressed” [73];
  • it is “lawful for a ministerial decision to be reached on the basis of evaluation and analysis by experienced officials in his department followed by a briefing which provides a precis of material” [73];
  • “because it is not the function of the courts to assess the merits of a decision the subject of a claim for judicial review, it is seldom necessary for expert evidence to be adduced” [80].

On the first main issue of whether the Paris Agreement was an obviously material consideration in the decision to set RIS2, Holgate J explained that, in the Friends of the Earth case, “the Supreme Court decided that the Paris Agreement was not an obviously material consideration and so the SST had had a discretion as to whether or not to take it into account” [112].  He noted at [115] that, although s10(3) of the Planning Act 2008 “required explicit consideration to be given to the mitigation of climate change, the Supreme Court concluded that the temperature target in the Paris Agreement was not an obviously material consideration”.  

The Judge concluded at [115] that it was “clearly implicit in the reasoning of [the Supreme Court] that the “urgency” objective in Article 4.1 is not to be treated as an obviously material consideration”.  He therefore rejected TAN’s argument that “Article 4.1 was an obviously material consideration, in particular as regards the urgency of making reductions in GHG, which the SST was obliged to take into account” [117].

Mr Justice Holgate considered that “the real issue raised by this challenge is whether the SST failed to take into account implications for the net zero target in s1 of the CCA 2008 and carbon budgets leading towards that target, in the sense that these were obviously material considerations to which he was legally obliged to have regard” [117].  This was the second main issue.  

Holgate J concluded that the SSfT would have known of matters relating to climate change and road transport, including the framework under the CCA 2008, “the difficulties faced by the UK in meeting CB4 and CB5 generally”, “the challenges facing the road transport sector regarding climate change”, and “the policy commitment to reduce GHG emissions in the transport sector overall ‘further, faster’”.  

TAN argued, however, that there was an obligation “to take into account a quantified assessment of the emissions from the programme in RIS2 and to consider their impact on the ability of the UK to meet the net zero target in 2050 and the carbon budgets running to 2032” [118].  

The Judge said at [125] that “the issue of whether it would be irrational not to have regard to a consideration has to be examined in the context of the legislation and its objectives”.  He noted at [121] in this respect that “RIS is essentially a high-level strategy document providing for investment in the SRN” and that “Parliament has not indicated a requirement for the SST to take into account the effect of the strategy specifically on climate change”.

Holgate J’s reasoning on this second main issue can be seen in the following two passages:

“133. … In my judgment the fact that the numerical analysis was not provided to the Minister does not render the decision to set RIS2 open to legal challenge. … The briefing, albeit laconic, was a legally adequate precis of the analysis for the purposes of taking the decision to set RIS2, in the context of the statutory scheme and the policy material of which the SST was already aware. The numerical analysis was not an obviously material consideration which had to be taken into account by the SST personally. The relationship between the analysis and the net zero target in the CCA 2008 was adequately summarised in the briefing.”

“136. … The SST was advised of the impact of the programme on the net zero target. He did not need to be shown the supporting numerical analysis. Some people might think that it would have been better if the SST had been supplied with at least some of that analysis and that that would not have involved overburdening the Minister. But as Sedley LJ pointed out in the National Association of Health Stores case at [59]-[62], that is not the test for a public law challenge.”

Holgate J concluded at [142]:

“I reject the claimant’s contention that the SST was legally obliged to take into account a numerical assessment of how the predicted carbon emissions from RIS2 related to CB4 and CB5 or a cumulative assessment of emissions over a longer period. These were not obviously material considerations for the purposes of setting RIS2.”

The Judge also concluded that there was no clear error in DfT’s conclusions that “emissions from RIS2 were legally insignificant, or de minimis, when related to appropriate comparators for assessing the effect on climate change objectives” [159].  This led him to conclude that “the analysis carried out by officials was not an obviously material consideration which had to be placed before the SST for the purposes of setting RIS2”.  

TAN has said it was “shocked” by this judgment, but it appears to be a straightforward working-through of conventional judicial review principles applied to the facts.  It illustrates that judicial review litigation offers little scope for challenging the legality of decisions on macro-political issues involving political and economic judgements and predictive scientific assessments, which controversial decisions raising climate change issues will almost always be.  

Richard Honey QC was not involved in this case but is currently instructed by various Government Departments to defend a number of climate change related judicial reviews.