The CBDP was itself a revised version of the Net Zero Strategy, which had been quashed by Holgate J. two years prior, and aimed to remedy its legal flaws (R (Friends of the Earth Ltd) v SSBEIS [2023] 1 WLR 225 (“FoE (No.1))”. In the judgment of Mr Justice Sheldon, the SoS had still not lawfully demonstrated the government could meet the targets of their sixth carbon budget (“CB6”). 

The matter was dealt with as a rolled-up hearing. Five grounds of challenge were advanced (set out at [93] of the judgment):

Ground 1: The Secretary of State failed to take into account mandatory material considerations when purporting to comply with section 13 of the CCA 2008; 
Ground 2: The Secretary of State proceeded on the basis of an assumption that all of the quantified proposals and policies would be delivered in full, and this assumption was not supported by the information as to risk to delivery with which the Secretary of State was provided; 
Ground 3: The Secretary of State’s conclusion that the proposals and policies will enable the carbon budgets to be met was irrational; 
Ground 4: The Secretary of State applied the wrong legal test to section 13(3) of the CCA 2008 (“sustainable development”);
Ground 5: The Secretary of State failed to include in the CBDP information that he was required to include.

The Judge disposed of grounds 1 to 3 together because they turned on the same critique: that the SoS had inadequate evidence concerning the delivery risk to policies, and so he could not rationally conclude the policies would achieve their projected emissions reductions. Ground 4 was a self-contained issue of statutory interpretation concerning section 13(3). Ground 5 concerned the SoS’ duty to publish a consultation document under section 14. 

Ultimately, the Judge found that grounds 1 – 4 had all been made good. 

Grounds 1,2, and 3: A cautious approach to delivery risk 

The core of the claim on these grounds was that the SoS had inadequate evidence about the delivery risk to policies of the CBDP, such that he could not lawfully determine it was compliant with section 13(1).  

The SoS is required to meet the Carbon Budget by putting together, pursuant to section 13(1) CCA, a package of “proposals and policies” which he “considers will enable the carbon budgets” to be met. 

Of course, many policies come with “delivery risk”, that is, with uncertainty as to the quantity of emissions they will in fact reduce. That is inherent to the exercise of projecting the emissions impact of policies which “[involve] an evaluative, predictive judgment as to what may transpire up to 14 years into the future, based on a range of complex social, economic, environmental and technological assessments, themselves involving judgments (including predictive judgments), operating in a polycentric context” (at [141]). 

At paragraph 20, Sheldon J. quoted from the request made by the SoS to officials to provide their delivery risk information. The request explained that it was “clear”, pursuant to the judgment in FoE (No.1), that the SoS “needs sufficient information on delivery risks to make an informed judgment about whether carbon budgets can be met. This must include qualitative explanation of risks and planned mitigations…”.

The original NZS had provided the SoS with a traffic light system of delivery risk relating to each policy (Red Amber Green ratings, or “RAG”). However, the CBDP was instead prepared with “narrative” summaries of the risks relating to policies (at [29]-[32]).

The CBDP was sent to the SoS in March 2023. Crucially, it noted that “… this quantification relies on the package of proposals and Policies being delivered in full. Our advice is that it is reasonable to expect this level of ambition – having regard to delivery risk (see Annex B) and the wider context.”

The Judge disposed of grounds 1, 2, and 3 on primary and alternative bases. The primary basis, which was that the SoS had wrongly assumed all policies would be delivered in full, does not seem to break new legal ground. It was a question of fact whether the SoS had made such an assumption, and the SoS conceded the legal point that such an assumption would be irrational (at [126]).

The alternative basis, assuming that the SoS had made no such assumption, was more interesting. On that approach, the issue was whether the information provided to the SoS was a lawful basis for making a rational decision.

The Judge thought not: the legal standard applied was whether the SoS had enough information to “work out for himself whether the proposal or policy was likely to miss the target by a small or large amount and if so by how much” (at [134]). 

The Judge cites the example of the slurry policy at [47] of the judgment. That policy projects emissions reductions of 0.00096 Mt CO2e, but says the level of delivery risk is “uncertain” and requires further analysis.

Ground 4: Sustainable development

Ground 4 concerned a self-contained question of statutory interpretation. Namely: whether the SoS misconstrued section 13(3) CCA. That provision requires the SoS to certify that his policy plan “taken as a whole, must be such as to contribute to sustainable development”.

The SoS confirmed that, in his view, the “overall contribution” of the proposals were “likely” to do contribute to sustainable development. The Claimants argued this was an error, because the standard was certainty, denoted by “must”, not mere likelihood. The Judge agreed, given the phrasing “connotes a degree of certainty that a particular outcome will eventuate” (at [150]). He concluded that “[on] no reasonable view, could it be said that “likely” means “must””.

Ground 5: Section 14

Under ground 5, the Claimants argued that the SoS’ duty under section 14 CCA, to publish a report for public consultation setting out his proposals and policies, needed to include delivery risk analysis for each policy. 

The Court rejected this. The sector level delivery risk analyses were sufficient. In fact, they were more than was required to discharge the “legal object” of a s.14 document, which was set out by Holgate J. in FoE (No.1): namely, “to enable its readers to understand and assess the adequacy of the Government’s policy proposals and their effects” and “in the interests of public transparency” (at [162]).

Comment

This case was all about how much certainty can be demanded from a decision-maker tasked with putting together a highly speculative, long-term, and technical strategy for reshaping the country’s emissions and the socio-economic fundamentals that occasion them. The Court’s interpretation of ss.13-14 CCA is that at least some meaningful certainty was expected by the legislature, even in that demanding context. 

With regards to grounds 1, 2, and 3, it is undoubtedly difficult to see how a policy that foregoes any analysis of delivery risk, like the slurry policy, could ever constitute a cogent basis for deciding that a given quantity of reductions will be achieved. 

However, it is easy to imagine more detailed descriptions of delivery risks that could yet be challenged as an inadequate base for assessing policy impact. Estimating delivery risk is itself a highly contingent and technical speculative exercise, meaning such evidence will always depend on assumptions and a degree of informed guesswork. 

Although the case is not mentioned, the Court’s approach is essentially an application of the Tameside duty, which requires a decision-maker to assemble evidence sufficient to make their decision rational. That duty was considered in the Court of Appeal recently in another significant environmental case: R (on the application of Friends of the Earth Ltd) v SSIT/UKEF [2023] EWCA Civ 14. The Court of Appeal explained, at paragraph 57 of their judgment, that “[subject] to an irrationality challenge, it is for the decision-maker, and not for the court, to decide upon the manner and intensity of the inquiry to be undertaken”, and there “is a wider margin of appreciation in decision-making involving the application of scientific knowledge or expertise.”

Thus, whilst the SoS must do better than relying on policies which simply ignore delivery risk, they ought to be afforded a fairly wide margin of appreciation when it comes to determining how much evidence on delivery risk they need before they are capable of determining the level of emissions a given policy will reduce.  

With regards to ground 4, the Judge is not entirely clear as to whether the requirement that the plan “must” contribute to sustainable development is a jurisdictional fact for the Court to determine, or an evaluative matter for the SoS. It seems hard to believe Parliament was delegating such a policy-intensive and contentious question to the Court’s judgment, making it more likely to be a matter for the SoS. 

The Court’s approach to the SoS’ language seems fairly impractical, though the strange wording of the provision may bear the blame. Realistically, no minister can be certain that a plan will contribute to sustainable development. A qualifying s.13(1) net zero plan simply involves too much speculation and technical uncertainty in a polycentric context for that to ever be a sincere evaluation. And in any case, a plan that successfully reduces emissions towards net-zero in line with the CCA per section 13(1) is, essentially by definition, surely bound to contribute to sustainable development. 

And, finally, the Judge also expressly rejected an ambitious argument that, as a matter of principle, the Court should apply more intensive review to decisions concerning climate change, by virtue of its societal importance (at [141]-[142]).

Armin Solimani is a pupil barrister at Francis Taylor Building.