Introduction

Local authorities across the UK have made climate emergency declarations in large numbers. These are generally declarations which say that humanity is facing a climate emergency and that urgent action to address climate change and its effects is needed. [1]  A recent review carried out by the Environmental Law Foundation (ELF) concluded that, out of the 376 local authorities which they reviewed, 79% had made such a declaration. [2]  The first local authority to make a declaration was Bristol City Council in November 2018. [3]  ELF took the view that, in many instances, ‘the action does not match the rhetoric’ and that ‘there needs to be a step change in the way in which these declarations are treated within…decision-making processes’ by local authorities if they are to be anything other than ‘worthless political statements’. [4]  ELF observed, for instance, that, in respect of local authorities in the East of England, there was little indication that the declarations were influencing decision-making in any way, such as pointing to the declarations in planning decisions. [5]  That raises the question whether a declaration of a climate emergency by a local authority might potentially give rise to any legal consequences.

In London Borough of Islington v Wells [2021] EWHC 528 (Ch), which concerned an application by the Council for the possession of land currently occupied by protestors concerned with the felling of trees to make way for new dwellings, the protestors, in evidence, referred to the declarations of a climate and ecological emergency by Parliament, and by the Council itself in 2019, in support of their occupation of the site. The High Court was unenthusiastic, however, about submissions which sought to criticise the underlying decision to grant planning permission on the basis that it was ‘inconsistent with the Council's own declared climate emergency’. [6] The Court said that this came ‘perilously close to inviting’ the Court ‘to undertake a review of the Council’s decision to grant planning permission and pursue the development’ which was not the Court’s function, particularly when that decision had not been subject to a judicial review. [7] The Court said it must approach the balancing exercise between the Council’s right to possession and the protesters’ Article 10 and Article 11 rights on the ‘basis that the proposed development’ was ‘in accordance with a lawful planning approval’.[8]  The Court therefore left open the argument that a declaration of a climate emergency by a local authority could potentially be relevant in the determination of a judicial review of a decision to grant planning permission. 

Generally, a declaration of a climate emergency by a local authority will not have legal teeth. The legal effect of a declaration will, to a large extent, depend on how the declaration is drafted. Depending on that drafting, and the particular circumstances of the case, it is possible that some declarations might potentially give rise to public law consequences. 

A material consideration?

ELF suggested that declarations should be regarded as material considerations in the determination of planning matters.[9]  North Somerset Council apparently now requires that all its decisions must refer to how they will affect its declared climate emergency.[10]  It seems possible that a declaration could be drafted in such a way that it could be relied upon to argue that it makes climate change a material consideration which must be taken into account in making particular decisions, such that a failure to take it into account would give rise to an error of law.

In the judicial review of the grant of a Development Consent Order approving a major junction improvement scheme on the A38, which was conceded by the Secretary of State, one of the grounds (which was not conceded in the consent order) was that the Secretary of State had failed to consider the declaration of a climate emergency by Parliament when considering greenhouse gas emissions in deciding whether the adverse impacts of the scheme would outweigh its benefits. The claimant contended that, in light of that declaration, the Secretary of State needed to consider whether great weight should be given to the emissions of the development in the balancing exercise and that this was a consideration which was so obviously material that it was irrational not to consider it. In the Examining Authority’s Report, it was said that some policies, including the National Policy Statement for National Networks and local policies, had not been updated since, inter alia, the declaration of a climate emergency by Derby City Council, but that it had not been shown that the National Policy Statement was outweighed by local policies, whether they were up to date or not.[11]

A legitimate expectation?

It is possible that a declaration might be drafted in such a way as to allow it to be argued that it gave rise to an enforceable legitimate expectation. The declaration would have to contain clear, unambiguous and unqualified representations about how the local authority was going to act in the future in particular circumstances. Where a clear and unambiguous undertaking or promise has been made in a declaration, the local authority who made it could be held to it and not be allowed to depart from it unless it is shown that it is fair to do so. [12] The nature of declarations means, however, that this is unlikely to be true of the vast majority of declarations made by local authorities. ELF said that a declaration is often ‘the first step towards meaningful action on climate change and a reduction in carbon emissions’ and is ‘a focus point’ which, in order to be effective, ‘needs to be followed up with action plans and strategies’.[13]

If a legitimate expectation were to arise, it would most likely be a procedural rather than a substantive legitimate expectation. A procedural legitimate expectation would be an expectation that the local authority will follow a particular procedure before making a decision, such as a consultation process, whereas a substantive legitimate expectation would be an expectation that the local authority would reach a particular decision. A declaration might potentially give rise to a procedural legitimate expectation that, for example, climate change would be taken into account. It is also perhaps conceivable, depending on how it was drafted, that it could be argued that the declaration gives rise to a legitimate expectation that climate change would be prioritised as an objective over other considerations.

The duty to give reasons

It is also possible that a declaration could be relied upon to argue that there was, in the circumstances of a particular decision, a legal duty to give reasons to explain how the decision was consistent with the declaration.  This could potentially be argued, for example, if the decision appears to fly in the face of the declaration. 

Bioabundance CIC v South Oxfordshire DC [2021] EWHC 1188 (Admin) was a challenge to the South Oxfordshire Local Plan 2035. The claimant alleged that the inspector had given inadequate reasons regarding climate change and the net zero emissions target.[14]  In the report, the inspector expressly noted that the Council had declared a climate emergency but did not set out any reasoning as to whether the legally binding net zero emissions target was a reason to reduce the housing target.[15]  Mrs Justice Lang said that this was a principal important issue because, as noted by the inspector, the Council, following its declaration of a climate emergency, was ‘committed to sustainable and low or zero carbon development and wants to ensure that the Plan is effective in reducing carbon emissions and mitigating the effects of climate change’. [16] Lang J concluded, however, that ‘the issue of climate change pervades the report’ by the inspector and that the references to, inter alia, the declaration of a climate emergency ‘signalled that he had taken the relevant policy and legal considerations into account’ and that the inspector was not required to go any further. [17]

Irrationality

It may also be irrational for an authority to resolve to take action in a declaration of climate emergency and then fail to do anything further.  The drafting of the declaration will be key as the more specific the declaration is about what action would be taken, the more likely it is that an irrationality challenge might succeed.  It might, for example, be argued to be irrational to adopt a plan or policy which does nothing to address climate change where the local authority has declared a climate emergency. Some declarations may include specific commitments or promised actions on which, absent a change of policy or circumstances, it might be irrational not to act.  

Conclusions

Local authorities have rushed to make declarations declaring a climate emergency but the status of such declarations in decision-making has yet to be tested by any legal challenge. [18]  This article has sought to examine what might potentially be the legal consequences of a local authority making such a declaration. The public law consequences of those declarations will depend, to a great degree, on how the declaration is drafted. The general position will be that declarations of climate emergency will not have legal teeth. Declarations are inherently vague and aspirational calls for action which are unlikely to give rise to public law consequences. 

It is possible, however, that a declaration could be drafted in such a way that it could be relied upon to try to establish that, in certain decisions, climate change was a mandatory material consideration. At an extreme, it may be possible for a declaration to give rise to an enforceable legitimate expectation. A procedural, rather than a substantive, legitimate expectation is more likely. A declaration could also be relied upon to argue that, in certain circumstances, there was a legal duty to give reasons. A declaration may also form the basis of an irrationality challenge. The decision in Bioabundance CIC v South Oxfordshire DC, and the judicial review of the A38 Development Consent Order, are two examples of how declarations of climate emergency may be deployed in public law litigation. 

[1]  Environmental Law Foundation, Local urgency on the Climate Emergency? A review of local authority Climate Emergency Declarations and supporting action across the UK, October 2021 (“ELF Review 2021”), p. 2. 
[2]  ELF Review 2021, p. 2. 
[3]  ELF Review 2021, p. 5. 
[4]  ELF Review 2021, p. 2. 
[5]  ELF Review 2021, p. 11. 
[6]  London Borough of Islington v Wells [2021] EWHC 528 (Ch), [46]. 
[7] London Borough of Islington v Wells [2021] EWHC 528 (Ch), [47].
[8]  London Borough of Islington v Wells [2021] EWHC 528 (Ch), [47]. 
[9]  ELF Review 2021, p. 16. 
[10]  ELF Review 2021, p. 10. 
[11]  Examining Authority’s Report of Findings and Conclusions, A38 Derby Junctions, 8 October 2020, p. 251 [4.15.112]. 
[12]  In the matter of an application by Geraldine Finucane for Judicial Review (Northern Ireland) [2019] UKSC 7, [62]. 
[13]  ELF Review 2021, p. 5. 
[14]  Bioabundance CIC v South Oxfordshire DC [2021] EWHC 1188 (Admin), [33]. 
[15]  Bioabundance CIC, [33].
[16]  Bioabundance CIC, [33].
[17]  Bioabundance CIC, [37].
[18]  ELF Review 2021, p. 16.