20 February 2024

Government acted unlawfully by approving climate plan, High Court told

20 February 2024

The Government was “not even aware” of the risks involved with implementing its strategy to meet the UK’s climate targets, the High Court has been told.

Three groups are taking joint legal action against the Department for Energy Security and Net Zero’s (DESNZ) decision to approve the Carbon Budget Delivery Plan (CBDP) in March 2023.

The plan outlines how the country will achieve targets set out in the sixth carbon budget, which runs until 2037, as part of wider efforts to reach net zero by 2050.

Environmental campaign group Friends of the Earth (FoE), which is bringing the case alongside ClientEarth and the Good Law Project, claims that the then-Secretary of State, Grant Shapps, acted unlawfully by approving the plan as he lacked information on whether individual policies could be delivered.

The DESNZ is contesting the claim in a hearing in London, which began on Tuesday.

David Wolfe KC, for FoE, said in written arguments: “The Secretary of State’s failure to consider information obviously material to the delivery risk of individual proposals and policies meant that the Secretary of State was unlawfully not even aware of the delivery risks associated with policies and proposals he relied upon when taking his decision.”

The CBDP was published after the same three groups won a separate court battle with the Government in 2022.

In that case, Mr Justice Holgate ruled the Government’s Net Zero Strategy was unlawful as ministers were not properly briefed on how individual policies would help meet climate targets set out in the sixth carbon budget, as required by the 2008 Climate Change Act (CCA).

The Government's decision was 'wholly arbitrary' and 'unsupported by evidence or reason'

The groups now claim that the decision to approve the CBDP was also unlawful as Mr Shapps had no or inaccurate information from different Government departments about the risks related to enacting climate policies, which gave a “misleading summary” of whether they could be put in place.

Mr Wolfe also claimed that some “risk tables” – used to demonstrate the risks associated with delivering each policy – were “recast” to remove information about whether plans could be implemented.

The tables were not shared with Parliament, climate bodies or the public, meaning the plan could not be properly scrutinised, the court was told.

Jessica Simor KC, representing environmental charity ClientEarth, said in her written arguments that the Government’s decision was “wholly arbitrary” and “unsupported by evidence or reason”.

Last June, the Climate Change Committee, an independent body that advises on action needed to tackle climate change, said that it had less confidence in the Government’s ability to meet its 2030 climate targets since the publication of the plan.

But the claimants have failed to explain why the assessment of risk on which they have chosen to focus must be treated as somehow definitive in this way

Jonathan Moffett KC, representing the DESNZ, said in his written arguments Mr Shapps had “sufficient information” about the risks of implementing climate policies, which “rationally supported” his decision to approve the plan.

He said: “Any assessment of risk is conducted in a context in which there is inherent uncertainty arising out of the long timescales involved. There is no single correct answer as to how those various matters should be evaluated.”

He added: “The practical difficulty with the claimants’ approach to this case is that they fail to account for these realities.

“The claimants fix on a specific assessment of risk, carried out by a specific category of officials, at a specific point in the process, and they say that the law required that the Secretary of State had to be provided with that specific assessment.

“But the claimants have failed to explain why the assessment of risk on which they have chosen to focus must be treated as somehow definitive in this way.”

A DESNZ spokesperson said: “The UK is the first major economy to halve its greenhouse gas emissions since 1990, while growing the economy by nearly 80%.

“The Government has over-delivered on every carbon budget to date and we’re on track to meet our future targets, which are among the most ambitious in the world.

“While we cannot comment further on matters that are subject to live litigation, our long-term plans to deliver net zero in a pragmatic way will continue to lower energy bills, create jobs across the UK and reduce emissions.”

The hearing before Mr Justice Sheldon is set to conclude on Thursday, with a judgment expected at a later date.

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