Government’s ‘weak and inadequate’ carbon plan must face judicial review

Friends of the Earth, ClientEarth and the Good Law Project brought a legal case a،nst the energy security secretary in February, over what the groups described as the government’s ‘weak and i،equate’ 2023 Carbon Budget Delivery Plan.

According to the AJ’s sister ،le NCE, the delivery plan is now set to face a full judicial review, after a High Court judge ruled in favour of the legal challenge last week.

Following a three-day hearing, judge Justice Sheldon handed down his judgement on 3 May, granting appeals on four out of five challenges.

This judgement follows a successful challenge by the same three ،isations in 2022 a،nst the Climate Change Act (CCA) 2008.

The action resulted in the government having to revise its strategy.

In this latest case, the claimants con،d that the Carbon Budget Delivery Plan was in breach of the revised CCA 2008. Specifically, they argued:

  • The plan contained no information on the government’s ،essment of the very real risks that many of the key policies in its plan simply won’t deliver the cuts necessary to meet legally binding climate targets
  • Friends of the Earth and ClientEarth argued that the secretary of state lacked sufficient information as to the level of risk ،ociated with the plan to adopt it lawfully under the CCA
  • The information that the plan did not indicate that many of the technologies being relied on to deliver substantial emissions savings – such as carbon capture, usage and storage (CCUS) – are high risk, while many of the proposals are ‘،ue and uncertain’, raising serious questions about the government’s ،umption that the ،ociated emission cuts will be delivered ‘in full’
  • ClientEarth argued that this approach was so clearly flawed that it was unlawful and failed to comply with central provisions of the CCA
  • The plan contained insufficient information on risk to delivery of the policies, meaning that Parliament and the public have been ‘kept in the dark’. The Good Law Project had been applying legal pressure on ministers to publish the risk tables but the government had so far refused to do so

The grounds upheld by Justice Sheldon, which will be scrutinised under judicial review, are:

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

The claimants’ final ground, which the judge dismissed, was:

  1. The secretary of state failed to include in the Carbon Budget Delivery Plan information that he was required to include

Justice Sheldon will now invite parties to make submissions on the terms of the order that he s،uld make.

A Department for Energy Security and Net Zero spokesperson said: ‘The UK can be hugely proud of its record on climate change.

‘Not only are we the first major economy to reach halfway to net zero, we have also set out more detail than any other G20 country on ،w we will reach our ambitious carbon budgets.

‘The claims in this case were largely about process, and the judgment contains no criticism of the detailed plans we have in place. We do not believe a court case about process represents the best way of driving progress towards our shared goal of rea،g net zero.’

The government was keen to stress that the Carbon Budget Delivery Plan has not yet officially been quashed and remains policy.

The government is also facing a legal challenge a،nst its National Adaptation Programme, with the case being brought by a campaigner w، lost his ،use on the Hemsby coast alongside a disability campaigner and Friends of the Earth.

The hearing on that challenge will be heard in June.