Permission for judicial review refused in landmark climate change challenge

20/07/18, Public Law

In a judgment handed down today in R (Plan B Earth and Others) v. Secretary of State for Business Energy and Industrial Strategy (Defendant) and the Committee on Climate Change (Interested Party), permission to apply for judicial review was refused by Supperstone J after a renewed contested oral permission hearing lasting one day.

The decision sought to be challenged was the refusal to date by the Secretary of State for Business Energy and Industrial Strategy to revise the 2050 carbon target under the Climate Change Act 2008 (‘CCA’) following the conclusion of the Paris Agreement.

In essence, the Claimants’ case was that the decision was unlawful because the current 2050 target (to reduce emissions to 80% below pre-1990 levels) does not commit the UK to making an equitable contribution to the global temperature goals set out in the Paris Agreement, which are to keep warming to ‘well below 2oC’ above pre-industrial levels, and to pursue ‘efforts towards 1.5oC’. The Claimants argued inter alia that the decision frustrated the legislative purpose of the CCA and constituted a breach of the UK Government’s positive obligations to safeguard life, property and family life.

Permission was refused on the papers by Lang J but renewed for an oral permission hearing. The judge originally hearing the renewed application (Nicola Davies J) adjourned that hearing and ordered it to be set down for one day. She further ordered the Committee on Climate Change (‘CCC’) to attend and to provide a response to the Court to the Claimants’ submission that the advice the CCC had tendered to the Secretary of State under the CCA in 2016 misinterpreted the Paris Agreement and that the Secretary of State has misunderstood the advice in any event.

In refusing the Claimants’ application for permission as unarguable, Supperstone J held that it was clear that the CCC’s advice had been that emissions reductions of greater than 80% by 2050 were feasible and the Secretary of State had not misunderstood that. Further, Supperstone J found that the CCC’s view had been that the existing 2050 target is potentially consistent with a wide-range of temperature outcomes, including the aim of staying ‘well below 2oC’ above pre-industrial levels.

As regards the other Paris Agreement goal of pursuing ‘efforts towards 1.5oC’, Supperstone J found that that did imply greater ambition than represented by the current 2050 target. However, he found that when the CCC said in 2016 that a new target would be needed to reflect the Paris Agreement, that did not mean that an amendment to the 2050 target was required, but rather that a post-2050 ‘net zero’ target, which is a further part of the Paris Agreement, would need to be set in the future.

On this, the judge accepted the primary argument of the CCC (supported by the Secretary of State) that the Claimants were wrong to treat the achieving of a net zero emissions target (by the latter part of the century) as an ‘irrelevant distraction’ to its challenge. The 2050 target and the net zero emissions target were, as was clear from the 2016 CCC report, inter-related. The judge further accepted the submission made by the CCC that the net zero target was central to what the Paris Agreement was aiming to achieve and that Articles 2 and 4 of the Paris Agreement were, as the CCC had submitted, ‘integral to each other.’

Supperstone J then considered the Claimants’ five grounds of challenge in detail and held them all to be unarguable.

The judgment is here.

Emily MacKenzie appeared for the Claimants (the not-for-profit climate change organisation Plan B Earth and 11 individuals all affected by climate change), led by Jonathan Crow QC (instructed by Bindmans LLP)

Richard Gordon QC appeared for the Interested Party, the Committee on Climate Change

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