Limits of Aarhus cost capping

14/05/25

The environmental charity Global Feedback Ltd has brought a judicial review of regulations made by HM Treasury and the Secretary of State for Business and Trade implementing tariff preferences on Australian imports under a free trade agreement between the UK and Australia which entered into force on 31 May 2023. Global Feedback contends that the decision to make the regulations was unlawful because the Government declined to assess the nature and extent of carbon leakage between the UK and Australia for reasons which were illogical and/or irrational; that the decision was tainted by predetermination; and that it was flawed by a misreading of Article 4(1)(f) of the United Nations Framework Convention on Climate Change.

On 26 June 2024, Lang J granted Global Feedback permission to proceed with its claim: [2024] EWHC 1810 (Admin). On 28 June 2024, she held that Global Feedback’s claim was subject to Aarhus costs protection under Section IX of CPR Part 46, on the ground that the claim fell within the scope of article 9(3) of the Aarhus Convention. This applies to “acts and omissions by private persons and public authorities, which contravene provisions of … national law relating to the environment”: [2024] EWHC 1943 (Admin). With the permission of Arnold LJ, the Government appealed against this decision. The appeal was the first occasion in which the Court of Appeal has considered the scope of article 9(3) of the Aarhus Convention in more than a decade.

In a judgment handed down yesterday, the Court of Appeal (Coulson, Stuart-Smith & Holgate LJJ) allowed the Government’s appeal and determined that Global Feedback’s claim was not within the scope of article 9(3) of the Aarhus Convention. It held that what matters, when applying article 9(3), is whether the purpose of the national law that has allegedly been contravened is to protect or regulate the environment, and not whether the decision being challenged has an effect on, or some connection with, the environment. Bare principles of public law or a general statutory duty to have regard to relevant considerations were not national laws of this kind, and accordingly did not fall within the scope of article 9(3) of the Aarhus Convention.

The judgment of the Court of Appeal ([2025] EWCA Civ 624) can be read here.