21 December 2020 by

21 December 2020 by David Hart QC

R (o.t.a Mates of the Earth et al) v. Heathrow Airport Ltd [2020] UKSC 52 – read judgment

In February 2020, the Court docket of Enchantment determined that the Authorities coverage on airport enlargement at Heathrow was illegal on local weather change grounds. The Supreme Court docket has now reversed this resolution.

The coverage resolution underneath problem was an Airports Nationwide Coverage Assertion (ANPS). An NPS units the basic framework inside which additional planning choices will probably be taken. So, in conventional phrases, it’s not a planning permission; that will come later, through, on this case, the mechanism of a Improvement Consent Order (DCO), which examines the exact scheme that’s proposed. The ANPS (like several NPS) narrows the talk on the DCO stage. Objectors can’t say, for instance, that the rise in capability might higher be achieved at Gatwick. Authorities coverage has already determined it shouldn’t be.

The ANPS was made in 2018 by the Secretary of State for Transport (Chris Grayling), after a few years of commissions and debates about airport enlargement.

The opposite main coverage participant on this litigation was the Paris Settlement on Local weather Change. This was concluded in December 2015, and was ratified by the UK on 17 November 2016. The Paris Settlement commits events to limit temperature rise to effectively beneath 2°C above pre-industrial ranges and to pursue efforts to restrict the temperature improve to 1.5°C above pre-industrial ranges.

The UK’s home local weather change laws derives from the Local weather Change Act 2008. The Planning Act 2008 (setting out the NPS system) required authorities in a given NPS (a) to elucidate the way it takes account of its coverage on local weather change (s.5(8)) and (b) to train its NPS capabilities with regard to the desirability of mitigating and adapting to local weather change (s.10).

The challenges debated within the Supreme Court docket revolved round (1) these two sections of the PA 2008, (2) a debate concerning the affect of the strategic Environmental Evaluation Directive (2011/92/EU), and (3) claims that the SoS has didn’t take note of long-term (post-2050) and non-CO2 emissions.

One curious aspect of this attraction is that it was Hamlet with out the Prince. After in search of to defend the case within the CA, the SoS didn’t seem within the SC, the place Heathrow did all of the operating. Whether or not this non-appearance by the SoS was something to do with the Honourable Member for Hillingdon’s enterprise (Boris Johnson MP) some years in the past to lie in entrance of the bulldozers earlier than the third runway was laid is in fact unknowable. However as we will see, this didn’t cease Heathrow’s arguments successful the day. So, presumably, central authorities’s coverage goal achieved with out political danger.

Part 5 PA 2008

It was argued that it was illegal for the Secretary of State when setting out his coverage within the ANPS to deal with as irrelevant the Authorities’s dedication to the temperature goal within the Paris Settlement and the introduction of a brand new internet zero goal. The Authorities’s dedication constituted “Authorities coverage” inside the that means of s.5(8) PA 2008. The challengers pointed to statements by Ministers within the Home of Commons that the Authorities would enshrine the web zero targets in UK legislation sooner or later.

The CA had determined that these statements have been “coverage” inside s.5(8).

The Supreme Court docket disagreed. s.5(8) involved “rigorously formulated written statements of coverage” resembling these present in an NPS or the Nationwide Planning Coverage Framework. It reasoned thus at [105]

 For the subsection to function sensibly the phrase must be given a comparatively slender that means in order that the related insurance policies can readily be recognized. In any other case, civil servants must trawl via Hansard and press statements to see if something had been stated by a minister which could be characterised as “coverage”. Parliament can’t have meant to create a bear entice for ministers by requiring them to take note of any ministerial assertion which might as a matter of peculiar language be described as an announcement of coverage referring to the related area.

The Court docket drew on the legislation of reliable expectation setting an “absolute minimal” required for a coverage to qualify underneath s.5(8). It have to be clear, unambiguous and devoid of related qualification. The Court docket thought of that the ministerial statements didn’t fulfill these standards. The statements didn’t consult with the temperature targets in any respect, and left open the query as to how internet zero was to be enshrined in UK legislation. This was “inchoate or creating coverage being labored on inside Authorities” [106].

All agreed within the Supreme Court docket that the UK’s ratification of the Paris Settlement didn’t quantity by itself as “Authorities coverage”. This was an act on the worldwide aircraft and gave rise to no authorized rights or obligations in home legislation: [108]. Thus far so good, however the requirement underneath s.5(8) shouldn’t be not for legislation however for coverage. Coverage by definition shouldn’t be legislation, nor does it typically give rise to authorized rights and obligations with out it being applied – identical to worldwide legislation. This was some extent which was in impact made by the CA at [226] in saying that focus on the authorized impact was a “distraction” from the s.5(8) query. However the level was not taken additional within the SC.

The Court docket dismissed one aspect of Heathrow’s argument. The Local weather Change Act 2008 (CCA) contained a statutory mechanism by which targets might solely be modified with the assent of Parliament. Heathrow stated that this statutory mechanism had the impact that there was no remaining prerogative energy to undertake totally different insurance policies with out the assent of Parliament – a precept laid down in circumstances like Fireplace Brigades Union.

The Court docket disagreed. Coverage for this goal was not mandatory the identical as a coverage falling inside s.5(8). For instance, Authorities might report in an NPS that it meant to switch a specified carbon goal through draft subordinate laws depending on Parliamentary asset – and that will be coverage though not but formalised.

However, on the details, the Supreme Court docket stated, there was no settled coverage on how the Authorities would adapt its home insurance policies to contribute to the worldwide objectives of the Paris Settlement. By the point of the ANPS in June 2018, the Local weather Change Committee (CCC) had not but acknowledged what the brand new carbon goal ought to be, and was advising Authorities to await the forthcoming IPCC Particular Report on World Warming (which was within the occasion printed in October 2018). It was not till Might 2019 that the CCC beneficial {that a} new statutory goal ought to be set at internet zero.

Part 10 PA

Part 10 PA requires the SoS to behave with the target of contributing to sustainable improvement. “Sustainable improvement” is (my phrases) a weasel phrase, which on this case entails the balancing of financial developments in opposition to elevated greenhouse gases. Sounds cuddly however means nothing should you actually wish to do some main infrastructure challenge since you, if that’s the case inclined, can at all times say that the cash busts local weather change or different environmental points. However this query is determined by how this explicit obligation is to be interpreted in its statutory context, and the precept is able to extra edge in different contexts.

S.10(3)(a) PA requires the SoS to have regard to the desirability of “mitigating, and adapting to, local weather change.”

[116]-[121] of the judgment are a cost-effective abstract of the legislation on related/irrelevant issues in a statutory context resembling s.10 PA. The start line is the seminal case of Fewings. There are three classes; (1) issues expressly or impliedly recognized within the statute; (2) issues excluded by the statute; and (3) issues to which the decision-maker might have regard in his discretion. Class Three is at all times the debatable one.

The Court docket divided Class Three circumstances into these (a) the place the decision-maker didn’t consult with a specific consideration in any respect [120] and (b) the place the decision-maker determined to provide a consideration recognized by them no (or no substantial) weight of their final evaluation.

The Court docket stated this case was a Class 3(b) case. Disagreeing with the CA, it stated that the SoS took under consideration his duties underneath the CCA (and therefore, it was stated, the Paris Settlement). He, it was stated, gave weight to that Settlement and, to the extent that its obligations have been coated by measures taken underneath the CCA, ensured that these obligations can be introduced under consideration when choices have been taken pursuant to the framework set by the ANPS – i.e. within the DCO course of.

Therefore, the Court docket recognized the remaining query to be whether or not the SoS acted irrationally in omitting to take the Paris Settlement additional under consideration.

Astute readers could have guessed that, as soon as the query was formulated on this slender manner, there was just one doubtless reply. No irrationality.

The upshot:

On the proof, the Secretary of State definitely did ask himself the query whether or not he ought to take note of the Paris Settlement past the extent to which it was already mirrored within the obligations underneath the CCA 2008 and concluded within the train of his discretion that it could not be applicable to take action. 

So finish of problem on this floor.

The SEA level

The SEA Directive (transposed successfully into home laws) is designed to make sure that environmental impacts from main developments are taken under consideration. It operates “upstream”, when main plans or proposals are being ready. “Downstream” comes the Environmental Affect Evaluation course of, when the particular resolution is to be made.

Let’s return to Paris – if we are able to, today. The criticism was that the SEA report ready made no reference to the Paris Settlement. The response was that the Appraisal of Sustainability (abbreviated to AoS on this a part of the judgment – public legal professionals beware) which underpinned the ANPS and the draft ANPS itself referred to the carbon targets within the CCA, and therefore the Paris Settlement was ‘to that extent” coated within the SEA report. The SoS was following the recommendation of the CCC that it was not “mandatory or applicable” to make additional reference to the Paris Settlement, though it was an implicit reference within the the draft ANPS. The Court docket thus rejected the conclusion of the CA that it was authorized recommendation which led to the deletion of the reference to the Paris Settlement.

No matter you consider the end result, it’s deeply odd {that a} main coverage doc on airports may be finalised in 2018 with out express reference to the Paris Settlement concluded some Three years earlier than. It’s as if it’s the unmentionable.

[141]ff contemplate the impact of the SEA. An SEA report has to supply environmental info when it comes to worldwide, EU or home targets – however the SoS has a discretion as to the data to be included within the report. This discretion was solely reviewable on Wednesbury grounds: [144]. This declare was not made out: [149}

…. the Secretary of State did not treat the Paris Agreement as legally irrelevant and on that basis refuse to consider whether reference should be made to it. On the contrary, ….. in compiling the AoS as the environmental statement required under the SEA Directive the Secretary of State decided to follow the advice of the CCC to the effect that the UK’s obligations under the Paris Agreement were sufficiently taken into account in the UK’s domestic obligations under the CCA 2008, which were referred to in the ANPS and the AoS.

Post-2050 and non-CO2 emissions

These grounds were found good by the CA but were reversed by the SC. The SC accepted that the SoS had not acted irrationally in not taking into account post-2050 emissions, given the difficulty of assessing these. Similarly, aircraft emit nitrogen oxides, water vapour, and sulphate and soot aerosols all of which combine to have a global warming effect over and above the effect of carbon.

The uncertainty lies in the quantification of this effect. Heathrow pointed to the fact that the AoS specifically invited Heathrow when applying for a DCO to do further work on assessing these impacts – so not a matter for the ANPS.

The CA, unsurprisingly, invoked the precautionary principle (and common sense) in ruling that you would not refuse to take something into account because you could not currently quantify it.

The SC dismissed this argument at [165], in a considerably cursory trend, saying that the CA was equating the precautionary precept with frequent sense. Environmental legal professionals will know that the precautionary precept has moderately extra spine than this offers credit score for.

Conclusion

The CA resolution was reached in February 2020. How totally different a flight world was that? The apparent query about because of this is Heathrow bothering to attraction. The pandemic has destroyed the present marketplace for air journey. However Heathrow’s view [18] is that, given the lengthy lead time for any third runway, the excess of demand over present capability will come up earlier than a 3rd runway can be operational, and that it’s going to course of with the scheme. A really substantial firm eager to protect its company worth, would say that, wouldn’t they.

However that difficulty shouldn’t distract from the essential authorized and coverage questions which come up on the central level within the case. Basically, the distinction between the CA and the SC turned on their evaluation of the moderately opaque paperwork which underlay the ANPS. The CA smelt a rat: it was all pushed by a mistaken view of the SoS’s authorized obligations in respect to Paris: mustn’t point out it. The SC learn issues otherwise: though Paris was not talked about within the ANPS, it lurked there. So it was taken under consideration, actually. On these totally different perceptions hinged this crucial infrastructure problem.