This post is by Katie de Kauwe, lawyer at Friends of the Earth.
The government’s policy giving the green light to Heathrow expansion and establishing the need for more airport capacity in the south east was ruled unlawful by the Court of Appeal on climate grounds last month. This ruling follows years of work by the legal team at Friends of the Earth (myself included), along with our external solicitors at Leigh Day, and barristers (David Wolfe QC at Matrix Chambers, Peter Lockley at 11KBW and Andrew Parkinson at Landmark Chambers). And, of course, the absolutely tireless work, campaigning and commitment from local residents who are the unsung heroes of the piece.
Heathrow expansion was set to be one of the country’s largest infrastructure projects. However, the court accepted our submissions that the Airport National Policy Statement (ANPS) was unlawful because:
- The secretary of state for transport (at the time, Chris Grayling), failed to consider important climate factors in their decision to allow the building of a third runway at Heathrow Airport, already one of the biggest single sources of carbon emissions in the UK. This was a breach of the sustainable development duty under section 10 of the Planning Act 2008.
- Specifically, that he should have taken into account the Paris Agreement, the non-CO2 climate warming impacts of Heathrow expansion and the climate impacts of the project beyond 2050.
- The secretary of state also breached their duty to undertake a lawful, strategic environmental assessment (in accordance with legal requirements).
In addition, the court accepted Plan B Earth’s submissions that the Paris Agreement was itself a part of government policy and should, therefore, have been considered under section 5(8) of the Planning Act 2008.
We weren’t the only ones to appeal. Other claimants challenged the decision to allow a third runway based on other factors, such as the EU Habitats Directive, and on arguments relating to expansion at Gatwick instead. However, it was only the climate claimants, Friends of the Earth and Plan B, who won.
Climate impacts will now have to be taken into account
The decision means the government can no longer claim it is committed to the Paris Agreement and tackling the climate emergency, while it is failing to take them into account when planning high carbon infrastructure projects, such as major roads, coal mines and gas power stations.
Friends of the Earth’s case established that non-CO2 impacts, such as nitrogen oxides, need to be considered in the context of aviation and that analysis cannot be limited to CO2 alone. Given that the combined warming impact of non-CO2 sources and CO2 could be double that of CO2 alone, Heathrow expansion is clearly not feasible without substantial efficiency improvements in planes.
An important restatement of the sustainable development principle
In winning this case, we have strengthened sustainable development as applied in the Planning Act 2008 and generally, including the need to safeguard impacts on future generations as well as the requirement to assess the environmental, economic and social factors in a balanced way. In particular, the High Court endorsed the Brundtland definition of sustainable development:
“The objective of sustainable development can be summarised as meeting the needs of the present without compromising the ability of future generations to meet their own needs”.
This is an important re-statement of this principle in a modern-day planning context.
What the ruling means for other projects
Following this judgement, the Paris Agreement will need to be considered whenever a National Policy Statement (NPS) is created or reviewed, and it should be relevant to decisions on other carbon intensive infrastructure, such as energy projects.
Off the back of this result, the Good Law Project has written to the government to call for a review of the Energy NPS, which supports the development of new fossil fuel projects. Also, the Transport Action Network has written to request a review of the National Networks NPS, which sets the framework for major road developments.
Interestingly, in the Heathrow decision, the Court of Appeal did not constrain its findings to decisions under the Planning Act or relating to NPSs. The court has strengthened the application of the precautionary principle in law. In addition, its finding that the Paris Agreement, post-2050 climate impacts and non-CO2 impacts were all “obviously relevant” factors means that they could be applied to other decisions, beyond the Planning Act and even beyond aviation, which have high risks for the environment and long lasting climate implications.
For example, in January 2020, Bristol councillors refused an application for airport expansion. If the developer appeals, then the relevance of the Paris Agreement and non-CO2 climate impacts may need to be factored into the decision.
The Heathrow result could also be helpful in the challenge currently being brought by ClientEarth to the proposed Drax gas power plant in Selby, North Yorkshire, which would be the largest gas power plant in Europe. And it could be relevant to a proposed coal development at Druridge Bay, which Friends of the Earth and other groups are resisting. The secretary of state previously refused permission for this development on climate change grounds, but it was successfully challenged by the developer. The High Court ruled that the secretary of state had not set out adequate reasons, and they, therefore, need to re-take the decision. The Heathrow ruling could have implications for both of these cases.
The role of the court
The ANPS has been found unlawful because of an error in law, not because judges have waded into a political debate. The government skipped steps when it came to drawing up the policy. The fact that this was found unlawful demonstrates how important our independent judiciary and court system are in providing an effective forum to challenge the abuse of state power. In making this ruling, the court has enforced the law as set by parliament.
Climate litigation is a global phenomenon. In the simplest of terms, it’s a response to government inaction on the climate emergency. Our case against Heathrow was about climate justice and challenging a climate-wrecking infrastructure project. This result has real and tangible benefits for the local activists who have been fighting Heathrow expansion for decades, and it is also of great interest to the wider global climate justice community who are resisting similar projects and developments. This country’s case law is cited in the courts of many other countries, so the ruling has the potential to influence decisions abroad as well.
We are facing uncertain and challenging times with the COVID-19 pandemic. It remains clear though that, with the UK set to host vital UN climate talks, and with the recent suffering of communities across the UK from extreme flooding, we need transformative action to deal with the climate crisis. Our international climate commitments must take centre stage in all the government’s decisions, including the Budget and the next Comprehensive Spending review.
And we think that, following this judgement, the government should signal an end to all airport expansion and produce an airport policy which takes into account, and is consistent with, our international climate commitments under the Paris Agreement and sustainable development.