High Court to hear judicial review challenge this week over carbon emissions levels permitted under new emissions trading scheme for UK

The High Court will this week (14-15 April) hear a judicial review challenge over the volume of carbon emissions permitted and the exclusion of waste incinerators from the UK’s new emissions trading scheme.

Georgia Elliott-Smith, a waste industry expert and environmental consultant, is challenging the four governments of the UK over their joint decision to omit municipal waste incinerators from the scheme that has replaced the EU emissions trading scheme since January 2021.

Her law firm, Leigh Day, said: “The emissions from incinerators are equivalent to approximately 5.4% of the entire volume of greenhouse gas emissions covered by the UK Emissions Trading Scheme (UK ETS).
“She argues that the cap on the volume of emissions permitted under the emissions trading scheme is too high and was chosen for the improper purpose of ensuring that the UK’s exit from the EU would be smoother.”

Elliott-Smith also argues that in setting up the UK Emissions Trading Scheme (UK ETS), the governments did not consider the short and medium-term aspects of the UK’s obligations under the Paris Agreement which requires substantial and immediate emission reductions, not just net zero by 2050.
Her case is that the Climate Change Act 2008 grants the power to set up the UK ETS to limit greenhouse gas emissions, not to set an emissions cap to facilitate a smoother withdrawal from the EU.
The cap on the UK ETS in its first year will be 156 mtCO2e, substantially higher than the projected ‘business-as-usual’ emissions of 126-131 mtCO2e for 2021, Leigh Day said.
Georgia Elliott-Smith said: “In its current form, it could take nine years before the UK emissions trading scheme reduces carbon emissions by a single gram. In omitting major polluters and setting allowances well above business-as-usual levels, the government has failed to meet its Paris Agreement commitments. I look forward to challenging the Secretary of State for BEIS in court to demand he implement the sort of ambitious policies that the climate crisis demands.”
Leigh Day solicitor Rowan Smith added: “Our client’s legal case is extremely timely, given all eyes are on the UK government to set an ambitious example at the COP26 climate change conference scheduled for the end of this year. Her arguments are clear: a scheme set up without proper consideration of either the need to apply downward pressure on emissions, or the nearer-term aspirations of the Paris Agreement, is unlawful and should be redesigned.”

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Leigh Day has instructed David Wolfe QC at Matrix chambers and Ben Mitchell at 11KBW chambers.

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