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Government Net Zero Strategy in breach of Climate Change Act, High Court finds

The Government's Net Zero policies were unlawful because the minister involved in the decision was not given the necessary information needed in order to make the decision lawfully, the High Court has ruled.

In Friends of the Earth Ltd & Ors, R (On the Application Of) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841, Mr Justice Holgate found that the Secretary of State’s Net Zero Strategy was in breach of section 13 and 14 of the Climate Change Act 2008

Under the 2008 Act, the Secretary of State has a duty to make sure the country's carbon emissions in 2050 are at least 100% lower than emissions in 1990. Since 2008, the Government has set carbon budgets – divided into five-year segments – in order to reach the 2050 goal.

On 19 October 2021, the Secretary of State laid the Government's carbon budget for 2033 to 2037 (named Carbon Budget 6 or CB6) before Parliament as part of its Net Zero Strategy (NZS) report.

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The final decision to approve the NZS before presenting it to Parliament was taken by a Minister on behalf of the Secretary of State. However, the court heard that in the process of developing the policy, officials told the minister that the "quantifiable proposals and policies" would achieve only 95% of the emissions reductions required to meet the carbon budget goal.

The three claimants – Friends of the Earth, ClientEarth and Good Law Project – called into question two decisions by the Secretary of State. Firstly, the decision to approve the proposals and policies prepared under section 13 of the Climate Change Act 2008 (as set out in the NZS). And secondly, the decision to publish the NZS as a report under section 14 of the 2008 Act.

The claimant also lodged a ground arguing a breach of the Human Rights Act 1998.

Under section 13 Climate Change Act 2008, the Secretary of State for BEIS has a duty to "prepare such proposals and policies" as he considers will enable the carbon budgets which have been set under the 2008 Act to be met.

While section 14 provides that "as soon as is reasonably practicable" after setting a carbon budget, the Secretary of State must lay before Parliament a report setting out proposals and policies for meeting the current and future "budgetary periods" up to and including that budget.

Under the section 13 argument, the claimants contended that through insufficiencies in the briefing material with which he was supplied, the Secretary of State failed to take into account relevant considerations which were "obviously material", and therefore matters he had to consider under section 13 of the 2008 Act.

The judge found that one "obviously material" consideration that the Secretary of State must take into account is risk to the delivery of individual proposals and policies and to the achievement of the carbon budgets and the 2050 net zero target.

"Ultimately, the Minister's decision depended upon unquantified measures and other quantified measures to be developed further […] and upon comparison with a delivery pathway which was said to meet the CB6 target, but only just, and was in any event subject to a wide uncertainty range," the judge found.

He later added: "In my judgment, without information on the contributions by individual policies to the 95% assessment, the Minister could not rationally decide for himself how much weight to give to those matters and to the quantitative assessment in order to discharge his obligation under s.13(1)."

Under the section 13 ground, the claimant's also argued that the Secretary of State was not entitled to reach the conclusion that the proposals and policies in the NZS would enable the carbon budgets to be met where the quantified effects of those measures were estimated to deliver less than 100% of the emissions reductions required to meet the target.

The judge dismissed this argument, noting that: "[There] is no basis in the statutory scheme to justify the court holding that the obligation in s.13(1) requires the Secretary of State to be satisfied by quantitative analysis that measures with quantifiable effects will enable at least 100% of the emissions reductions required by the carbon budgets to be achieved."

Turning to the section 14 ground, the judge found that section 14 requires an explanation to be provided to Parliament as to how the Secretary of State's policies are intended to meet the statutory targets. He did not accept that the obligations could properly be discharged without any quantitative explanation being provided to Parliament, as the Government argued.

The ground relating to the Human Rights Act 1998 was dismissed.

A BEIS spokesperson said: “The Net Zero Strategy remains government policy and has not been quashed. The judge made no criticism about the substance of our plans which are well on track and, in fact, the claimants themselves described them as ‘laudable’ during the proceedings.”

Adam Carey

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