Plan B Earth’s skeleton argument against the DfT on how the Airports NPS (Grayling …) failed on climate
Plan B Earth is making one of the 5 legal challenges against the government, due to their decision to support the building of a 3rd runway at Heathrow, through the “Airports National Planning Statement” (ANPS). They have filed their skeleton argument, which is the basis of their submissions at the trial. Plan B says: “In essence, it’s a simple argument. Chris Grayling considered the Paris Agreement “irrelevant” to his decision. He was wrong.” Part of the skeleton argument states: “(1). At the heart of all three grounds of Plan B’s claim, lies a common concern: the Secretary of State’s failure to assess the ANPS against the Paris Agreement on Climate Change (“the Paris Agreement”) and specifically the Paris Agreement temperature limit (“Paris Temperature Limit”), which, according to the best available science, demarcates the boundary between humanity and an intolerable risk of disaster: disaster for the environment; for the economy; and for international security. (2.) Initially the Secretary of State purported to have taken the Paris Agreement into account. His own witnesses, however, undermined that claim. Once Plan B drew that to his attention, the Secretary of State modified his position: when he said that he had considered the Paris Agreement, he meant only that he had considered it to be irrelevant.” Read the full skeleton.
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Claim No. CO/3149/2018
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
In the matter of a claim for judicial review
BETWEEN
THE QUEEN
on the application of
PLAN B. EARTH
Claimant
– and –
THE SECRETARY OF STATE FOR
TRANSPORT
Defendant
-and-
(1) HEATHROW AIRPORT LIMITED
(2) ARORA HOLDINGS LIMITED
Interested Parties
The Skeleton Argument by “Plan B Earth” against the Department for Transport, for the hearings starting in London on 11th March.
Skeleton Argument
A. INTRODUCTION
1. At the heart of all three grounds of Plan B’s claim, lies a common concern: the
Secretary of State’s failure to assess the ANPS against the Paris Agreement on Climate
Change (“the Paris Agreement”) and specifically the Paris Agreement temperature
limit (“Paris Temperature Limit”), which, according to the best available science,
demarcates the boundary between humanity and an intolerable risk of disaster:
disaster for the environment; for the economy; and for international security.
2. Initially the Secretary of State purported to have taken the Paris Agreement into
account. His own witnesses, however, undermined that claim. Once Plan B drew that
to his attention, the Secretary of State modified his position: when he said that he had
considered the Paris Agreement, he meant only that he had considered it to be
irrelevant.
3. In truth, as from December 2015 the Paris Agreement, which the Government has
advanced, signed and ratified, has been the foundation of national and international
policy on climate change. The Secretary of State’s contention that the Paris Agreement
was irrelevant to his consideration is fanciful and legally flawed from every angle of
approach. Specifically, the Secretary of State has:
(a) breached the 2008 Act, ss. 5(8) and 10(3), such that his designation was ultra vires
(Ground 1)
(b) acted irrationally by treating the Paris Temperature Limit as irrelevant to his
consideration and the discredited 2˚C temperature limit as relevant to his
consideration (Ground 2).
(c) breached the Human Rights Act 1998, s. 3 (“HRA s.3”), by failing to interpret the
2008 Act, s.5(8) in accordance with the right to family life and the right to life
(Ground 3).
4. All three grounds of claim are closely interlinked, but since Ground 1 and Ground 3
both relate to the interpretation of s. 5(8) of the 2008 Act, for the remainder of this
skeleton argument, and at the hearing, Plan B proposes to address Ground 3
immediately following Ground 1 and prior to Ground 2.
5. In substance, Plan B’s and Friends of the Earth’s grounds of claim are complementary.
In terms of the legal framing, however, there is an important distinction between Plan B’s Ground 1 and Friends of the Earth’s Grounds 1 and 2. Plan B adopts Friends of the
Earth’s submissions on s. 10(3) of the 2008 Act in so far as the argument is that the
Secretary of State was required by that section to take the Paris Agreement into
account and does not propose to advance separate submissions on that point.
However, in contrast to Friends of the Earth, it is Plan B’s submission that the
Secretary of State was required to consider the Paris Agreement also pursuant to s. 5(8)
of the Act, since the Paris Agreement is in reality the foundation of “government
policy” on climate change.
6. It may be convenient (in the interests of clarity) to mention briefly one argument on
which Plan B does not rely. Plan B does not suggest that the Paris Agreement is, of
itself, legally enforceable in domestic law; nor does it ask this Court to engage in an
exercise of interpreting international law. To the contrary, Plan B’s claim is grounded
in straightforward and non-technical considerations of public law: (i) the
interpretation of the 2008 Act s. 5 (and specifically whether “government policy” on
climate change should be interpreted to include the government’s commitment to the
Paris Temperature Limit); and (ii) the rationality or otherwise of the Secretary of
State’s conclusions that the Paris Temperature Limit was irrelevant to his
consideration and that the discredited 2˚C limit was a relevant consideration.
Read the full Skeleton Argument here:
https://planb.earth/wp-content/uploads/2019/02/Skeleton-Plan-B-Trial-FINAL.pdf
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Plan B’s website:
We’re taking the UK Government to court over its reckless plans to expand Heathrow Airport. Join us!
Case information
Following the Government’s commitment to reviewing its climate targets the courts have refused us a full hearing on this case. There will be a full trial of Heathrow expansion, starting 11 March 2019, also involving the London Mayor, Friends of the Earth and others.
Contribute to funding the case
People all over the world are now heading to court to hold governments and corporates to account for Climate Change. As part of this global movement Plan B is challenging the UK Government’s plans to increase aviation, the most polluting form of transport.
Get involved
Plan B is supporting the emergence of a networked, international movement of legal action to prevent catastrophic climate change. If you would like to work in co-operation with Plan B or to volunteer your skills or time in some other way please get in touch.
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See earlier:
Government tries to deny its climate responsibility to aim for 1.5C temperature rise, in pushing for 3rd Heathrow runway
The pre-trial hearing for the series of legal challenges against the Government’s decision to expand Heathrow takes place at the Royal Courts of Justice in London on Tuesday 15th January. In legal correspondence between the defendant (Government) and one of the claimants, Plan B Earth, the Government argues that “[Plan B] is wrong to assert that “Government policy is to limit warming to the more stringent standard of 1.5˚C and “well below” 2˚C’. This means that the Government is effectively denying that its own policy is to limit warming to the level that has been agreed internationally is required to avoid climate breakdown. The legal challenge brought by Plan B Earth and Friends of the Earth assert that the Government decision to proceed with Heathrow expansion was unlawful as it failed to appropriately consider climate change. Shadow Chancellor John McDonnell described the case as “the iconic battleground against climate change”. The Committee on Climate Change had previously expressed surprise that neither the commitments in the Climate Change Act 2008 nor the Paris Agreement (2015) were referenced in the Government’s Airports National Policy Statement (aka. the plans for a 3rd Heathrow runway).This is a huge inconsistency.
Click here to view full story…
Pre-trial hearing on 15th January of the 5 legal challenges against ‘unlawful’ Government decision to approve 3rd runway
Campaigners are taking the government to court in a bid to overturn the “unlawful” decision to approve a 3rd Heathrow runway. The pre-trial hearing for Friends of the Earth’s case will take place on Tuesday at the High Court, when the activists will lay out their opposition based on several grounds. There are 5 separate legal challenges being brought by a range of organisations, on grounds of climate, air quality and harm to the wellbeing of local residents. It would be virtually impossible for Britain to meet its obligations to cut emissions under the Paris climate agreement if a new Heathrow runway is built [or for that matter, one at Gatwick either]. The Government’s advisory body on climate change, the Committee on Climate Change, has warned the expansion also threatens the government’s own legally binding pledge to cut carbon emissions by 80% by 2050. Transport secretary Chris Grayling said, without any justification for his belief, that he was “confident” that technical innovations would cut aviation CO2 emissions enough, so expansion could happen without breaking the targets. Hopes that either biofuels or electric planes would enable aviation to become a low carbon means of transport are unrealistic.
Click here to view full story…
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