What will be the impact of the UK ambition of “Net Zero” on the Airports NPS?
Lawyers, BDB Pitmans, for whom airport planning is an area of work, have commented on the change by the UK to a net zero carbon target by 2050 – and its effect on the aviation sector. They say the 1990 baseline was 778 million tonnes of CO2. With the 80% cut target, until 27th June, the UK had to cut CO2 emissions to 155.6 million tonnes by 2050. It now has to be reduced to 0 tonnes. The government understands that: “Achieving net-zero GHG emissions for the UK will rely on a range of Speculative options that currently have very low levels of technology readiness, very high costs, and/or significant barriers to public acceptability.” One change that will be needed is for people to fly less. The legal challenges in March 2019 against the Airports NPS had grounds relating to carbon emissions, but these were dismissed, on the basis of developments like the Paris Agreement had not yet being translated into UK law. Now the Appeal Court will hear the legal challenges, and as the CO2 target has been changed, presumably the conclusions of the NPS are now vulnerable. The Sec of State for Transport will need to review the NPS, considering whether there has been a “significant change in any circumstances.”
831: NET ZERO COMES INTO FORCE
28.6.2019 (By Angus Walker, Partner at bdb pitmans – lawyers)
Today’s entry reports on a highly significant amendment to the Climate Change Act 2008.
It is only changing an ‘8’ into ’10’, but will have a considerable effect on the future of life in the UK, including but not nearly limited to infrastructure projects.
Parliament has approved a change to section 1(1) of the Climate Change Act 2008 (CCA), an act that was given royal assent on the same day as the Planning Act 2008.
Section 1(1) stated until yesterday:
‘It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline.’
It now states:
‘It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 100% lower than the 1990 baseline.’
[The Sec of State referred to is Greg Clark, Secretary of State for Business, Energy and Industrial Strategy (BEIS). AW comment]
Spot the difference? The 1990 baseline was 778 million tonnes of CO2, and so until yesterday that had to be reduced to 155.6 million tonnes by 2050. It now has to be reduced to 0 tonnes.
The change was approved by the Commons on Monday (24 June) and the Lords on Wednesday (26 June).
The Lords had a ‘regret’ motion passed (that there wasn’t enough information on how the new target would be met, amongst other things), but still approved the change. It was then signed into law by the relevant minister Chris Skidmore MP later that day.
By its terms it came into force yesterday (27 June).
Of the justifications for changing the target available in the CCA, the Government has chosen the following in the preamble to the statutory instrument making the amendment:
‘The Secretary of State considers that since the Act was passed, there have been significant developments in scientific knowledge about climate change that make it appropriate to amend the percentage specified in section 1(1) of the Act.’
The new target is commonly referred to as ‘net zero’. That phrase is also the title of the Committee on Climate Change’s advice, which must be obtained before the threshold can be changed.
Note that the advice was published in May and was sought in October 2018, so it is unfair to say that Theresa May only thought about this since resigning as leader of the Conservative Party – the wheels were in motion much earlier. The speed with which the change has been made could, however, have been prompted by her desire to leave a legacy.
The scale of the challenge should not be underestimated. The Net Zero report says (on page 168 and elsewhere): ‘Achieving net-zero GHG emissions for the UK will rely on a range of Speculative options that currently have very low levels of technology readiness, very high costs, and/or significant barriers to public acceptability.’
The speculative options considered (on pages 156-158, which are in addition to the recommendations to achieve the previous 80% reduction) are:
- behavioural changes (ie eating less meat and flying less);
- changes in land use such as growing more trees (50,000 hectares a year – more than two Rutlands);
- removing CO2 directly from the air (four methods are suggested) and
- (inventing and) using synthetic fuels.
Note that the Airports National Policy Statement legal challenge in March this year had grounds relating to climate change. These were dismissed because although developments such as the Paris Agreement had happened, they had not yet been translated into UK law – the Climate Change Act 2008 target was the thing.
Now that that target has been changed, presumably the conclusions of the NPS are now vulnerable.
The judges said (at paragraph 648 of the judgment):
‘In our view, given the statutory scheme in the CCA 2008 and the work that was being done on if [sic] and how to amend the domestic law to take into account the Paris Agreement, the Secretary of State did not arguably act unlawfully in not taking into account that Agreement when preferring the NWR Scheme and in designating the ANPS as he did. As we have described, if scientific circumstances change, it is open to him to review the ANPS; and, in any event, at the DCO stage this issue will be re-visited on the basis of the then up to date scientific position.’
That the judgment came out on 1 May and Net Zero came out on 2 May is no doubt a coincidence – even having received Net Zero, the Government could have taken ages to decide what to do with it rather than legislating only eight weeks later.
The Secretary of State [presumably the Sec of State for Transport, not BEIS ? AW note] must review an NPS or part of one if he or she thinks it is appropriate, which means considering:
‘(a) since the time when the statement was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the statement was decided, (see link)
(b) the change was not anticipated at that time, and
(c) if the change had been anticipated at that time, any of the policy set out in the statement would have been materially different.’ [point number 108 ]
The NPS says, eg at paragraph 3.52 link :
‘The Government agrees with the evidence set out by the Airports Commission that expansion at Heathrow Airport is consistent with the UK’s climate change obligations’.
Note that international aviation and shipping are currently not included in the calculation of UK emissions under the CCA. The Government appeared to say that they will be included when it comes to ‘net zero’ (see the debate in the Lords at column 1086) but was more circumspect in a written answer on the same day.
As can be seen from the above, the significance of this alteration to climate change targets is enormous and has the potential to affect life in the UK dramatically over the next 30 years.
By 2050, for any CO2 we emit, we will have to have in place equivalent carbon capture technology to cancel it out. So it doesn’t mean CO2 emissions will be impossible, but we will need technology in place that has not yet been invented on a large scale and an awful lot of trees.
Cancelling the £1 billion carbon capture and storage competition in November 2015 won’t help with that.
Plan B Earth skeleton argument for Heathrow legal Appeal in October – that Grayling’s designation of the NPS was unlawful
The legal challenge by Plan B Earth is one of the four that will be heard at the Appeal Court from the 17th October. They have published their skeleton argument, which says, in summary that on 27th June 2019, the UK carbon target was amended by statutory instrument to read “at least 100%” cut by 2050 (ie. net zero) rather than the previous target of an 80% cut. Plan B say the “Secretary of State [Grayling] proceeded on the false premise that the Paris Agreement on Climate Change and the Government’s commitment to introducing a net zero carbon target in accordance with the Paris Agreement were “irrelevant” considerations for the purposes of s.5(8) of” the 2008 Climate Change Act. And the Secretary of State “chose to ignore these developments and proceeded as if there had been no material developments in government policy relating to climate change since 2008 and as if no change were in contemplation.” And “The basis of the Appellant’s claim that the designation of the ANPS was unlawful, and that it should be quashed, is that the Secretary of State approach to these matters was fundamentally flawed.”