Skeleton arguments by Plan B Earth for their legal appeal against government approval of the Airports NPS
The legal appeals against the decision of the High Court, to reject the legal challenges against the Secretary of State for Transport (SST) decision to designate the Airports National Policy Statement (NPS), starts on 17th October, at the Appeal Court, in the Strand. The ANPS gave approval for a 3rd Heathrow runway. One of the four parties who are appealing is Plan B Earth, on grounds of the increased carbon emissions that the runway would produce. The Plan B skeleton argument has been publicised, and this says the SST and the court below proceeded on the false assumption that “Government policy relating to … climate change” was confined to a) (The minimum target established by CCA s. 1 as it was then, to reduce greenhouse gas emissions by at least 80% by 2050 compared to a 1990 baseline) and that b) (a commitment to introduce a new UK target in accordance with the Paris Agreement (a commitment which has now been implemented into law, via a change to CCA s.1) should be disregarded. Also that neither the SST nor the court below, have advanced any explanation for disregarding the Committee on Climate Change’s clear position on this issue. “If the court below had given proper account to these matters, and properly considered the advice of the CCC, it would have been driven to the conclusion that the ANPS was fundamentally flawed and that it should be quashed.”
IN THE COURT OF APPEAL ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION PLANNING COURT
 EWHC 1070 (ADMIN) (HICKINBOTTOM LJ AND HOLGATE J)
APPEAL NO: C1/2019/1053
THE QUEEN on the application of PLAN B. EARTH – Appellant
– and –
THE SECRETARY OF STATE FOR TRANSPORT – Respondent
– and –
(1) HEATHROW AIRPORT LIMITED
(2) ARORA HOLDINGS LIMITED – Interested Parties
APPELLANT’S REPLY TO RESPONDENT AND INTERESTED PARTIES’ SKELETON ARGUMENTS
1. The Secretary of State for Transport’s (“SST”) Skeleton argument fails to confront the essence of the Plan B. Earth’s (“Plan B”) appeal, which is that at the time of 2 the designation of the ANPS in June 2018 “Government policy relating to … climate change”, for the purposes of s. 5(8) of the 2008 Act, included both:
a) The minimum target established by CCA s. 1 as it was then, to reduce greenhouse gas emissions by at least 80% by 2050 compared to a 1990 baseline; and
b) A commitment to introduce a new UK target in accordance with the Paris Agreement (a commitment which has now been implemented into law, via a change to CCA s. 1).
2. The SST and the court below proceeded on the false assumption that “Government policy relating to … climate change” was confined to a) above and that b) above should be disregarded.
3. Both the SST and the court below appear to recognise and rely upon and the expertise of the Committee on Climate Change (“the CCC”), the government’s statutory adviser on climate change. Yet both ignore the unequivocal advice of the CCC that it was “essential” to consider both of these components of Government policy and to make immediate provision for the more stringent target that was implied. In its response to the Government’s Clean Growth Strategy, published in January 2018, the CCC stated:
“However, the Paris Agreement is likely to require greater ambition by 2050 and for emissions to reach net zero at some point in the second half of the century. It is therefore essential that actions are taken now to enable these deeper reductions to be achieved….”1 (emphasis added).
4. Neither the SST nor the court below, have advanced any explanation for disregarding the CCC’s clear position on this issue.
5. On 14 June 2018 the Chair of the CCC Lord Deben, and the Deputy Chair Baroness Brown, wrote a joint a letter to the Secretary of State of the time, the Rt Hon Chris Grayling MP, regarding his approach to the ANPS:
“The UK has a legally binding commitment to reduce greenhouse gas emissions under the Climate Change Act. The Government has also committed, through the Paris Agreement, to limit the rise in global temperature to well below 2°C and to pursue efforts to limit it to 1.5°C.
We were surprised that your statement to the House of Commons on the National Policy Statement on 5 June 2018 made no mention of either of these commitments. It is essential that aviation’s place in the overall strategy for UK emissions reduction is considered and planned fully by your Department …”. (emphasis added)
6. In responding to the CCC by letter dated 20 June 20182, the SST omitted to explain that he considered the Paris Agreement irrelevant and that he preferred the historic and discredited 2˚C global limit as his benchmark. Rather he referred to the CCC’s concerns as a “detail”. If the SST considered the CCC had it wrong, he ought to have made that clear, openly and transparently.
7. The SST and the court below cannot have it both ways. They cannot rely upon the advice of the CCC to explain the irrelevance of the Paris Agreement, while simultaneously ignoring the CCC’s unequivocal position that the Paris Temperature Limit, and the Government’s commitment to a Paris compliant target were critical factors to be taken into account in the designation of the ANPS.
8. The SST claims the now amended 2050 Target is of no relevance to these proceedings on the basis that it was not “available to the SST to consider when deciding whether to designate the ANPS”3. The Respondent is correct that the amended target itself was not available at the time of the designation. But the change to legislation confirms and reflects the Government’s pre-existing policy commitment to introduce a net zero target, in accordance with the Paris Agreement. And that was available for the SST to consider when deciding whether to designate the ANPS, because it was first made by the Government in March 2016, but the SST considered it to be “irrelevant”. Legislation does not appear from nowhere. Logically and constitutionally (in the ordinary course of events), it represents the Legislature’s approval to a change to the Executive’s pre-existing policy. The 2008 Act s.5(8) requires for good reason the SST to consider the policy of the Executive (and not simply the will of the Legislature).
9. The remainder of this reply responds to more specific points raised in the SST’s and Interested Parties’ skeleton arguments.
…. and it continues with
B. THE POSITION OF THE OTHER PARTIES ON S.5(8) OF THE 2008 ACT
C. THE GOVERNMENT’S COMMITMENT TO A PARIS COMPLIANT TARGET
D. THE SST’S FAILURE TO EXPLAIN HIS POSITION
E. THE 2˚C TEMPERATURE LIMIT
F. REVIEW UNDER THE PLANNING ACT s. 6
G. THE ECONOMIC ARGUMENT
H. THE FIRST INTERESTED PARTY’S DISCRETIONARY ARGUMENT
see https://planb.earth/wp-content/uploads/2019/09/Appeal-skeleton-reply-FINAL.pdf for details of those.
52. In finding in favour of the Respondent that the Paris Agreement was an “irrelevant consideration” for the purposes “Government policy relating to … climate change” the court below ignored the Government’s commitment to introducing a net zero target, in line with Paris Agreement, which was first announced in March 2016 and which has now been implemented into law. While claiming to rely on the advice of the CCC, the court below in fact ignored its advice that it was “essential”, in designating the ANPS, to allow for a Paris compliant target.
53. Further the court below ignored the Respondent’s active misrepresentation through the consultation process to the effect that he had considered the ANPS against the Paris Agreement; and ignored that fact that the position he argued before the court below was fundamentally different from the one he had presented through the consultation process.
54. If the court below had given proper account to these matters, and properly considered the advice of the CCC, it would have been driven to the conclusion that the ANPS was fundamentally flawed and that it should be quashed.
18 September 2019
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.”