Heathrow expansion blocked by Court of Appeal ruling NPS illegal, for ignoring impact of carbon on Paris Agreement obligations
Date added: February 27, 2020
The Court of Appeal has ruled that the government’s decision to expand Heathrow was “unlawful” on climate change grounds. This is one of the most important environmental law cases in this country for over a generation, and ground-breaking for ensuring carbon emissions are properly taken into account. The judgement, which sets a key legal precedent, said the government (Grayling as Sec of State for Transport) had wrongly ignored its international climate change commitments under the Paris Agreement. Such an omission was a fatal flaw to the lawfulness of the National Policy Statement, approving a 3rd Heathrow runway. Grayling had accepted flawed legal advice, implying that there was no need to consider obligations to cut carbon, through the Paris Agreement. This judgment has vital wider implications for keeping climate change at the heart of all planning decisions. From now on, every infrastructure spending decision in the UK could face legal challenge if it doesn’t comply with the Climate Change Act, which mandates virtually zero emissions by 2050. The government has said it will not appeal to the Supreme Court. . Tweet
Friends of the Earth wins campaign to protect the climate from Heathrow Third Runway
Friends of the Earth, and lawyers Leigh Day, press release
27 February 2020
“This ruling is an absolutely ground-breaking result for climate justice. We were fighting a project that would have had dire implications for present and future generations.” Will Rundle, head of legal at Friends of the Earth.
The government’s decision to expand Heathrow Airport has been ruled “unlawful” by the Court of Appeal, on climate change grounds, in one of the most important environmental law cases in this country for over a generation. This follows a successful legal challenge by environmental organisation Friends of the Earth, represented by Leigh Day, in a victory for local campaigners who have been battling against the third runway for years.
Will Rundle, head of legal at Friends of the Earth, added:
“We are delighted with The Court of Appeal’s ruling, which goes to show the massive importance of the legal system to check the clear abuse of state power by government, such as in this case.
“Shockingly, this case revealed that the government accepted legal advice that it should not consider the Paris Agreement when giving the third runway the go-ahead. The Court has said very clearly that was illegal.
“This judgment has exciting wider implications for keeping climate change at the heart of all planning decisions. It’s time for developers and public authorities to be held to account when it comes to the climate impact of their damaging developments.”
Jenny Bates, climate campaigner at Friends of the Earth, said:
“The UK government must take this ruling as an opportunity to play its full part in fixing the international climate crisis, especially in the year that it hosts crucial climate talks in Glasgow. This means finally moving on from the climate-wrecking Heathrow third runway project and ensuring the UK aviation sector actually cuts its climate emissions, rather than adding to them.
“The Court has specifically recognised how the climate crisis needs to be at the heart of major infrastructure decisions. It’s time that the government catches up with this fact and stops pursuing its outdated climate-wrecking transport projects, such as major new roads and airport expansion at Heathrow or elsewhere, and instead gives us the clean transport network we need.”
Rowan Smith, solicitor in the environmental law team at law firm Leigh Day, said:
“What is emphatically clear in this judgment is that the Court of Appeal concluded that there was absolutely no legal means by which the Government could ignore its international climate change commitments under the Paris Agreement, and that such an omission was a fatal flaw to the lawfulness of the policy to greenlight a third runway at Heathrow Airport.
“The Lord Justices simply followed the legal framework set by Parliament, citing as they did their fundamental function to maintain the rule of law, and found that the Paris Agreement was so obviously material to a decision on Heathrow Airport expansion that the Secretary of State was legally bound to consider it. The Government must now go back to the drawing board and come up with a new policy, which lawfully fulfils its sustainable development duties and protects future generations.”
In its historic ruling, the designation of the Airports National Policy Statement (ANPS) was found unlawful by the Lord Justices of appeal.
In their judgment, the Secretary of State for Transport (at the time Chris Grayling) had breached s10 of the Planning Act 2008, and acted irrationally, by disregarding the Paris Agreement, the non-CO2 warming impacts of aviation, and the effects of climate change beyond 2050, when making the ANPS to expand Heathrow. He also breached his duty to undertake a lawful strategic environmental assessment in accordance with the requirements of the SEA Directive and the SEA Regulations.
The Court ruled that this case was one of “exceptional public interest”, noting that “the issue of climate change is a matter of profound national and international importance of great concern to the public – and, indeed, to the Government of the United Kingdom and many other national governments, as is demonstrated by their commitment to the Paris Agreement.”
Previous polling* for Friends of the Earth found 64% of people, after being told the potential benefits and negatives, are concerned about the climate impact of building a third runway at Heathrow Airport. The same survey found that only 1 in 4 people support the plans for a third runway.
Friends of the Earth are represented by law firm Leigh Day and barristers David Wolfe QC of Matrix Chambers, Peter Lockley of 11 Kings Bench Walk Chambers and Andrew Parkinson of Landmark Chambers.
In October 2019 The Court of Appeal heard Friends of the Earth’s appeal against the High Court’s decision that the government had not breached its sustainable development duties by allowing the expansion of Heathrow.
The High Court ruled on 1 May 2019 that the government’s decision to allow the building of a third runway at Heathrow airport was lawful. This followed legal challenges brought by a number of environmental NGOs, pressure groups and local councils which were heard collectively by the court in March 2019.
Environmental group Friends of the Earth brought one of the two successful legal challenges in the proceedings, focusing on the climate change and sustainable development impacts of a third runway.
Friends of the Earth successfully argued that the decision breached the Secretary of State for Transport’s sustainable development duty in failing to have regard to the desirability of mitigating climate change for future generations. This was specifically due to: not considering the UN’s Paris Agreement, the lack of any climate impacts of the project beyond 2050 when the lifetime of the project is expected to run until 2085, and the failure to factor in any impact from the non-CO2 contribution of aviation to climate breakdown, in breach of the precautionary principle.
The exact details of the remedy following this finding of unlawfulness are anticipated to be confirmed by the Court shortly but can include the entirety of the decision to allow the Third Runway being swept away.
*Survey data from YouGov Plc. Total sample size was 2,017 adults. Fieldwork was undertaken between 4th – 6th October 2019. The survey was carried out online. The figures have been weighted and are representative of all GB adults (aged 18+).
The survey asked people about their level of concern, and whether they support or oppose the expansion, after respondents were shown the following text: “There are currently plans for a third runway to be built at Heathrow Airport. The additional runway would put 700 more planes into the sky each day – 50% more than the airport currently does. It has been suggested that this will bring certain benefits by creating new jobs and domestic flight routes, but it will also contribute to climate change and negatively impact those living around Heathrow Airport.”
Friends of the Earth is an international community dedicated to the protection of the natural world and the wellbeing of everyone in it. We bring together more than two million people in 75 countries, combining people power all over the world to transform local actions into global impact. For more information visit: friendsoftheearth.uk follow us at @friends_earth, or like our Facebook page.
Comment from AirportWatch:
Heathrow’s expansion in its current form is over. We await news on any appeal. But right now government must either abandon the expansion entirely, or go back to the drawing board and give serious consideration to the climate impact in any future plans, in accordance with the law. The only option that would enable Heathrow to build its 3rd runway (unless by some fluke it was able to appeal the legal decision made today) would be for the NPS to be re-written, taking the carbon properly into account. And it would have to take the non-CO2 impacts into account, as well as just the carbon emissions. The NPS would have to be agreed by Parliament. Only with a new NPS could Heathrow then submit a Development Consent Order, based on the new, improved, NPS. And as the carbon emissions would have to be far, far lower than those projected for the runway at present, it would be unlikely the flights would pay for the huge expense of the runway. It would make no economic sense. Heathrow Hub might try to persevere, but their scheme also has huge carbon emissions. Heathrow may still try to get another 25,000 annual flights, which it was aiming to do soon, well before it could get a 3rd runway built. That increase in flights, causing a lot of extra noise disturbance, will need to be opposed.
The obligation to take climate policy seriously in a National Policy Statement, from Infrastructure planning.
Note on National Policy Statements from the governments Infrastructure Planning Inspectorate
Heathrow judgment couldn’t be simpler. An Act of Parliament said any “National Policy Statement” must explain how it “takes account of Government policy relating to the mitigation of, and adaptation to, climate change.” The Airports National Policy Statement didn’t, so was unlawful.
Campaign Update from the No 3rd Runway Coalition – on the legal ruling that the DfT’s Airports National Policy Statement is illegal, due to ignoring climate change
27th February 2020
What a marvellous result!
The Court of Appeal has found the Airports National Policy Statement to be unlawful, through failure to properly consider the Paris Agreement.
Moreover, when given the opportunity to signal that it would appeal to the Supreme Court, the government declined.
The full raft of judgement documents can be found here. The main summary of the judgement ishere – paragraphs 9, 10 and 11 are the key ones! [They are copied below].
The vehicle for Heathrow expansion has been the North West runway Airports National Policy Statement, and the wheels have now firmly come off that.
Huge thanks goes to our claimant members, who have run circles around the best legal efforts of the DfT to impose this abomination on our communities.
And massive gratitude goes to all members of the Coalition, whose steadfast enthusiasm has made us an outstanding campaigning organisation over the last three years.
HEATHROW EXPANSION BLOCKED BY COURT OF APPEAL IN VICTORY FOR CLIMATE CAMPAIGNERS
Environmental groups hail ‘absolutely ground-breaking result for climate justice’
By Qin Xie @qinxiesays and Chris Baynes (The Independent)
The expansion of Heathrow airport has been ruled unlawful by the Court of Appeal in a victory for climate campaigners fighting to block controversial plans for a third runway.
Judges concluded the government’s decision to permit the expansion of the UK’s busiest airport was illegal because ministers did not take into account the impact on the country’s commitment to tackle global warming.
Heathrow is expected to challenge Thursday’s ruling, but the government has not lodged an appeal and campaigners said they hoped Boris Johnson would abandon the project.
Legal action had been brought by a group of councils in London affected by the expansion, environmental charities including Greenpeace, Friends Of The Earth and Plan B, and London mayor Sadiq Khan.
Lords Justice Lindblom, Singh and Haddon-Cave ruled the government did not take enough account of its commitment to the Paris Agreement on climate change when setting out its support for the proposals in its National Policy Statement (NPS).
The UN’s Paris Agreement, which came into force in November 2016, commits signatories to take measures to limit global warming to well below 2C.
Lord Justice Lindblom told the court: “The Paris Agreement ought to have been taken into account by the Secretary of State in the preparation of the NPS and an explanation given as to how it was taken into account, but it was not.”
Mayor of London Sadiq Khan said the ruling was “a victory for Londoners and future generations”.
“A new runway at Heathrow would have serious consequences on climate change, on air quality, on noise pollution, on road and rail networks and on the quality of life in our city. The government must now finally see sense and abandon plans for a third runway at Heathrow,” he added.
Will Rundle, head of legal at Friends of the Earth, said: “This ruling is an absolutely ground-breaking result for climate justice. We were fighting a project that would have had dire implications for present and future generations.”
Cait Hewitt, deputy director of Aviation Environment Federation, added: “It’s very hard to see how the government could now ever demonstrate that a third runway could be reconciled with the necessary scale of climate action.
“This ruling should mark the end of plans for any new runways in the UK. The government should stand up to the airports lobby, drop its support for airport expansion, and invest instead in low-carbon transport and supporting British tourism.”
The ruling will come as a blow to the UK airline industry.
[Then there is a bit of puff from the airline industry by Tim Alderslade, chief executive of Airlines UK, the industry body representing UK-registered airlines, ]
The ruling was announced on Thursday morning following a hearing in October last year.
9. However, we have concluded that the challenges should succeed in one important respect. This relates to the legislative provisions concerning the Government’s policy and commitments on climate change, in particular the provision in section 5(8) of the Planning Act, which requires that the reasons for the policy set out in the ANPS “must … include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change”. We have concluded, in particular, that the designation of the ANPS was unlawful by reason of a failure to take into account the Government’s commitment to the provisions of the Paris Agreement on climate change, concluded in December 2015 and ratified by the United Kingdom in November 2016 (paragraphs 222 to 238 and 242 to 261).
10. We have concluded that the ANPS was not produced as the law requires, and indeed as Parliament has expressly provided. The statutory regime for the formulation of a national policy statement, which Parliament put in place in the Planning Act, was not fully complied with. The Paris Agreement ought to have been taken into account by the Secretary of State in the preparation of the ANPS and an explanation given as to how it was taken into account, but it was not (paragraph 283).
11. That, in our view, is legally fatal to the ANPS in its present form. As we have explained, the normal result in a successful claim for judicial review must follow, that the court will not permit unlawful action by a public body to stand. Appropriate relief must therefore be granted, as normally it will be where unlawfulness in the conduct of the executive is established (paragraph 284). The Secretary of State did not contend that, if this was our conclusion, the outcome would or might have been no different – though such an argument was pursued by Heathrow Airport Ltd. In our view, it is necessary to grant a suitable remedy at this stage to ensure, at least, that the ANPS does not remain effective in its present unlawful form pending the outcome of its statutory review – under section 6 of the Planning Act – in the light of the Paris Agreement (paragraph 278). Section 6(5) of the Planning Act states that “[after] completing a review of all or part of a national policy statement the Secretary of State must do one of the following … (a) amend the statement; (b) withdraw the statement’s designation as a national policy statement; (c) leave the statement as it is” (paragraph 39).
12. The parties have had an opportunity in the light of our draft judgments to make submissions to us on the appropriate remedy to reflect the conclusions we have reached. In the light of those submissions, we have concluded that the appropriate remedy is a declaration, the effect of which will be to declare the designation decision unlawful and to prevent the ANPS from having any legal effect unless and until the Secretary of State has undertaken a review of it in accordance with the relevant statutory provisions, including the provisions of section 6, 7 and 9 of the Planning Act 2008. Any such review would have to be conducted in accordance with the judgment of this court. The initiation, scope and timescale of any review must and will be a matter for the Secretary of State to decide (paragraphs 279 to 280).
13. Our decision should be properly understood. We have not decided, and could not decide, that there will be no third runway at Heathrow. We have not found that a national policy statement supporting this project is necessarily incompatible with the United Kingdom’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement, or with any other policy the Government may adopt or international obligation it may undertake. The consequence of our decision is that the Government will now have the opportunity to reconsider the ANPS in accordance with the clear statutory requirements that Parliament has imposed (paragraph 285).
This judgement will fly round the globe quicker than a 747.
More and more politicians worldwide are pledging to make their economies climate neutral, but the Appeal Court judges have shown exactly what this intention implies.
From now on, every infrastructure spending decision in the UK could face legal challenge if it doesn’t comply with the Climate Change Act, which mandates virtually zero emissions by 2050.
It’s not clear that’s what MPs intended when they signed up to the 2050 target, but in today’s court ruling, it’s what they’ve got.
The prime minister’s decision not to appeal against the ruling may also call into question aviation expansion in other airports, as there is currently no viable technical fix to make planes zero-carbon, and carbon offsetting schemes proposed by the aviation industry are contentious.
Environmentalists see today as the day the reality of climate change finally dawned.
Court of Appeal clips Heathrow’s wings as third runway forced into climate emergency landing
Major setback for plans to build a third runway at Heathrow as the Court of Appeal rules the government decision was unlawful for ignoring the Paris climate agreement
27TH FEBRUARY 2020
Greenpeace press release:
Today the Court of Appeal delivered its decision on the Judicial Reviews of the government’s Airport National Policy Statement (ANPS), which in 2018 gave Heathrow’s proposed third runway the go-ahead. The Court’s most important finding was that the Secretary of State for Transport (Chris Grayling) had failed to give due consideration to the UK’s commitments to reduce carbon emissions under the Paris Agreement, which was legally fatal to the ANPS, and a new one must be produced before the development can continue.
John Sauven, Executive Director of Greenpeace UK, said:
“The court has decided that the Airports National Policy Statement is fatally undermined by ignoring climate commitments, but we still need the government to permanently ground Heathrow’s expansion plans. The third runway is already on its knees over costs, noise, air pollution, habitat loss and lack of access, and now Heathrow Ltd has yet another impossibly high hurdle to clear. No amount of spin from Heathrow’s PR machine can obscure the carbon logic of a new runway. Their plans would pollute as much as a small country. Boris Johnson should now put Heathrow out of its misery and cancel the third runway once and for all. No ifs, no buts, no lies, no u-turns.”
John Sauven continued:
“Instead of locking in more carbon pollution with more airport expansion, we urgently need a fair and effective way to cut aviation emissions. Currently, the vast majority of UK flights are taken by the 10% of the population who are frequent fliers, with around half of the UK not flying abroad at all in any given year. A frequent flyer levy would help make flying cheaper for those who do it rarely while applying a heavy cost to binge flying.”
Other problems confronting Heathrow’s plans have been moved to the jurisdiction of the planning process, to be determined when Heathrow Ltd apply to the Planning Inspectorate for a Development Consent Order, if they ever do. A ruling from the High Court last year stated the development could not go ahead if it posed a risk of breaching air quality limits. The area around Heathrow is already frequently in breach, as is central London and other areas affected by Heathrow traffic, and so meeting this requirement seems unlikely.
Heathrow have recently published plans to reduce their carbon emissions to net-zero. However, these plans exclude emissions from aeroplanes, and so ignore the vast majority of Heathrow’s pollution.
Greenpeace are party to an appeal of a Judicial Review of the government’s Aviation National Policy Statement, together with Hillingdon, Wandsworth, Hammersmith and Fulham, Richmond upon Thames and Windsor and Maidenhead councils, joined by the Mayor of London. Other JRs have been brought by Friends of the Earth, Plan B, and Heathrow Hub Ltd.