Supreme Court rules that the Airports NPS is legal; climate issues of a Heathrow runway would have to be decided at the DCO stage

The Supreme Court has ruled that the Airports NPS is lawful. In February 2020 the Appeal Court had ruled that it was not, on climate grounds. The ANPS is the national policy framework which governs the construction of a Heathrow 3rd runway.  Any future application for development consent to build this runway will be considered against the policy framework in the ANPS. The ANPS does not grant development consent in its own right. The Supreme Court rejected the legal challenges by Friends of the Earth, and Plan B Earth, that the then Secretary of State, Chris Grayling, had not taken climate properly into account, nor the UK’s commitments under the Paris Agreement. These are tricky points of law, and definition of the term “government policy” rather than the reality of climate policy.  Heathrow is now able to continue with plans to apply for a Development Consent Order (DCO) which is the planning stage of the runway scheme.The Supreme Court said at the DCO stage, Heathrow would have to show “that the development would be compatible with the up-to-date requirements under the Paris Agreement and the CCA 2008 measures as revised to take account of those requirements” and “The Court further holds that future applications [for the runway] will be assessed against the emissions targets and environmental policies in force at that later date rather than those set out in the ANPS.”
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Top UK court overturns block on Heathrow’s third runway

Earlier ruling said expansion plan was illegal as government had not considered its climate commitments

  Environment editor  @dpcarrington    (The Guardian)

The supreme court has overturned a February judgment that a third runway at Heathrow airport was illegal. It means the project can now seek planning permission, but the ultimate completion of the runway remains uncertain.

The supreme court ruling marks the latest twist in years of legal and political wrangling over the climate impact and economic benefits of expanding the airport. The decision in February was seen as historic by environmental campaigners, as it was the first significant ruling in the world to be based on the Paris climate agreement, and related cases were subsequently brought against plans to build more roads and gas-fired power plants in the UK.

The Court of Appeal had found the government’s approval of the runway was illegal because ministers had failed to take into account the UK’s commitments under the 2015 Paris climate accord, which requires keeping global temperature rise as close to 1.5C as possible. But following arguments by Heathrow’s lawyers, the supreme court found this was not necessary and overturned the judgment.

The ruling means the airport can now seek a Development Consent Order (DCO), a type of planning permission for nationally significant infrastructure. This may be difficult, as it will take into consideration stricter pledges to cut emissions made recently by the UK government, which had accepted the February decision.

Since the runway [not strictly he runway, but the policy document the Airports NPS] was approved in 2018, the UK has committed to net zero emissions by 2050 and on 4 December it pledged to cut carbon emissions by 68% by 2030. The climate crisis is worsening as CO2 levels continue to rise in the atmosphere and international attention is focused on the UK’s actions because it will host a critical UN climate summit in November next year in Glasgow.

Before the coronavirus pandemic, Heathrow was one of the world’s busiest airports, with 80 million passengers a year. The £14bn third runway would bring 700 more planes a day and a big rise in carbon emissions. However, Covid-19 travel restrictions have devastated aviation and Heathrow has said the runway could be delayed by five years, having previously set 2028 as a completion date. Other observers said the third runway may now never be needed.

“I still don’t think the third runway is going to happen,” said Tim Crosland, a lawyer at Plan B, which brought the legal case against Heathrow. “The really damaging thing [about the supreme court ruling] is the precedent for the other cases.” He said the court of appeal ruling that the UK’s Paris agreement commitments must be considered had been a “really strong lever” in legal arguments against high-carbon infrastructure.

Crosland said he was considering an appeal to the European court of human Rights, an option not affected by Brexit. The verdict was under court embargo until Wednesday morning, but Crosland tweeted it on Tuesday as “an act of civil disobedience”, risking contempt of court. “I had no choice but to protest the deep immorality of the court’s ruling,” he said.

The supreme court also overturned a parallel Friends of the Earth case. Will Rundle, head of legal at Friends of the Earth, said: “We are disappointed, but pleased that [the judgment] confirms our view that climate impacts will still need to be fully determined at planning. Heathrow airport expansion remains in doubt and harder than ever, given the [UK’s] increasingly stringent climate policy.”

“We are in this for people everywhere facing climate breakdown right now, and for the next generation who are being left to inherit a world changed for the worse,” Rundle said.

“Approving Heathrow’s third runway is a betrayal of our children’s future and incompatible with the UK’s climate commitments,” said Magdalena Heuwieser from the Stay Grounded campaign. “We condemn the reckless and irresponsible verdict. But this fight is far from over.”

Parmjit Dhanda, at the campaign group Back Heathrow, [paid by the airport] said: “This is an important moment for local communities, desperate for jobs and apprenticeships at a very hard time for our economy. It is also a huge moment for the UK as it moves towards an uncertain Brexit, but now with the confidence that international trade could be boosted by additional capacity at the country’s only hub airport. Alongside our supporters in the CBI, the TUC, it is an opportunity to progress, while also meeting the country’s carbon-reduction targets by 2050.”

Most flights from the UK are taken for pleasure and just 20% of the UK population take more than two-thirds of international flights. Critics also say the economic benefits are illusory given, for example, the estimated £10bn of taxpayers’ money needed to alter road and rail links to the airport, and that it would draw investment towards the south-east.

A Heathrow spokesman said: “This is the right result for the country. Only by expanding the UK’s hub airport can we connect all of Britain to all of the growing markets of the world, helping to create hundreds of thousands of jobs. Heathrow has already committed to net zero and this ruling recognises the robust planning process that will require us to prove expansion is compliant with the UK’s climate change obligations, including the Paris Climate Agreement, before construction can begin.”

The government approved the third runway in 2018, winning a large parliamentary majority. However, ministers said in February that they accepted the court of appeal judgment that it was illegal. The prime minister, Boris Johnson, has opposed the runway, saying in 2015 that he would “lie down in front of those bulldozers and stop the construction”.

Last week, the Climate Change Committee, the government’s official advisers, said there should be no airport expansion unless emissions from flights could be reduced to compensate.

 

 

and from the Independent:

The news comes days after the UK’s independent climate advisers said that there could be no “net airport expansion” if the country is to meet its goal of reaching net-zero emissions by 2050.

This advice suggests any new airport expansion would need to be met with tougher restrictions elsewhere.

Caroline Lucas, Green Party MP, said: “This is incredibly disappointing news and takes us backwards in our response to the climate crisis. Commercial interests have won out over the protection of our planet and the wellbeing of future generations.

“But it is not the end of the campaign and Heathrow’s plans will be opposed at every step of the planning process to stop this very damaging project which remains incompatible with the UK’s obligations under the Paris Agreement.”

https://www.independent.co.uk/environment/climate-change/heathrow-third-runway-climate-change-b1774831.html

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The Supreme Court judgement

PRESS SUMMARY

16th December 2020

https://www.supremecourt.uk/cases/docs/uksc-2020-0042-press-summary.pdf

R (on the application of Friends of the Earth Ltd and others) (Respondents) v Heathrow
Airport Ltd (Appellant) [2020] UKSC 52
On appeal from: [2020] EWCA Civ 214

JUSTICES: Lord Reed (President), Lord Hodge (Deputy President), Lady Black, Lord Sales,
Lord Leggatt

BACKGROUND TO THE APPEAL

This appeal concerns the lawfulness of the Airports National Policy Statement (the “ANPS”) and its accompanying environmental report. The ANPS is the national policy framework which governs the construction of a third runway at Heathrow Airport. Any future application for development consent to build this runway will be considered against the policy framework in the ANPS. The ANPS does not grant development consent in its own right.

Successive governments have considered whether there is a need for increased airport capacity in the South East of England. The Secretary of State for Transport (the “Secretary of State”) declared that the Government accepted the case for airport expansion in 2015. He announced that the North West Runway (“NWR”) scheme was the preferred scheme in October 2016.

The UK was separately developing its policy on environmental issues and climate change. On 22 April 2016 the UK signed the Paris Agreement under the United Nations Framework Convention on Climate Change (the “Paris Agreement”). The UK ratified the agreement on 17 November 2016. The agreement sets out various targets for the reduction of greenhouse gas emissions, particularly carbon dioxide, and the reduction of temperature increases resulting from global warming (the “Paris Agreement Targets”). Two Government ministers – Andrea Leadsom MP and Amber Rudd MP – made statements about the Government’s approach to the Paris Agreement in March 2016.

Against this background, the Secretary of State designated the ANPS as national policy on 26 June 2018.  Objectors to the NWR scheme, including Friends of the Earth Ltd (“FoE”) and Plan B Earth, challenged the lawfulness of the Secretary of State’s designation on a number of grounds. The Divisional Court dismissed all of the objectors’ various claims in two separate judgments. The Court of Appeal upheld the main parts of these judgments on appeal but allowed some of FoE and Plan B Earth’s grounds. It held the Secretary of State had acted unlawfully in failing to take the Paris Agreement into account when designating
the ANPS. Accordingly, the ANPS was of no legal effect.

The Secretary of State does not appeal the Court of Appeal’s decision. However, the company which owns Heathrow Airport, Heathrow Airport Ltd (“HAL”), is a party to the proceedings and has been granted permission to appeal to the Supreme Court. HAL has stated that it has already invested a large sum of money in promoting the NWR scheme and wishes to make an application for development consent to carry the project through.

JUDGMENT

The Supreme Court unanimously allows the appeal. Lord Hodge and Lord Sales give the main judgment (with which Lord Reed, Lady Black and Lord Leggatt agree).

REASONS FOR THE JUDGMENT

Government policy

The Secretary of State designated the ANPS under section 5(1) of the Planning Act 2008 (the “PA 2008”) [12]. Section 5(7) of the PA 2008 provides that national policy frameworks such as the ANPS must give reasons for the policy adopted. Section 5(8) states that these reasons must include an explanation of how that policy takes account of existing “Government policy” relating to the mitigation of and adaptation to climate change [25].

The Court rejects Plan B Earth’s argument that the reasons in the ANPS needed to refer to the Paris Agreement Targets in order to comply with section 5(8). The March 2016 statements of Andrea Leadsom MP and Amber Rudd MP and the formal ratification of the Paris Agreement do not mean that the Government’s commitment to the Paris Agreement constitutes “Government policy” in the sense in which that term is used in the statute [102].

The meaning of “Government policy” is a matter of interpretation of the statutory provision [101]. The phrase needs to be construed relatively narrowly in context to allow section 5(8) to operate sensibly. Otherwise it would create a “bear trap” for civil servants and ministers, who would have to consider all ministerial statements given in any context which might be characterised as “policy” in a broad sense [105].

The Court explains that “Government policy” in the context of section 5(8) refers to carefully formulated written statements of policy which have been cleared by the relevant departments on a Government-wide basis [105].  The epitome of “Government policy” is a formal written statement of established policy. The absolute minimum standard is a statement which is clear, unambiguous, and devoid of relevant qualification [106].

The Court does not consider that the statements of Andrea Leadsom MP and Amber Rudd MP meet this minimum standard. They were not clear, did not refer to the Paris Temperature Targets at all, and did not explain how the Paris Agreement goal of net zero emissions would be incorporated into UK law [106].

The lower courts were asked to consider whether international treaties which have been formally ratified but have not been incorporated into domestic law – such as the Paris Agreement – are “Government policy”.   FoE and Plan B Earth did not maintain that argument in the Supreme Court. As the Court explains, international treaties are binding only as a matter of international law and do not have an effect in domestic law. Treaty commitments continue whether or not a particular Government remains in office and do not
constitute a statement of “Government policy” for the purposes of domestic law [108].

Section 1 of the Climate Change Act 2008 (the “CCA 2008”) sets a national carbon target. Section 4 obliges the Government to establish carbon budgets for the UK [6]. These are already more demanding than the limits which the UK is currently obliged to have in place under the Paris Agreement [71]. The Court holds that, at the point the ANPS was designated in June 2018, there was no established “Government policy” on climate change beyond that already reflected in the CCA 2008 [111].

Sustainable development

Section 10(2) and (3) of the PA 2008 requires the Secretary of State to designate national policy frameworks with the aim of contributing to the achievement of sustainable development. He has to take into account the environmental, economic and social objectives that make up sustainable development. He must, in particular, have regard to the desirability of mitigating and adapting to climate change [26],[115].

The Court dismisses FoE’s argument that the Secretary of State breached this duty on the ground that he failed to have proper regard to the Paris Agreement when designating the ANPS. The evidence shows that the Secretary of State took the Paris Agreement into account and, to the extent that its obligations were already covered by the measures in the CCA 2008, ensured that these were incorporated into the ANPS framework [123]-[125]. Insofar as the Paris Agreement might in future require steps going beyond the current measures in the CCA 2008, the Secretary of State took it into account but decided that it was not necessary to give it further weight in the ANPS [126],[129]. The weight to be given to a particular consideration is a matter which falls within the discretion of the decision-maker, in this case the Secretary of State. His exercise of discretion is lawful unless the decision made is so unreasonable that no reasonable decision-maker would have made it [121]. That could not be said to be the case here [128]. The ANPS was carefully structured to ensure that when HAL applied for development consent to construct the runway, it would have to show at that stage that the development would be compatible with the up-to-date requirements under the Paris Agreement and the CCA 2008 measures as revised to take account of those
requirements [87]-[89], [123]-[124].

Post-2050 and non-CO₂ emissions

The Court dismisses FoE’s argument that the Secretary of State separately breached his section 10 duty by failing to have regard to, firstly, the effect of greenhouse gas emissions created by the NWR scheme after 2050 and, secondly, the effect of non-CO₂ emissions [151],[156],[166]. The UK’s policy in respect of the Paris Agreement’s global goals, including the post-2050 goal for greenhouse gas emissions to reach net zero, was in the course of development in June 2018 [154]. The Secretary of State did not act irrationally in deciding not to assess post-2050 emissions by reference to future policies which had yet to be formulated
[155]. The Secretary of State’s department was also still considering how to address the effect of non-CO₂ emissions in June 2018 [166]. The Court further holds that future applications for development consent regarding the NWR scheme will be assessed against the emissions targets and environmental policies in force at that later date rather than those set out in the ANPS [157], [166].

Environmental report

Section 5(3) of the PA 2008 requires the Secretary of State to produce an appraisal of sustainability in respect of frameworks such as the ANPS [28]. This is also required by EU law. Council Directive 2001/42/EC of 27 June 2001 (the “SEA Directive”) as transposed into domestic law by the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004/1633), requires the Secretary of State to produce an environmental report in respect of major plans and proposals such as the ANPS [28]. The report must include information about relevant environmental protection objectives established at the international, EU or domestic level and the way that they have been taken into account during the preparation of the plan as may reasonably be required (Article 5 and Annex I to the SEA Directive) [57],[58]. The appraisal of sustainability accompanying the ANPS was intended to meet both
the domestic and EU requirements for an appraisal of sustainability and environmental report respectively.

The Court dismisses the respondents’ complaint that the appraisal of sustainability accompanying the ANPS was defective because it did not refer to the Paris Agreement [139]. Emphasising that the purpose of these reports is to provide the basis for informed public consultation [137], it holds that an unduly legalistic approach should not be taken when assessing their adequacy [143]. Whether a report provides a sound and sufficient basis for public consultation is a matter that falls within the Secretary of State’s discretion and the exercise of this discretion will only be found unlawful if it is one that no reasonable
decision-maker would have made [144]. Were this discretion removed, public authorities might adopt an excessively defensive and counterproductive approach by including so much detail that the public would be unable to comment effectively, contrary to the object of the SEA Directive [146]. In this instance, the targets set out in the CCA 2008, which were referred to in the appraisal of sustainability, took the UK’s obligations under the Paris Agreement sufficiently into account [149]. The Court therefore upholds this ground of appeal as well [150].

References in square brackets are to paragraphs in the judgment

NOTE

This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document.  Judgments are public documents and are available at:
http://supremecourt.uk/decided-cases/index.html

https://www.supremecourt.uk/cases/docs/uksc-2020-0042-press-summary.pdf

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The full judgement (58 pages) is at

https://www.supremecourt.uk/cases/docs/uksc-2020-0042-judgment.pdf

 

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