UK Court puts a halt to Heathrow runway expansion project, on climate grounds
In a significant victory for climate activists, the Court of Appeal in London has found that the UK government’s failure to take into account ‘its own firm policy commitments on climate change under the Paris Agreement’ was ‘legally fatal’ to the decision to add a third runway to Heathrow airport. Whilst the Court did not determine that the construction of the third Heathrow runway would be incompatible with the UK’s commitments under the Paris Agreement, the decision does clearly indicate that for all future nationally significant infrastructure projects, the UK government must take account of the Paris Agreement and consider whether the project is consistent with those commitments.
See our summary of the case here:
R (Friends of The Earth) v. Secretary of State for Transport and Others ([2020] EWCA Civ 214)
On 27 February 2020 the Court of Appeal in London ruled that the failure of the UK government to take into account ‘its own firm policy commitments on climate change under the Paris Agreement’ was ‘legally fatal’ to the decision to add a third runway to Heathrow airport.
The expansion of Heathrow has been vociferously opposed by environmental activists on the grounds that it will lead to around 700 extra flights per day, greatly increasing greenhouse gas emissions. The appeal was brought by several local authorities, the Mayor of London, and the environmental groups Greenpeace, Friends of the Earth and Plan B Earth.
The critical question before the court was whether the government’s ‘Airports National Policy Statement’ (ANPS), which supported the expansion of Heathrow, had been lawfully produced [para. 2].
Under Section 5 (7) and (8) of the Planning Act 2008, policy statements for nationally significant infrastructure projects must give reasons for the policy they set out and include an explanation of how the policy ‘takes account of Government policy relating to the mitigation of, and adaptation to, climate change’ [para. 38].
The Paris Agreement had not been taken into consideration. As such, one of the key questions that the Court had to answer was whether the Government’s commitment to the Paris Agreement could be considered government policy on climate change, which the Secretary of State was required to take into account [para. 222].
In answering in the affirmative, the Court placed weight on ‘the solemn act of the United Kingdom’s ratification of that international agreement’ as well as a number of ‘firm statements re-iterating Government policy of adherence to the Paris Agreement by relevant Ministers.’ [para. 228].
Given the dualist nature of the English legal system, ratification of international treaties such as the Paris Agreement does not change domestic law. The judgement means that the executive must comply with the will of the UK Parliament, as expressed in the Planning Act, to have government climate policy taken into account. [230]
The Court concluded that ‘the Paris Agreement ought to have been taken into account by the Secretary of State in the preparation of the ANPS, but was not’ [para. 283].
Whilst this decision does not mean that the third Heathrow runway is incompatible with commitments under the Paris Agreement, the national airport policy statement will have no legal effect until the Secretary of State reconsiders it in accordance with the requirement to take climate policy, including the Paris Agreement, into account [para. 280].
Grant Shapps, the transport secretary, confirmed that the government will not appeal against the ruling. Boris Johnston, the Prime Minister, infamously commented in 2015 that he would ‘lie down in front of those bulldozers and stop the construction’ of a third runway at Heathrow.
As a result of this decision, the Paris Agreement will need to be considered whenever a UK National Policy Statement is created or reviewed. This has significant ramifications for future infrastructure policy-making, which will need to factor in an assessment of consistency with the Paris Agreement and the UK’s targets and goals under that Agreement.
Will Rundle, head of legal at Friends of the Earth said that: ‘This judgement 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.’
Heathrow Airport have confirmed that they will challenge the decision in the Supreme Court.
See the court’s summary of the judgement here.
Summary by: Tom Bagshaw, Global Initiative for Economic, Social and Cultural Rights