Environmental Law News Update
July 6, 2021
In this latest Environmental Law News Update, William Upton QC and Noémi Byrd consider the countdown to Net Zero, the role of climate change in the Planning Bill reforms and why complaints to the Office of Environmental Protection already matter.
Counting down to Net Zero?
The Sixth Carbon Budget was brought into force on 24th June 2021. In line with the Climate Change Committee’s (CCC) advice, it places a cap on targeted emissions equating to 193MtCO2e annually between 2033 and 2037. In 2019 annual emissions stood at 522MtCO2e. The reduction needed is steep. The CCC’s annual report to Parliament on emissions reductions states the government’s problem plainly: “the willingness to set emissions targets of genuine ambition contrasts with a reluctance to implement the realistic policies necessary to achieve them”.
To date, no legal challenge relying on the 2050 target duty and the carbon budgets, or indeed the Secretary of State’s duty to prepare policies and proposals which he considers will enable the carbon budgets to be met (ss. 13-15 CCA), has succeeded. This is due principally to the extent of the Secretary of State’s discretion in how the target and budgets are to be met, as explained in R (Packham) v SST [2020] EWCA Civ 1004 at [87]:
“[…] the statutory and policy arrangements we have described, while providing a clear strategy for meeting carbon budgets and achieving the target of net zero emissions, leave the Government a good deal of latitude in the action it takes to attain those objectives […] “
The fate of recent challenges relying on the provisions of the CCA suggest that this latest, most ambitious, budget is unlikely to have a significant legal impact. For example, the absence of a requirement to assess quantitatively the GHG emissions from major energy infrastructure projects under the development consent regime, was confirmed by the Court of Appeal in R (ClientEarth) v SSBEIS [2021] EWCA Civ 43. The government has since agreed to review the Energy NPS following a separate legal challenge, but there is no clear indication that a quantitative assessment will be required in future.
In R (Finch) v Surrey County Council & Ors [2020] EWHC 3559 the assessment of GHG emissions against the carbon budget is directly in issue. The main argument that end-user emissions from drilled oil should be included in an environmental statement is innovative, and as the claimant acknowledges, represents “a difficult and uncertain exercise”. In separate but contingent ground, the claimant argues that estimate of the overall GHG emissions from the proposal should have been compared to a “metric” for carbon reduction, including the statutory carbon budgets. The “metric” argument was not explicitly addressed, as the principal ground was rejected. Permission to appeal has been granted.
The difficulty this lack of a metric poses in the planning context is illustrated by the grant of permission for a non-NSIP gas-fired power plant in East Devon last year. The Inspector found that the emissions would be “substantial”, yet there was “no way of meaningfully relating the resultant GHG emissions from the proposed development, either by itself, or cumulatively with other similar schemes, quantitatively with the national 2050 outcome duty or its associated five-yearly budgets”.
Nevertheless, there may be a gradual shift towards making the numbers count. In Transport Action Network’s (TAN) current challenge to the second Road Investment Strategy (RIS2) ([2021] EWHC 568 (Admin)), TAN argues that the Secretary of State erred in law by failing to take account of the 2050 target and the carbon budgets in exercising its powers under the Infrastructure Act 2015, and has obtained permission to adduce expert evidence on alleged inaccuracies in the government’s calculations. The court might (if the claim fails) be required to reject explicitly the argument that a project likely to undermine a “legally binding” carbon budget is unlawful. If that happens against the backdrop of COP26, the law and the United Kingdom’s ‘climate leadership’ will certainly look as if they are pulling in different directions.
A longer consideration of this question about Net Zero is discussed in Noemi’s further article in our Climate Change Blog, including how the courts have considered it in the recent ClientEarth, Elliott-Smith, Finch and TAN cases.
Climate change and the Planning Bill reforms
In its 2021 Report to Parliament on the Progress in reducing emissions, the Climate Change Committee has emphasised that climate change “must be a key consideration in the government’s planning reforms”. Whilst there have been some actions in response to previous assessments, notably in tackling flooding and water scarcity, the CCC consider that overall progress in planning and delivering adaptation is not keeping up with the increasing risks. In its view, the UK is less prepared for the changing climate now than it was when the previous risk assessment was published five years ago. In an echo of some of its recent pronouncements, it has noted that decisions on road building, planning, fossil fuel production and expansion of waste incineration are not only potentially incompatible with the overall need to reduce emissions but also send mixed messages and could undermine public buy-in to the Net Zero transition. It has recommended implementation of a ‘Net Zero Test’ to ensure that all Government policy decisions are compatible with the legislated emissions targets, and that amendments should be made to the Planning Bill to ensure that developments and infrastructure are compliant with Net Zero and appropriately resilient to climate change.
Certainly, the broad provisions currently in the Planning Act 2008 and in the Infrastructure Act 2015 that require consideration to be given to government policy on climate change, or the effect of a project on the environment, would not go far enough to achieve what is being recommended. Political realities will no doubt determine what appears in the final draft of the Planning Bill. But we will have to wait a while to see what is produced. The government has not followed the CCC’s recommendation and included an explicit responsibility for sustainability in the remit of the new building safety regulator in the Building Safety Bill, published this week. This new Bill talks about the safety of people in or about buildings in relation to risks arising from buildings, and about improving the technical standard of buildings, but remains silent about climate change mitigation and adaptation.
Why complaints to the Office of Environmental Protection already matter
The announcement that the Interim OEP commenced its work on 1st July 2021 may not have caused many immediate ripples in the news. There is a fair amount of preparatory work and staff recruitment for them to do, in readiness for being able to operate on Day One after the relevant sections of the Environment Act come into force. They have provided their own advice to Defra about the draft environmental principles policy statement, following a Ministerial request. One job that they have also ticked off the list is that they have a logo.
One immediate point to highlight is that they say that the interim Office is open to receiving complaints. A complaint can be made by members of the public if they think that a “public authority” has broken “environmental law” (using the definitions in the Bill), and it is a free service. Two examples that the OEP website specifically identifies is that a public authority may have failed to carry out an environmental impact assessment, or failed to exercise a function it has – for instance, when it applies licensing standards that are less rigorous than the law demands.
Given that part of the role of the OEP is to fill the gap left by the removal of the ability to complain to the European Commission, this is a timely reminder that the delay in setting up the OEP does not represent an enforcement holiday. Indeed, the OEP website trumpets the fact that anyone can complain about an event that has happened “at any point in time”, and the Bill does allow the OEP to waive the time limits “if it considers that there are exceptional reasons for doing so”. This has yet to be tested, but making a complaint now should assist in showing that there is good reason to extend the time limit. Otherwise, according to the Environment Bill, complaints should normally be submitted within one year after you say the environmental law was last broken, or three months since the public authority’s internal complaints procedure has been exhausted (and that complaints system must be used, if there is one).
The one note of caution is that the Interim OEP still only has a limited role. It will receive and validate complaints about public authorities, but it will not be making any final decisions about them. The complaints will still need to be considered by the OEP once it is established as an independent body. Indeed, the predecessor body within Defra, the Interim Environmental Governance Secretariat (IEGS) had to take the same approach. As stated in its report on its first 3 months (from January and March 2021), it received 13 complaints. Only 3 have been closed, as one was not about environmental law, one was about the activity of a private company, and one was about a devolved matter. The other 10 are awaiting the OEP’s determination. But at least they are in the queue for consideration by the OEP, together with a preliminary assessment.
Interestingly, the interim OEP acknowledges there is the potential for a conflict of interest given that they are not yet independent of government. After all, the interim Office is still staffed by a team within Defra, with input from the relevant Northern Irish office, DAERA. They have at least stated that all of the complaints that they receive, together with their initial assessment of them, will be stored separately.
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