Posted by William Upton KC and Noémi Byrd
How the Government’s Net Zero Review, its response to the CCC Progress Report, and its revised Net Zero Strategy required by the High Court, will interact remains to be seen.
On 26 September 2022 the Government announced a review of its approach to delivering Net Zero, “to ensure that it is pro-business and pro-growth”.
The reason for doing so is given as the “fundamentally changed” economic landscape of the UK – largely due to Russia’s invasion of Ukraine and the ensuing the carbon crisis – and the need to avoid placing “undue pressure” on businesses and consumers on the way to reaching Net Zero. The Net Zero Review’s findings are due to be submitted to the Secretary of State for BEIS before the end of this year.
The Government’s commitment to Net Zero emissions by 2050 is still in place (reflecting the statutory obligation in s.1 of the Climate Change Act 2008 – “CCA 2008”), but the route to get there is now under “independent” review. This Net Zero Review announcement comes less than a year after the publication of the Government’s Net Zero Strategy, which was successfully challenged earlier this year in R (Friends of the Earth) v SSBEIS  EWHC 1841 (Admin). Holgate J found that the Strategy was unclear in its assessment of the quantitative contributions to emissions reductions made by individual policies, and did not properly justify its reliance on unquantified policies to make up the predicted shortfall. In summary, the Secretary of State could not have been satisfied that the Strategy “will enable” the carbon budgets to be met, contrary to s.13 of the CCA 2008. A revised Strategy is due at the end of March 2023.
The Government’s emphasis on an “independent” review of its Strategy is interesting. The Climate Change Committee (CCC)’s statutory remit is similar to the aim of the review – to advise the Government on meeting the carbon budgets, including identifying sectors where there are particular opportunities to reduce emissions. The CCC’s statutory reports to Parliament have been critical of the Government’s progress, but it has not so far implied that the CCC lacks independence. This year’s report, much like last year’s, points out that the UK is good at setting targets but poor at implementation :
“Sharply rising fuel costs should have given added impetus to improving energy efficiency, yet the necessary programmes are not in place. We are still building new homes that do not meet minimum standards of efficiency and will require significant retrofitting. Not only are we waiting for the promised Future Homes Standard but there is as yet no sign of the changes in the planning system necessary to reflect Britain’s legal obligations for climate mitigation.”
Last week the Government deferred, by statutory instrument (2022/982), its obligation to respond to the CCC Progress Report until 31st March 2022 – the same deadline as for the revised Net Zero Strategy following the judicial review. How the Net Zero Review, the response to the CCC Progress Report, and the revised Net Zero Strategy will interact remains to be seen. Unless an unexpectedly radical change in the law happens in the interim, the Secretary of State will remain under a statutory obligation to meet the carbon budget(s). He has a wide “margin of appreciation” under ss 13 and 14 of the CCA 2008, (e.g. Friends of the Earth ) but if the Strategy remains insufficiently clear on how much of a reduction in carbon emissions can be expected from those policies which have a quantifiable impact, and why unquantifiable policy impacts are expected to make up any shortfall, then a further successful legal challenge is likely.
What continues to look very unlikely is a successful challenge to a particular policy or project on the grounds that it is carbon budget-buster, or otherwise not in line with the achievement of Net Zero. The difficulty of pursuing such a ground in planning cases is clear, as are the reasons why. As this year’s CCC report acknowledges, statutory carbon budgets and national climate policies have not, so far, made it more difficult to give consent for carbon-intensive development and infrastructure.
Echoing last year’s call for a Net Zero test in planning, the CCC’s report reiterates that “planning is a fundamental lever for local authorities to ensure that the long-term development of their communities is properly directed towards Net Zero”. In its view, the Levelling-up and Regeneration Bill (LURB) should aim to ensure that key government policy such as the National Planning Policy Framework should “make clear the priority that should be placed on sustainability objectives and how these interact with other requirements” with the aim of requiring all developments to be “built in a manner that ensures that the emissions they generated (both directly and indirectly) over their lifetimes are compatible with the Net Zero pathway”. The supporting guidance should also be adapted to make it easier to assess compatibility with Net Zero, and to enable planning decisions to be justified on that basis.
The LURB in its current form does not reflect the CCC’s recommendations. The climate change requirements for development plans go no further than those which already exist in s19(1A) of the Planning and Compulsory Purchase Act 2004 – that is, to include policies which are designed to secure that development and use of land “contribute towards the mitigation of and adaptation” climate change. Neither the quality nor the quantity of the expected contribution is indicated. This “duty” has a correspondingly negligible impact on Inspectors in the determination of applications and appeals. For example, in June 2022 Examining Inspectors for a 2,200 home garden village at Eynsham in Oxfordshire required removal of the requirement for proposals to demonstrate Net Zero development. Such “absolute requirements” were not considered to be consistent with national policy, or justified. The watered-down wording requires demonstration of an “ambitious approach” to the carbon impacts of development. This might strike anyone familiar with the Net Zero target duty and carbon budgets in the CCA 2008 as counterintuitive, even if legally sound. It is not difficult to understand why the CCC is calling for clear policy priorities and usable guidance. High-level strategic policies, like the revised Net Zero Strategy, are unlikely to fulfil that need.
Next week, we will address why no claim has yet succeeded on the basis that there has been a failure to address the overarching carbon reduction requirements set out in statute.
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