Transport Action Network Ltd, R (On the Application Of) v Secretary of State for Transport
[2021] EWHC 2095 (Admin)
This case was a challenge by judicial review to the decision by the Secretary of State for Transport (“SST”) to set the “Road Investment Strategy 2: 2020-2025” (“RIS2”). The case was brought by TAN, a not-for-profit company, that campaigns for “more sustainable transport.” Section 3(5) of the Infrastructure Act 2015 requires the SST, when setting a road investment strategy, to: “have regard, in particular, to the effect of the strategy on (a) the environment”. To succeed, TAN needed to show that the decision was irrational; in other words, a decision which was beyond the range of rational responses to a given set of circumstances or information, or one which was based upon flawed logic. TAN said that the SST did not comply with that obligation, failing to take into account the effect of the strategy on achieving amongst other things:
(i) the objective of the Paris Agreement for State Parties to reach peaking in green-house gas (“GHG”) emissions as soon as possible and to achieve “rapid reductions” thereafter in accordance with best available science; and
(ii) the net zero target for the UK in 2050 contained in s.1 of the Climate Change Act 2008 (CCA 2008).
The Paris Agreement, adopted on 12 December 2015 and ratified by the UK on 17 November 2016, provided that countries should hold the increase in global average temperature to: “well below 2ºC above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5ºC above pre-industrial levels”. Mr Justice Holgate noted that the Paris Agreement did not impose an obligation on any state to adopt a binding domestic target to ensure that the Agreement objectives were met. The specific legal obligation imposed was to meet any target communicated by the state in question. In order to reflect the change in temperature target set by the Paris Agreement, the CCA 2008 was amended to read: “(1) It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 100% lower than the 1990 baseline.”
In short, Article 4.1 of the Paris Agreement seeks to achieve net zero globally during the second half of the twenty-first century and the UK committed itself to achieving that target by 2050. Mr Justice Holgate noted that:
Article 4.1 of the Paris Agreement acknowledges that some human activities will always generate GHG. Other actions can remove GHG from the atmosphere, such as the planting of trees and carbon capture and storage. The long-term goal of the Agreement is a balance between anthropogenic sources of GHG emissions and the removal of such gases by ‘sinks’. That in effect is what is meant by net zero.”
The Judge also referred to the case of R (Friends of the Earth) v Heathrow Airport [2020] UKSC 52 where the Supreme Court held that: “the Paris Agreement did not impose an obligation on any state to adopt a binding domestic target to ensure that the objectives of the Agreement were met”. This meant that the Paris Agreement was not to be considered an obviously material consideration and so the SST had had a discretion as to whether or not to take it into account. In fact, the Judge said that the net zero target had “plainly” been taken into account in the setting of the RIS 2. The legislation required that the SST set an investment strategy to have in regard to its effect on the environment, without any specific reference to climate change.
The real issue for the Judge raised by this challenge was whether the SST failed to take into account implications for the net zero target in s.1 of the CCA 2008 and carbon budgets leading towards that target. Were these obviously material considerations to which he was legally obliged to have regard. The Judge held that the SST would have known of challenges and difficulties facing the road transport sector regarding climate change, and also the: “policy commitment to reduce GHG emissions in the transport sector overall ‘further, faster’”. What mattered here was that the SST was considering the adoption of a national policy at a high strategic level for the purpose of public investment. He was advised of the impact of the programme on the net zero targets but that did not mean that the SST needed to be shown the supporting numerical and other analyses. The Judge did note that:
“Some people might think that it would have been better if the SST had been supplied with at least some of that analysis and that that would not have involved overburdening the Minister. However, this was not the test for a public law challenge.”
It is likely that there are going to be an increasing number of court cases relating to net zero and other environmental concerns, some of which will be of more direct relevance to the construction industry, and Dispatch will continue to keep an eye on these. For example, on 21 July, construction minister, Anne-Marie Trevelyan, noted that:
“It’s likely that, going forward, government tenders will place greater emphasis on climate change. We have made it very clear that whole-life value rather than upfront cost is key, and carbon impact is a critical element in assessing broader value.”
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