In a significant case against the Government’s climate policy, Friends of the Earth, ClientEarth and Good Law Project joined forces to challenge the Carbon Budget Delivery Plan

Friends of the Earth, ClientEarth and Good Law Project (the Claimants) first took the Government to court in 2022, challenging its Climate Action Plan (CAP).  That case was successful, and the Court found that the Government had breached the Climate Change Act 2008 (the Act) and ordered a revision of the CAP. The Government published the revised plan, now known as the Carbon Budget Delivery Plan (CBDP) in March 2023. The Claimants issued further proceedings, and on 3 May 2024, the High Court again found against the Government.

The CBDP sets out the economy-wide package of proposals and policies which the Government believes will meet the delivery of Carbon Budgets 4, 5 and 6 (each a 5-year cap on carbon emissions which may be emitted to ensure we hit Net Zero, for 2023-2027, 2028-2032 and 2033-2037 respectively). The Climate Change Committee, the Government's independent advisers on climate risks, found that the plans would cut less than a fifth of emissions necessary to reduce emissions to the required levels by 2033 (at the beginning of the sixth Carbon Budget). The Claimants argued that the CBDP, like the CAP, also breached the CCA 2008, as it was based on a number of assumptions that were irrational, most notably by assuming that all the listed proposals and policies in the CBDP would be delivered in full.  

In his judgment of 3 May 2024, Sheldon J found that the Claimants were successful on four of the five arguments raised against the Government.

The legal arguments

Ground 1: breach of s. 13(1) of the CCA 2008

• It was argued that the Government had acted unlawfully due to its failure to properly consider the real risk of non-delivery of its policies. It was argued that there was not a legally sufficient basis to conclude that the carbon budgets would be met. 

Grounds 2 and 3: failure to plan for contingencies

• It was alleged that the CBDP had erroneously made assumptions that the policies would be delivered in full, which was irrational due to the difficulties in delivering the proposals.

Ground 4: breach of s.13(3) CCA 2008

• Further, s.13(3) CCA 2008 requires that policies and proposals should, as a whole, contribute to sustainable development: it was claimed that the policies relied upon by the Government in the CBDP failed to meet this test.  

Ground 5: breach of s.14 CCA 2008

• s.14 CCA 2008 requires the Government to produce a report to inform Parliament and the public as to how its proposals and policies will enable the carbon budgets to be met. It was argued that the Government had failed to comply with s.14 CCA 2008 by not including information which was “obviously material” to the critical issue of risk in the delivery of the carbon budgets. It was specifically argued that there was insufficient detail surrounding the published policies.

Sheldon J found in favour of the Claimants on Grounds 1-4.  In relation to Grounds 1-3, he held that the assumption of the Secretary of State that all the proposed policies would be delivered in full was flawed. Sheldon J concluded that the Secretary of State did not have the information necessary to find that the proposed policies would be delivered as stated in full.  

In relation to Ground 4, Sheldon J found that the CBDP itself referred only to the various policies being “likely” to contribute to sustainable development, which he considered was not sufficient to meet the stringent requirements of s.13(3) CCA 2008.

Ground 5, whilst arguable, was not successful. Sheldon J held that despite the CBDP’s other failures, it did not need to include specific risk information on individual policies: using a proxy term and accompanying narratives, such as “uncertain delivery risk”, would be sufficient. 

Takeaways

In many cases to date, claimants have not been successful in their legal challenges to progress action on climate change (see our reports on ClientEarth fails in request for judicial review of the FCA's approval of an IPO for new oil and gas, Suzanne Padmore (burges-salmon.com) and ESG litigation: Court of Appeal dismisses claim against corporate trustee of a pension scheme, Kate Granville Smith (burges-salmon.com). This decision will be applauded by the Claimants, although arguably had an easier course to victory as it is challenging the government’s plan to meet carbon budgets, which it is required to make under specific legislation. Other cases need to rely on legislation or regulatory frameworks which are not specifically climate focussed (e.g. the FCA's enforcement of the Prospectus Regulation or statutory director duties in the Companies Act 2006) so may continue to face additional hurdles to success. 

This article was written by Sasha Anisman, a trainee solicitor at Burges Salmon LLP.