Legal briefing on our challenge to government's climate plan

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At a glance

• Friends of the Earth, ClientEarth and Good Law Project (GLP) are taking the government to court for the second time on the basis of breach of the Climate Change Act 2008 (CCA). The substantive hearing, concerning the government’s economy-wide decarbonisation plan, was at the High Court on 20-22 February 2024 before Justice Sheldon, who has reserved his judgment.
• In an unprecedented intervention, Lord Deben, Conservative Peer and former Chair of the Climate Change Committee (CCC) provided a witness statement in support of Friends of the Earth’s case. 
• This challenge follows our landmark victory in July 2022 in relation to the government’s Net Zero Strategy (NZS), when the government was ordered to revise its climate plan owing to legal errors identified by the High Court. The Carbon Budget Delivery Plan (CBDP) was consequently adopted by the Secretary of State for Energy Security and Net Zero (then The Rt Hon Grant Shapps, and now The Rt Hon Claire Coutinho; the SoS) and published on 30 March 2023.
• At the CBDP court hearing, we argued that the Secretary of State had legally insufficient information to enable him to adopt it, and also that it lacked sufficient information to enable scrutiny by parliament (respectively, in breach of the duties under s.13 and s.14 of the CCA).  
• Friends of the Earth believes that once again, the new climate plan is both inadequate and unlawful. We maintain that the SoS had legally insufficient information to enable him to adopt it, and also that it did not contain sufficient information to enable scrutiny by Parliament (respectively, in breach of the duties under s.13 and s.14 of the CCA).  We therefore decided to take the government to court for a second time. 
• In the previous case, Justice Holgate concluded that “risk to delivery” to the achievement of the carbon reduction targets was an “obviously material consideration” which the Secretary of State must take into account.[1] Friends of the Earth argued at the CBDP hearing that there was a glaring lack of information (both in the information seen by the Secretary at the time, and in the CBDP itself when it was published) on the likelihood that the policies would actually be rolled out and achieve their intended emissions reductions. And despite this lack of information, the government’s assertion that the CBDP “will enable” carbon budgets to be met is based on the assumption of delivery in full: in essence, that everything goes to plan and all the intended emissions cuts are achieved.
• It is only through this case that key documents detailing the level of risk associated with individual policies have been released into the public domain (and there remains much that has not been disclosed). These documents reveal what the wording of the plan itself does not: that it is a very high-risk strategy. Some of these documents were not even put before the Secretary of State, let alone included in the CBDP itself. As with our previous NZS case, this evidences an ongoing and concerning lack of transparency by the government to parliament and the public. 

Background and context

Friends of the Earth was the organisation that originally devised the CCA over 15 years ago and led the “Big Ask” campaign to make it law. We believe that the successful implementation of the CCA’s provisions is of paramount importance in tackling the climate emergency, both for this country and across the world. The CCA was the first piece of legislation in any country to set a legally binding framework in domestic law towards a long-term carbon reduction target in 2050.

We are facing a climate crisis, and the government is not taking this seriously. For the first time, temperature rises across the world exceeded 1.5^oC for an entire year from February 2023 to January 2024. In the summer of 2022, this country experienced record-breaking temperatures of 40^oC, and an unprecedented number of wildfires. Extreme weather events like this will only increase in severity and frequency if urgent action is not taken to reduce carbon emissions.  

The previous court case

The NZS was published in October 2021 and was the government’s previous economy-wide decarbonisation plan for cutting UK carbon emissions in order to meet our upcoming carbon budgets. It was published following the adoption of the Sixth Carbon Budget (6CB), which covers the period 2033-2037 and requires the country’s carbon emissions to be limited to a maximum of 965 million tonnes of CO2e[2] in that period.

In July 2022, a landmark judgment was handed down by the High Court in relation to legal challenges brought by Friends of the Earth, ClientEarth and GLP. The High Court found that the government had breached its duties under s.13 and s.14 of the CCA when it adopted the NZS. The minister had adopted the NZS with legally insufficient information to enable him to conclude that the policies and proposals would enable the upcoming carbon budgets to be met. Also, the report itself to parliament lacked critical information which undermined the ability of parliament and the public to scrutinise it. In particular, the NZS lacked information on what emissions reductions the policies were expected to achieve. 

While the minister was told that the total emissions savings expected from the policies added up to c.95% of the emissions reductions needed to meet the 6CB, he was not provided with a breakdown of what emissions savings the individual policies were expected to deliver. Meanwhile, parliament was effectively kept in the dark, and was not informed that there was a 5% shortfall (amounting to approximately 75 million tonnes of CO2e), in what the quantified policies were expected to achieve. This shortfall only came out through the court case. Download Friend of the Earth’s legal briefing on that judgment.

The government was ordered to produce a revised strategy to correct the legal errors identified in the judgment. It had 9 months to do this, with a deadline of 31 March 2023.

The new Climate Plan

On 30 March 2023, the government published its revised climate plan, the CBDP. Unlike its predecessor, the CBDP does contain information on both the total emissions savings that its policies are predicted to achieve, and the breakdown of the contributions of individual policies (with the exception of the power sector, which has a group total only). As a result of the first court case, there was therefore some improvement in transparency, which was recognised by the CCC.

The CBDP asserts that the quantified policies will achieve 97% of the emissions savings necessary to meet the 6CB, and 92% of the emissions savings necessary to meet the UK’s Nationally Determined Contribution (NDC) [3]. The NDC is adopted under the Paris Agreement [4] rather than the CCA and requires a 68% reduction in emissions by 2030 as compared to the 1990 baseline. The large shortfall in terms of the NDC is particularly concerning, given that the deadline is in 6 years’ time.

Having carefully considered the CBDP and associated documents, Friends of the Earth’s firm view is that it is inadequate and still does not comply with the Secretary of State’ duties under the CCA. We therefore decided to challenge the government in court again. Details of our concerns over the policies in the CBDP are set out in an article by Mike Childs, our Head of Science and Policy, and in a report by Friends of the Earth. ClientEarth and GLP also decided to file cases, and the 3 NGOs have coordinated with each other throughout the proceedings.

The CCC's view

The CCC is the independent expert body appointed under the CCA to advise the UK on tackling climate change. In June 2022, the CCC’s Progress Report concluded that of the emissions savings needed to meet the 6CB, there were credible policies in place for 39% of those savings (p.100).

In June 2023, the CCC’s Progress Report welcomed the greater detail in the CBDP, which had come about owing to the previous NZS court case (p.13). It concluded that there was “some improvement” in prospects of meeting the fourth carbon budget (2023-2027). However, prospects for meeting the NDC and the 6CB had “worsened” (p.22) and there were credible policies in place for just 19% of the emissions savings required to meet the 6CB, so less than previously (p.97). In our previous NZS case, the High Court placed “considerable weight” on the CCC’s views when interpreting the duties  under the CCA.[5]

The Grounds

Friends of the Earth challenged the CBDP on the basis of 5 grounds. These built on the successful submissions we ran in the NZS case. Lord Deben’s witness statement, filed in reference to Friends of the Earth’s case, supported our arguments in several ways, as identified below.

Ground 1: A Breach of Section 13(1)

Under s.13(1) CCA, the “...Secretary of State must prepare such proposals and policies as the Secretary of State considers will enable the carbon budgets that have been set under this Act to be met” (emphasis added).  In the previous NZS case, Justice Holgate found that delivery risks are "obviously material" [6]  to this duty. In the current case Friends of the Earth argued before Justice Sheldon that the Secretary of State failed to consider information obviously material to the risk to delivery (ie, likelihood of achieving emissions cuts) of individual proposals and policies set out in the CBDP. This meant that the statutory duty has been breached. We argued that the Secretary of State was not provided with necessary information pertaining to confidence in delivery/delivery risks.

Risk assessments produced by government departments at the request of the Secretary of State’ department were not actually shown to the Secretary of State. These risk assessments included a categorisation of decarbonisation policies by a traffic light, or “RAG rating”, system of delivery confidence, from red (very low confidence) to green (very high confidence). The assessment produced by the Department for Environment Food & Rural Affairs (Defra) showed that it rated approximately half of its decarbonisation policies as red (very low confidence) or red/ amber (low confidence). That assessment (PDF) is the only departmental risk assessment disclosed by the Secretary of State in these proceedings, despite Friends of the Earth’s repeated requests for the disclosure of all the departmental risk assessments.

• The information that was provided to the Secretary of State on delivery risk to individual policies (including documents called “risk tables”) was incomplete and did not give an accurate impression of the level of risk associated with individual policies.
• It did not include the RAG ratings, and nor did it otherwise convey the RAG ratings’ assessment of delivery confidence. 
  No assessments of delivery risks relating to proposals and policies of the devolved administrations (in Scotland, Wales and Northern Ireland) were shown to the Secretary of State. 

Lord Deben's statement criticised the process by which the CBDP was adopted:

• Lord Deben highlighted that in contrast to past practice with other reports under the CCA, the government did not show the CCC the CBDP prior to publication, stating that it is “difficult to avoid the view” that the government did not want the CCC to examine it before it was published, which was “regrettable”.
• He stated that there was a lack of adequate information provided to the Secretary of State on risks that the plan would not deliver the legally required cuts in emissions and concluded that the information which was provided to the Secretary of State (but not included in the plan) was unclear.
• He expressed surprise that Defra’s RAG assessment, and those RAG ratings produced by other government departments, were not actually shown to the Secretary of State. Had they been, where “many of the policies and proposals were rated red or amber in terms of delivery risk”, Lord Deben’s view is that the Secretary of State “could not have concluded that the policies would enable the statutory targets to be met…it being clear that Defra itself had no confidence in that conclusion” (emphasis added).

Grounds 2 and 3: lack of contingency planning

The Secretary of State’s conclusion that the proposals and policies in the CBDP “will enable” the carbon budgets set under the CCA to be met for the purpose of section 13(1) CCA proceeded on the basis of delivery in full: that all the policies would both be rolled out and would achieve 100% of their intended emissions cuts. Lord Deben’s witness statement included some stinging criticism of this assumption: “…the first assumption in the government’s CBDP is that everything will go exactly as planned. That is not a satisfactory way to design a delivery programme. No one sensible would run a business or even their private life on the basis that everything will go according to plan. Serious people build in some contingency” (emphasis added).

Ground 4: Breach of Section 13(3) CCA

The s. 13(3) duty requires the Secretary of State to prepare proposals and policies for meeting carbon budgets, which “...taken as a whole must be such as to contribute to sustainable development” (emphasis added). However, the Secretary of State stated in the CBDP that its “...overall contribution to sustainable development is likely positive”[7] (emphasis added). Friends of the Earth argued that “likely” is a different and a lower threshold than “must”, which is what is required by the CCA.

In addition, Friends of the Earth believes that there is a real and significant risk that the NDC 2030 target will not be met by the CBDP, and this is heightened by the lack of specificity in how the 8% shortfall reported in the plan will be made up (this is leaving aside the issue of whether the CBDP’s policies will actually deliver 100% of their intended emissions savings). The NDC is the UK’s contribution to keeping within safe planetary boundaries, as informed by climate science and subsequently agreed by world leaders at the 2015 climate conference in Paris. Friends of the Earth argued that the Secretary of State lacked legally sufficient information to enable him to know whether the NDC (with a deadline 6 years from now) will actually be met by the proposals and policies. This is important for the s.13(3) duty, because a failure to meet the NDC risks compromising the ability of future generations to meet their own needs, and therefore undermines the core aspect of sustainable development. 

Ground 5: Breach of Section 14 CCA

Under this section the Secretary of State must lay a report before parliament setting out proposals and policies for meeting the current and future carbon budgets. It ensures parliament is clear about how the government intends to meet its obligations under the Act.

In our successful challenge of the NZS in 2022, Justice Holgate found that the s.14 report must include information that is obviously material to “the critical issue of risk to delivery of the carbon budgets”[8]. In the current case Friends of the Earth argued before Justice Sheldon that the Secretary of State has failed to comply with this duty in the following ways:

• The CBDP fails to include any information about the delivery confidence of individual proposals and policies, even that provided to and taken into account by the Secretary of State for s.13 purposes (i.e. the risk tables).  The CBDP contains only generic summaries of risk for each sector of the economy.
• The CBDP fails to include information about the delivery confidence in, or likelihood, of individual proposals and policies being rolled out and achieving their intended emissions cuts. Yet assessments of delivery confidence were provided by responsible government departments at the request of the Department for Energy Security and Net Zero (DESNZ), including RAG ratings at the level of individual policies. 
• The CBDP fails to include information on the delivery risks relating to devolved administrations’ individual proposals and policies. 
   

Client Earth and GLP

ClientEarth’s case focused on the government’s failure to have regard to considerations that are legally essential under s. 13 of the CCA, related to the risks of its plans not delivering the emissions savings required to meet the UK’s climate targets. ClientEarth also argues that the government’s assumption that the projected emissions savings from its policies will be delivered ‘in full’ was not rational. GLP’s case argued that the government has acted unlawfully and breached s.14 CCA by failing to include a proper assessment of the delivery risk associated with each of the policies and proposals in the CBDP.

Significance of this case

Friends of the Earth has taken this case because we believe that the new climate plan is dangerously inadequate, and the government has once again fallen short of its duties under the CCA. Our previous case showed that if the government breached its legal obligations, the CCA could be enforced through the courts. We do not believe that this CBDP will deliver the emissions savings needed to meet our upcoming budgets, or the UK’s 2030 target (the NDC). 

It is clear to us that the CBDP is incredibly high-risk, with reliance on technologies which are unproven at scale, such as carbon capture and storage. And the government’s prediction that the necessary emissions cuts will be achieved is premised on all these policies being delivered and achieving 100% of their intended carbon savings. In Lord Deben’s view, as set out in his evidence put before the court, that is simply not tenable, and we agree. As it is, Prime Minister Rishi Sunak scrapped certain decarbonisation policies in September 2023, which demonstrates the fallacy of the CBDP’s assumption.

It was only through this court case that critical information relating to the high-risk nature of the CBDP has become public. This is part of, in our view, a concerning trend of the government avoiding accountability to parliament and the public; a similar issue materialised in our previous challenge. This lack of accountability undermines the democratic process.
In relation to the CBDP, in our view the case has revealed that a peculiar filtering process was undertaken within government, involving several steps in which information on delivery confidence which was originally there was stripped away (see the key documents relating to the case). In consequence, the information that was eventually included in the published plan masked the high-risk nature of the policies and did not accord with the information in the original risk assessments produced by government departments. 

We discovered through the case that RAG ratings were prepared by officials across government departments at the request of the DESNZ. As above, these categorised policies on the likelihood that they would achieve their intended emissions cuts. These assessments were not published with the plan, and nor were they shown to the Secretary of State. The s.13 advice to the Secretary of State and the accompanying risk tables did not include any actual identification of the risk levels associated with individual policies. The sole exception to this, rather conveniently concerns the polices which had been assessed as “green”. The narrative descriptions in the risk tables for these policies include that they have “high delivery confidence”. However, the risk tables do not say that policies originally categorised as red, or red/amber have “very low delivery confidence” or “low delivery confidence”. The narrative descriptions for those policies include, in Friends of the Earth’s view, ambiguous wording such as “uncertain delivery risk” (the witness statements of Mike Childs and Niall Toru for Friends of the Earth explain our concerns in more detail). 

We believe that this shows that the Secretary of State lacked any understanding of the level of confidence/likelihood that individual policies would achieve their intended emissions cuts (other than in relation to high confidence policies; so the impression he had was actually skewed).

In addition, even the risk tables themselves (incomplete as they are, in our view) were not published with the plan. We also only learnt of them through the court case. They do detail important information like the barriers to the individual policies being rolled out (again, this information was not included in the CBDP) and were informed by the RAG risk assessments.

At the hearing, the government barrister said that the preceding strategy, the NZS, was plainly adopted in breach of the CCA, as the Secretary of State had insufficient information to adopt it. That’s interesting, and it is unfortunate with that in mind that at the time (less than 2 years ago) the Secretary of State deemed it appropriate to fight us tooth and nail in our challenge to the NZS. They went so far as to try to convince the court (unsuccessfully) that our whole claim was unarguable and should not even be granted permission to proceed. Given their advocate’s view of things now, it might be said that the Secretary of State’ previous approach in resisting our challenge to the NZS was hardly the best use of government resources. 
 

What do we hope to achieve?

We hope that the court will endorse our legal arguments and find that the government has again acted unlawfully, so that they have to produce a plan that does enable the urgent emissions cuts required. By taking this second case, we are holding the government’s feet to the fire. We are showing them, and whatever government is in place after the general election, that compliance with the CCA is not something that is optional, or something for which they can be let off the hook.

2023 saw unprecedented climate extremes, including enormous wildfires across Canada. For the first time, temperature rises across the world exceeded 1.5^oC for an entire year from February 2023 to January 2024. June 2023 was the hottest June on record in this country. We need to see urgent action by our government to address the climate crisis and to reduce the UK’s carbon emissions. But unfortunately, that is not what is happening. Of the emissions reductions needed to meet the 6CB, the assessment of the CCC is that there are currently credible policies in place for just 19%.

We have strong policy criticisms of the CBDP, many of which are shared by other organisations, including the CCC. Alongside the legal case, Friends of the Earth campaigners are working to raise awareness amongst the public and politicians of the government’s failure to enact policies that will achieve our carbon budgets and our 2030 NDC, and the profound negative impacts that this failure will have on the climate, energy bills, energy security and jobs.  Ultimately, Friends of the Earth believes that we urgently need a plan to achieve significant emissions reductions across all sectors of the economy and which will enable the UK to meet its climate targets.

Katie de Kauwe and Niall Toru, Lawyers at Friends of the Earth

Next steps and further information

• The rolled-up hearing was listed for 20-22 February 2024 at the High Court in the Royal Courts of Justice in London. Justice Sheldon has reserved his judgment. It is likely to be handed down in approximately 1-4 months’ time. 
• Friends of the Earth is represented in these proceedings by the same legal team that secured our victory in the NZS case: leading environmental barristers David Wolfe QC of Matrix Chambers, Catherine Dobson of 39 Essex Chambers and Nina Pindham of Cornerstone Barristers; Rowan Smith and Julia Eriksen at the law firm Leigh Day LLP; and Friends of the Earth’s own in-house legal specialists. 
   

For further information, please contact Friends of the Earth’s media team: [email protected] and 020 7566 1649
 

Notes

[1] R (oao Friends of the Earth Ltd & Others) v SoS BEIS [2022] EWHC 1841 (Admin) at paras. 204 and 254

[2] Carbon dioxide equivalent is a metric to compare emissions for different greenhouse gases, such as carbon dioxide, methane and nitrous oxide, on the basis of their global-warming potential. Glossary: Carbon dioxide equivalent - Statistics Explained (europa.eu)

[3] Carbon Budget Delivery Plan at paras 29 and 30.

[4] An international law treaty on climate change.

[5] R (oao Friends of the Earth Ltd & Others) v SoS BEIS [2022] EWHC 1841 (Admin) at para. 215

[6] Ibid at para. 204

[7] Carbon Budget Delivery Plan at p183

[8] Ibid at para. 254