Landmark High Court judgment finds government’s climate plan ‘unlawful’ – again

In today’s landmark High Court judgment [1], which followed legal challenges by Friends of the Earth, ClientEarth and Good Law Project, the government was once again found to have breached the Climate Change Act [2] when it adopted the Carbon Budget Delivery Plan [3]. The Secretary of State is expected to now have to draw up a revised plan within 12 months. This must ensure that the UK achieves its legally binding carbon budgets, and its pledge to cut emissions by over two thirds by 2030, both of which the government is off track to meet [4].

In today’s judgment the High Court:

• Agreed with ClientEarth and Friends of the Earth that the Secretary of State was given “incomplete” information about the likelihood that proposed policies would achieve their intended emissions cuts. This breached section 13 of the Climate Change Act which requires the Secretary of State to adopt plans and proposals that she considers will enable upcoming carbon budgets to be delivered. 
• Agreed with ClientEarth and Friends of the Earth that the plan’s central assumption that all its policies would achieve 100% of their intended emissions cuts was wrong. The judge said the Secretary of State had acted irrationally, and on the basis of an incorrect understanding of the facts. 
• Agreed with ClientEarth that the emissions savings relied on by the Secretary of State needed to be adjusted to reflect any expected shortfalls in savings due to risks and barriers to delivery. In other words, the quantified savings for each policy and proposal must represent what officials realistically expect to be achieved rather than just aspirational targets. 
• Agreed with Friends of the Earth that the government had breached its duty on sustainable development. This duty requires the Secretary of State to be satisfied that the policies adopted “must contribute to sustainable development”. The Secretary of State had applied a test of “likely” which the court held was a lower threshold than required under the CCA.

As a result of the 3 legal challenges, key information on the risk associated with the policies in the plan has now been released to the public and Parliament, which make clear that the plan is high-risk and reckless.

The government refused to publish documents known as risk tables, but Good Law Project and Friends of the Earth published them in full after they were mentioned in court so they can now be scrutinised by Parliament, experts, journalists and the public [5].

The Carbon Budget Delivery Plan [3] is the government’s strategy for meeting legally binding carbon budgets (a cap on the amount of greenhouse gases emitted in the UK over a five-year period) – as well as meeting the UK government’s international pledge to cut greenhouse gas emissions by over two thirds (68%) by 2030.

However, progress on meeting both the UK’s domestic climate targets, and its 2030 international goal is currently way off track and these crucial commitments are unlikely to be met based on current government policies.  

The 3 organisations are calling for a new plan that ensures the UK’s national and international climate targets are met and that the huge economic benefits that building a greener future will bring are fairly shared across society.

This is the second time the government’s climate action plan has breached the Climate Change Act. Its previous plan, the Net Zero Strategy, was also ruled to be unlawful following legal challenges by the same three organisations in July 2022 [6].

The Climate Change Committee’s assessment last year was that the government only has credible policies in place for under 20% of the emissions cuts needed to meet the sixth carbon budget. In an unprecedented intervention, former Climate Change Committee chair, Lord Deben, provided a powerful written statement in support of Friends of the Earth’s legal challenge [7]. His evidence is referred to in the judgment and was highly critical of the process by which the CBDP was adopted - including the underlying assumption that everything would go to plan and all the policies would deliver their intended carbon cuts in full.

The court case also revealed that by its own assessment of its policies, government officials had “low/very low confidence” in their achievement of around half of the emissions reductions required to meet the sixth carbon budget and the 2030 pledge [8].

Images of a Friends of the Earth photo opportunity that took place outside the High Court today will be available from the Friends of the Earth press office.

Friends of the Earth lawyer, Katie de Kauwe, said: 

“This is another embarrassing defeat for the government and its reckless and inadequate climate plans.

“It shows the strength of the Climate Change Act – brought into force after a successful campaign led by Friends of the Earth and the backing of an overwhelming majority of MPs – to hold the government of the day to account for meeting its legal requirements to cut emissions.

“We’ve all been badly let down by a government that’s failed, not once but twice, to deliver a climate plan that ensures both our legally binding national targets and our international commitment to cut emissions by over two thirds by 2030 are met.

“Cutting emissions isn’t only essential to avert the worst of climate breakdown, it will create long term jobs in green industries of the future, boost energy security, bring down our bills and end our reliance on costly fossil fuels.

"We urgently need a credible and lawful new action plan that puts our climate goals back on track and ensures we all benefit from a fair transition to a sustainable future. Meeting our domestic and international carbon reduction targets must be a top priority for whichever party wins the next general election.” 

ClientEarth Senior Lawyer Sam Hunter Jones said:

“The courts have now told the UK government not once, but twice, that its climate strategy is not fit for purpose. This time the court made it emphatically clear: the government cannot just cross its fingers and hope for high-risk technologies and uncertain policies to plug the huge gaps in its plans.

“No more pie in the sky – this judgment means the government must now take credible action to address the climate crisis with a plan that can actually be trusted to deliver and with numbers that can be relied on. 

“The good news is that with crisis comes opportunity. As its own expert advisors have repeatedly said, the government has a golden opportunity to reduce emissions with actions that will also create jobs, improve services and bring down household bills.

“Actions such as public transport investment and a home insulation roll-out will create new jobs, lower costs and provide energy security now and for generations to come – as well as putting us on track to meet our legal targets.”  

Emma Dearnaley, Legal Director of Good Law Project, said:

“This is yet another climate failure from this government - it's the second time in two years that its flagship net zero strategy has been found to be unlawful by the court because of our joint legal action.

"This builds upon our earlier success in the legal challenge, where we released key information that Ministers tried to keep under lock and key, revealing significant risks of their climate policies not meeting vital targets.

“This welcome ruling shows that the law is our best - and often last - line of defence against a government that is failing to act as it must to address the climate emergency. And we will continue to use it to push for accountability and greater ambition”.

Contacts:

• Friends of the Earth press office on 020 7566 1649 or email [email protected].
• ClientEarth press office on 0303 050 5959 or [email protected]/[email protected]
• Good Law Project press office on 07907 296156 or [email protected]
   

Notes

1. A full explanation of today’s High Court ruling can be found in this Friends of the Earth legal briefing. 
2. The Climate Change Act was passed in 2008 following the successful Big Ask campaign led by Friends of the Earth. Under the act, the government has to adopt a series of Carbon Budgets (a cap on the amount of greenhouse gases emitted in the UK over a five-year period). These legally binding carbon budgets form ‘stepping stones’ to ensure that the long-term 2050 target (which has been set at net zero under the act) is actually met. The act also established the setting up of the Climate Change Committee to advise the government on climate change, including its carbon targets.
3. The Carbon Budget Delivery Plan was published in March 2023, and purported to set out government policies that enable Carbon Budgets 4-6 to be met, and the 2030 international target The plan was published after the High Court ruled that the previous plan was unlawful. 
4. The Climate Change Committee, the government’s independent adviser on climate, found in June last year that there were only credible plans for less than a fifth of the emissions cuts needed to meet the UK’s Sixth Carbon Budget, which starts in 2033. And in December Friends of the Earth analysis revealed that prime minister Rishi Sunak’s repeated pledge to honour a key international climate commitment is veering dangerously off track and the emissions gap has grown enormously under his leadership. 
5. Government’s own assessments reveal big risks to climate plans.
6. Lord Deben intervenes in climate High Court legal challenge.
7. Lord Deben: ‘Why I’m backing court action against the government’s weak climate strategy’. 
8. Bar Chart from a November 2022 briefing to the Secretary of State, disclosed owing to the court case. This shows the level of confidence that government officials had in the policy package for achieving our upcoming carbon reduction targets. CB = carbon budget. NDC = nationally determined contribution, meaning our international law target to reduce emissions by 68% by 2030.

1. Friends of the Earth was represented in this case by David Wolfe KC of Matrix Chambers, Catherine Dobson of 39 Essex Chambers and Nina Pindham of Cornerstone Barristers and by Rowan Smith and Julia Eriksen at the law firm Leigh Day. 
2. Good Law Project was represented in this case by Good Law Practice and Peter Lockley at 11KBW
3. ClientEarth was represented in this case by Jessica Simor KC and Emma Foubister of Matrix Chambers