Background: NZS and Judicial Review
The NZS is part of the U.K. government’s implementation of the Paris Agreement under the United Nations Framework Convention on Climate Change (the “Paris Agreement”), where signatories have set aims based on “[h]olding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels.”2 In pursuit of this goal, each signatory pledged to prepare, communicate and maintain a greenhouse gas mitigation target called a nationally determined contribution (NDC).3 Under the Paris Agreement’s terms, NDC targets are to be communicated every five years and are to be accompanied by information on the domestic measures adopted to pursue them.4 Each successive NDC is to represent a progression beyond the previous target and reflect the highest possible five-year ambition.5
Against the backdrop of the Paris Agreement, the U.K. government amended the CCA 2008 on June 27, 2019, such that the Secretary of State for Business, Energy and Industrial Strategy (BEIS) became responsible for ensuring that “the net UK carbon account” for 2050 was at least 100 percent (rather than 80 percent) lower than the baseline in 1990 (the “Net Zero Target”).6 Under the amended CCA 2008, the Secretary of State is to set an amount for the net U.K. carbon account (the “Carbon Budget”) for successive five year periods (beginning with 2008) in order to achieve the Net Zero Target.7 Each Carbon Budget contains localized targets for its five-year time window and together should form a broader strategy for meeting the Net Zero Target.8
Under Section 13 CCA 2008, BEIS must prepare specific proposals and policies to support the relevant Carbon Budget. Under Section 14 CCA 2008, BEIS must also provide a report in support of its proposals and policies under Section 13 CCA 2008 for Parliamentary approval. The U.K. government received Parliamentary approvals for the first six Carbon Budgets (CB6), the latest of which (June 24, 2021) was supported by the NZS produced to Parliament on October 19, 2021, as a report under Section 14 of the CCA 2008.
Following the presentation of the NZS to Parliament, environmental groups (Friends of the Earth, ClientEarth and the Good Law Project) mounted a legal challenge, arguing that the NZS did not meet the required reporting standards under Sections 13 and 14 CCA 2008 by failing to (i) specify the time-scales over which the policies and proposals were to take effect, (ii) detail the contribution each policy or proposal would make to meeting CB6 and (iii) provide the qualitative analysis explaining how the proposals and policies would together meet CB6.9
The claimants further argued that the U.K. government’s interpretation of Sections 13 and 14 CCA 2008 when defending the NZS amounted to a breach of Section 3 of the Human Rights Act 2008 (“HRA 2008”), which requires primary and subordinate U.K. legislation to be read and given effect in a way compatible with the European Convention on Human Rights.10
Judgment
The High Court rejected the HRA 2008 argument11 but ruled that, as drafted, the NZS failed to comply with the requirements under Sections 13 and 14 CCA 2008. Under the reporting requirements of Section 14 CCA 2008, the High Court determined that the NZS lacked proper explanation or quantification of how the U.K. government’s plans would achieve CB6. To Justice Holgate, “the NZS did not go below national and sector levels to look at the contributions to emissions reductions made by individual policies (or by interacting policies) where assessed as being quantifiable.”12
The High Court further noted that a carbon shortfall in the NZS was unaccounted for in the report itself. Analysis of the NZS’s figures revealed that calculations used to quantify the impact of the policies’ emissions cuts only amounted to 95 percent of the reductions required for CB6, and that the report failed to explain how the 5 percent shortfall would be made up.13
Accordingly, the High Court ruled that the NZS materials provided to the Secretary of State and energy minister, Kwaisi Kwarteng and Greg Hands, were legally insufficient for them to be satisfied under Section 13 CCA 2008 that their proposals and policies would enable CB6 to be met, and that the ministers had thus signed-off on the NZS without having the legally required information to do so.14
The High Court emphasized how Section 14 CCA 2008 reports and their information requirements are needed to satisfy the public interest in transparency and to facilitate Parliamentary scrutiny and accountability.15 To ensure such transparency and to attain alignment with Sections 13 and 14 CCA 2008, the High Court deemed the existing NZS unlawful and ordered ministers to publish an updated strategy by the end of March 2023.16
Significance
Although the case is rightly considered a major ruling, readers are reminded that the judgment comes further to previous criticism levelled at the NZS from various quarters. In June, the Climate Change Committee concluded that “credible plans exist for just two fifths of the government’s required emissions reductions.” Similarly, the House of Lords Industry and Regulators Committee stated that the Net Zero Target was not matched by the policies in the NZS and that further clarity throughout was needed.
The recent High Court judgment reflects a growing trend in climate-related litigation, with both corporates and governments facing increasing pressure from activist groups, and highlights that the policies for achieving the Net Zero Target will be heavily scrutinized and the U.K. government held to account where such policies do not comply with statutory obligations set out under the CCA 2008.
The judgment should shine a light on the extent of the perceived mismatch between the U.K.’s Net Zero Target and the U.K.’s current progress and existing policy framework to achieve that goal and encourage greater specificity and quantification of emission reduction policies moving forwards.
1 See also the court summary, 18 July 22, linked here.
2 Article 2, Paris Agreement.
3 Article 4, Paris Agreement.
4 Ibid.
5 Ibid.
6 Section 1, CCA 2008.
7 Section 4, CCA 2008.
8 Ibid.
9 Paragraph 16, High Court Judgement.
10 Ibid.
11 Paragraph 261–275, High Court Judgement.
12 Paragraph 252, High Court Judgement.
13 Paragraph 253, High Court Judgment.
14 Paragraph 221, High Court Judgement
15 Paragraph 224, High Court Judgement.
16 Paragraph 241–8, High Court Judgment.
