This article has been written by Ishaan Banerjee, studying in Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University. This article consists of an analysis of the recent United Kingdom ruling on the construction of a runway at the Heathrow Airport wherein, for the first time, the Paris Agreement has been taken in consideration while giving a judgment.
The environment is in deep peril. Temperatures worldwide have been on a rise, with Europe seeing record-breaking temperatures last year. In February 2020, Seymour Island of Antarctica exceeded 20 degrees for the first time, with the continent itself recording a reading of 18.3 degrees.
However, there certainly have been things which give us hope to face climate change. Recently, in February 2020, Britain’s Court of Appeals passed a landmark ruling, which is said to be the first ruling that can be said to be influenced by climate change and the Paris Agreement. The ruling has been celebrated by activists all over the world, signaling a start by which law can enforce climate action. However, it remains to be seen whether the ruling will affect legal thinking around the world and what would be the consequences. This article would explore the background of this ruling, while looking into the reasons which has made it a landmark judgment.
What is the Paris Agreement?
On December 12, 2015, 195 nations came to a consensus on combating climate change and thus the Paris Agreement was formed after two weeks of intense negotiations. This was seen as a major success in framing a policy aimed at taking climate action. The Agreement not only laid down guidelines for combating climate change, but also laid down guidelines for adaptation measures. The main aim, however, is to limit emissions such that the average global temperature rise is kept below 2 degrees Celsius above pre industrial levels (time periods which serve as reference points or baselines to compare the temperature rise and determine whether the temperature rise is in excess or not) but measures have to be taken to try to keep the temperature below 1.5 degrees Celsius above pre industrial levels;all this has to be done within 2050.
The Agreement has been important in the sense that it is a historic move on the part of nations, wherein they have collaborated, and understood one another’s needs and perspectives. The provisions of the Agreement also display high ambition, evident through the provisions regarding adaptation measures, creation of finance channels, and technological support to developing and vulnerable countries to help combat climate change. Further, each nation has been given the choice of setting up their own climate action goals, also known as nationally determined contributions or NDCs. A transparency framework for analysing and monitoring nations’ NDCs has also been set up.
A history of the UK’s position on climate change
The United Kingdom (UK) has been a major emitter of carbon. In 2017, it produced a staggering 464 million tonnes of greenhouse gas (GHGs) emissions. However, the UK has been taking active steps to mitigate and combat climate change. People have pointed out that it is not enough, but considering the lack of awareness and strict action on climate change, and the fact that the UK is one of the developed and major markets of the world, its efforts must be applauded.
Climate action in the UK began with the Climate Change Programme, launched in November 2000, in response to its agreed obligations under the 1992 United Nations Conference on Environment & Development. The original aims under this Programme were to limit not only greenhouse gas emissions to 12.5% from 1990 levels, but also to cut carbon dioxide emissions by 20% from 1990 levels by 2010. In 2000, it was already forecast that the UK would be able to reach its target of cutting carbon emissions by 15%.
This Programme was further bolstered by the legislations and committees introduced by the government.
Climate Change Act, 2008
The UK had earlier passed The Climate Change and Sustainable Energy Act, 2006, which focused on increasing usage of heat and electricity generation installations, thus reducing dependence on fossil fuels. However, the major piece of legislation was The Climate Change Act, 2008. This was the first Act in the world, which was legally binding regarding the commitment of the government to limit GHG emissions. This Act imposes the duty on the Secretary of State to ensure that the net UK emissions of all six greenhouse gases, as stipulated under the Kyoto Protocol, would be cut by at least 80% in 2050. This cut would be with regard to the 1990 baseline.The UK gained success on this front, with emissions being recorded 44% below 1990 levels in 2018. It also met the needs of the first two carbon budgets (emission limits set to be achieved over a time period) and is on track to meet the third carbon budget.
In May 2019, the Committee on Climate Change recommended a new emissions goal for the UK, wherein the target would be to reach net-zero GHG emissions by 2050. The Committee stated that with the known available technologies, the target could very well be achieved, however, the government would have to formulate strict policies and ensure implementation. This makes the United Kingdom the first major economy and developed nation in the world, to set a target of net zero emissions by 2050, which proves the fact that the UK is intent on fighting climate change through policy and law.
Specific commitments of the UK under the Paris Agreement
Other than the general commitments of all nations under the Agreement, like limiting the temperature rise to less than 2 degrees Celsius etc, the UK has some specific commitments that it shares along with the European Union (EU). In 2015, the EU states agreed to limit emissions to at least 40% below 1990 levels, by 2030. Other targets have also been set, such as-
- Achieving 20% energy efficiency improvement
- Achieving 20% share of renewables in energy consumption
- Achieving a 20% reduction in emission reduction relative to 1990
- Setting up of carbon budgets
Now, there is doubt whether the UK would still keep these targets in sight since it has left the EU. It is imperative that it not stop with the setting of affirmative climate action goals.
However, the Committee on Climate Change has repeatedly warned that the actions of the UK are still not enough; it may be compatible with a 3 degree rise in the temperature, but not a 2 degree one. Added to this, the actions of the new government under Boris Johnson, who has made plans for several industrial projects, while speaking about the need for climate action, has left people insecure and doubtful.
What is the Heathrow airport ruling?
In the case of R(Friends of the Earth) v. Secretary of State for Transport & Ors., in the judgment given on 27th February 2020, the Court of Appeals ruled that the plans for construction of a third runway at the Heathrow Airport were illegal since the plan was in contravention to the United Kingdom’s commitments under the Paris Agreement.
Under the government’s Airports National Policy Statement, the plans for a third runway were passed by the MPs by a majority of votes, citing economic benefits. However, climate awareness was showcased when a large number of residents, environmental groups, councils, and even the mayor of London filed suits against these plans.
The case was earlier fought in the High Court, where the Court ruled in favour of the Secretary for Transport, however, the appellants took the case to the Court of Appeals, wherein the High Court’s decision was overturned on the grounds of contravention of the Paris Agreement, but the decisions of the High Court related to the legal challenges raised by the appellants on the grounds of noise and air pollution, traffic and the expensiveness of the project were upheld.
What was held in this case?
The Court of Appeals held that the government’s plans for the third runway were illegal since it had not considered the UK’s commitments to tackle climate change and take climate action under the Paris Agreement. The Court stated that the failure to factor in the Agreement was ‘legally fatal’ and upheld the argument of the appellants that since the UK had ratified the Agreement, it was now an essential part of the government’s climate policy and there had been a tremendous failure on the part of the ministers to assess as to how a third runway would be consistent with the country’s climate action goals.
The Court also stated that it was not concerned with policy matters surrounding the construction of the third runway and the question before the Court was only an ‘ entirely legal question’. Therefore, the legal answer to this question was with regard to the process of making the plans, and not their implementation.
Thus, the Court held that while the ministers had failed to take into account their climate action obligations under the Agreement, they had also failed to comply with the correct procedure regarding formulation of these plans.
In Section 5(8) of The Planning Act 2008, the government must also explain as to how the policy framed by the government takes into account mitigation and adaptation measures to climate change. The Court noted that this had not been complied with by the respondents, as they had been advised to not take climate change into account, and that this was a ‘clear misdirection of the law’.
The Court also explained that the Airports National Policy Statement (which set out the plans), would have no legal effect unless the Secretary of State reviews it according to the Planning Act.
Why is this case important?
This case is being regarded as landmark judgment since it is the first judgment which has taken into account a nation’s obligations under the Paris Agreement. For the first time, the plans for a major infrastructure project have been touted as illegal because of climate change commitments.
Emissions from the aviation sector has been increasing and the UK is also a culprit. Added to this, one also has to consider the fact that the Heathrow Airport is the the largest single source of carbon emissions and a third runway would mean that 700 more planes fly through it on a daily basis, thus not only increasing emissions, but also contributing to noise and air pollution. In these circumstances, the Court did the right thing in declaring the plans illegal.
People are now hoping that this will greatly influence legal thinking across the world wherein more nations would start to incorporate climate change in their legal systems and in the process, helping nations to achieve their targets under the Agreement.
In the UK, the verdict has been widely celebrated by many people, including Greta Thunberg, who now wonders what would happen if the Agreement is considered while making all kinds of executive decisions affecting the environment. People now have hopes that governments around the world would not just lay down goals on paper, but also take actions to follow it.
On the other hand, supporters of the runway feel that the load of air traffic at Heathrow would impose immense pressure and that the aviation sector and small firms would suffer.
What happens next?
It has to be noted that while the Court has declared the plans for making the runway as illegal, it has not declared ‘constructing the runway’ as illegal. The government may choose to file an appeal in the Supreme Court, and if it can prove that there would be a very slight or marginal increase in the GHG emissions due to this, then the runway may be allowed to be constructed. However, the government under Boris Johnson has refused to do so, which is further proof of the fact that the Prime Minister personally does not want to let the runway be constructed; famously once claiming that he would’ lie down in front of the bulldozers’ to stop the runway from being constructed.
The Heathrow authorities say that they intend to file an appeal against the verdict.
While the judgment gives a glimmer of hope, governments all around the world need to follow this kind of legal thinking in this era where climate change is one of the biggest threats being faced by mankind. Economical development must be balanced with environmental protection and in doing so, courts should incorporate sustainable development and the obligations of a nation under international environmental treaties in their legal thinking.
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