Friends of the Earth - Following in FIE's Footsteps
In this blog, Eoin Jackson[1] discusses the recent judgment of the UK High Court in Friends of the Earth v Secretary of State for Business, Energy and Industrial Strategy.[2] As a successful challenge to the UK government’s Net Zero Strategy, the case exhibits a strategy of litigation first seen in the Irish Supreme Court case of Friends of the Irish Environment. This case note examines the parallels between both cases, the successful and unsuccessful submissions of the plaintiffs, and the burgeoning sphere of climate litigation.
Introduction
Climate litigation has become an increasingly effective tool for holding states accountable for their failure to enact effective climate change mitigation policies.[3] This was seen most recently in Ireland through the Friends of the Irish Environment (FIE) v Government of Ireland case,[4] where the Supreme Court struck down Ireland's Climate Mitigation Plan for its lack of specificity on climate action.[5] Seeing the success of FIE, UK climate activists set out to take a similar challenge against the UK government's Net Zero Strategy.[6] The Net Zero strategy is the UK’s leading policy and proposal document outlining how the state intends to reach the targeted goal of net zero emissions by 2050.[7]
Facts
The case was taken by three environmental activist organisations: Friends of the Earth, ClientEarth and the Good Law Project. The plaintiffs alleged that the Net Zero Strategy set out by the UK government contained insufficient information to identify how the Strategy would achieve its desired emission reduction targets. This was argued to be a violation of the Climate Change Act 2008 (CCA),[8] which obligates the UK government to adopt plans conducive to the achievement of net zero carbon emissions by 2050.
The plaintiffs brought their arguments before the High Court. There were three primary submissions:
The defendant had erred in their interpretation of s13 of the CCA, due to the absence of sufficient information in the Net Zero Strategy to deem it capable of achieving the net zero target.[9] Section 13 of the Climate Change Act states; ‘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’.[10] As can be seen from the language of the statute, the Act gives a broad scope of discretion to the Minister to determine which information is relevant when assessing how to enable carbon budgets to be met. Despite this broad scope, the plaintiffs still argued that the Minister had not utilised their capacity in a manner conducive to the facilitation of the achievement of the net zero strategy.
The defendant had failed to include information legally required to meet disclosure obligations under s14 of the CCA.[11] Specifically, that they did not include time scales as to when targets would be met, an explanation of how the defendant had come to the conclusion that the Net Zero strategy was sufficient and a quantification of how these policies would reduce emissions.
The defendants had breached their obligations under the European Convention on Human Rights (ECHR), which could be used in interpreting English law by virtue of the Human Rights Act 1998. It was alleged that the UK has obligations under Articles 2, 8 and Article 1 Protocol 1 (the right to life, the right to family life and the obligation to project private property respectively) to take immediate action against climate change. The Human Rights Act would therefore, according to the plaintiffs, oblige the Court to interpret these rights in the context of UK climate strategy. The lack of an effective response from the UK was consequently a breach of all of the above articles.[12]
Judgment
Holgate J sided with the plaintiffs. He determined that the Net Zero Strategy lacked the necessary detail required to achieve the statutory goal of the Climate Act.[13] He also agreed with the plaintiff that the defendant had breached s14 of the Climate Act by failing to meet its disclosure obligations.[14] He did not accept ground 3 of the plaintiffs argument; holding that it would go beyond the scope of incremental development of the law were he to find the defendant to be in breach of their ECHR obligations.[15]
He ordered the defendant to explain exactly how its net zero policies will meet statutory targets.[16] In particular, the defendant will now be required to update its climate strategy to include a quantified account of how its policies will achieve the stated climate targets, based on a realistic assessment of what is actually deliverable in practice. The updated climate strategy will then need to be presented to Parliament for further scrutiny by Members of Parliament.
Importance for Climate Activism
The judgment is important in building on the precedent established in FIE regarding how a government must go about implementing climate action. The judge was highly critical of the government's attempts to justify its lack of detail within the Net Zero Strategy. In particular, he noted that it was not enough for the government to merely publish a report outlining to Parliament what the Strategy’s policies and proposals are.[17] Instead, the report must contain explanation and quantification that explain how the government came to the relevant conclusion. Otherwise, the government would effectively be allowed to publish any conclusion on climate action without needing to consult the necessary science behind measurable climate action.
The concern outlined above is related to the importance of effective disclosure of environmental plans and data. Such disclosure is obliged on an international level through the first ‘pillar’ of the Aarhus Convention’.[18] However, in finding that the government had not met its disclosure obligations, the judge turned to the approach of Clarke CJ in FIE. He referenced favourably the determination in FIE that, per Clarke CJ; ’Second, the very fact that there must be a plan and that it must be published involves an exercise in transparency. The public are entitled to know how it is that the government of the day intends to meet the NTO. The public are entitled to judge whether they think a plan is realistic or whether they think the policy measures adopted in a plan represent a fair balance as to where the benefits and burdens associated with meeting the NTO are likely to fall’.[19]
Indeed, the judge placed great reliance on FIE in coming to his overall findings. For example, he cited Clarke CJ’s criticism of the Irish government's failure to explain how new technologies, such as carbon extraction technology could play a role in the achievement of net zero.[20] Similarly, while the judge distinguished between the Irish climate plan, which lacked specificity and the UK Strategy, which lacked detailed explanation, a broadly similar conclusion arose in both cases - that being an obligation on the relevant government to implement detailed and effective policies. Thus, two common law jurisdictions with different constitutional matrixes managed to achieve similar results in terms of accountability for climate action.[21] This creates a pattern of precedent that will be useful in pursuing action in other common law jurisdictions. FIE opened the door to challenging climate policy. This case may be the first sign of an avalanche of successful litigation to follow.
Human Rights Obligations - Too Fast Too Soon
One unfortunate aspect to the judgment is the treatment of the human rights element to the plaintiffs’ argument. The judge was wary from both a domestic and ECHR perspective of using the Convention to criticise climate policy. Domestically, he could not identify any previous attempt to interpret the Human Rights Act in so ‘ambitious’ a manner.[22] In regard to the Convention itself, he noted that the Strasbourg Court placed great emphasis on the incremental development of case law. The only comparable case that had found a breach of ECHR obligations was Urgenda v the Netherlands.[23]However, the judge distinguished this case on the grounds that; firstly, the Dutch legal system is a monist system as opposed to the dualist system used in the UK and secondly, that the Urgenda case had concerned legislation with specific goals for the government.[24] The CCA by contrast gave a wide scope of discretion to the Minster to determine the approach to be taken to climate policy. Thus, the judge did not deem Urgenda as being a sufficient precedent in order to find in favour of the plaintiffs’ human rights arguments in a manner that would be considered incremental.
This appears to be a fair assessment of the law, given that the ECtHR itself is only beginning to consider the intersection between human rights and climate change.[25] Until the ECtHR has made a definitive statement on the matter, it is unlikely that domestic courts will be able to adopt the approach taken in Urgenda. With it being possible that the UK will soon withdraw from the ECHR,[26] it is unlikely that this ruling will have any long-term effects on efforts to wield the Convention in a manner conducive to climate action.
Conclusion
In conclusion, the case represents a landmark judgment for UK based climate activism. On a domestic level, the government will need to return to the drawing board and identify how exactly its climate policies will realistically achieve targets. On an international level, it sets the stage for further common law jurisdiction to hold states accountable for their hesitancy in pursuing effective climate action. It also should force a greater reassessment of previous climate policies to ensure they are implementing proposals that will achieve the desired outcome. It is disappointing that the ECHR aspect to the plaintiffs’ claim was dismissed, given that human rights-based arguments could further increase the obligation on the government to improve its climate policies. However, it is accepted that a finding on ECHR grounds, when the ECHR itself is only just beginning to consider climate based human rights cases, would have been a case of trying to run before the Court can walk. Thus, while disappointing, it does not outweigh the additional pressure that will be placed on the government to enact much needed changes to its otherwise lacking climate policy framework.
[1] Harvard LLM student. [2] [2022] EWHC 1841. [3] Jacqueline Peel and Hari Osofsky, ‘Climate Change Litigation’ (2020) 16 Annual Review of Law and Social Science 21-38. [4] FIE v Government of Ireland [2020] IESC 49. [5] Orla Kelleher, ‘A critical appraisal of Friends of the Irish Environment v Government of Ireland’ (2020) 30(1) Review of European, Comparative and International Environmental Law 138-146. [6] Friends of the Earth v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841. [7] Department for Business, Energy & Industrial Strategy, ‘Net Zero Strategy: Build Back Greener’ (October 19 2021) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1033990/net-zero-strategy-beis.pdf>accessed 1 September 2022. [8] Climate Change Act 2008. [9] Section 13 of the Climate Change Act states; ‘(1) 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. (2) The proposals and policies must be prepared with a view to meeting— (a) the target in section 1 (the target for 2050), and (b) any target set under section 5(1)(c) (power to set targets for later years). (3) The proposals and policies, taken as a whole, must be such as to contribute to sustainable development. (4) In preparing the proposals and policies, the Secretary of State may take into account the proposals and policies the Secretary of State considers may be prepared by other national authorities.’ See also Roger Pielke, ‘The British Climate Change Act: a critical evaluation and proposed alternative approach’ (2009) 4(2) Environmental Research Letters 1-8. [10] ibid. [11] Section 14 of the Climate Change Act states; ‘(1) As soon as is reasonably practicable after making an order setting the carbon budget for a budgetary period, the Secretary of State must lay before Parliament a report setting out proposals and policies for meeting the carbon budgets for the current and future budgetary periods up to and including that period. (2) The report must, in particular, set out— (a) the Secretary of State's current proposals and policies under section 13, and (b) the time-scales over which those proposals and policies are expected to take effect. (3) The report must explain how the proposals and policies set out in the report affect different sectors of the economy. (4) The report must outline the implications of the proposals and policies as regards the crediting of carbon units to the net UK carbon account for each budgetary period covered by the report. (5) So far as the report relates to proposals and policies of the Scottish Ministers, the Welsh Ministers or a Northern Ireland department, it must be prepared in consultation with that authority. (6) The Secretary of State must send a copy of the report to those authorities.’ [12] Friends of the Earth (n 6) paras 17-22. [13] Per Holgate J in Friends of the Earth (n 6) paras 156 - 222. [14] ibid paras 223-260. Section 14 of the Climate Act states: ‘(1) As soon as is reasonably practicable after making an order setting the carbon budget for a budgetary period, the Secretary of State must lay before Parliament a report setting out proposals and policies for meeting the carbon budgets for the current and future budgetary periods up to and including that period. (2)The report must, in particular, set out— (a) the Secretary of State's current proposals and policies under section 13, and (b) the time-scales over which those proposals and policies are expected to take effect. (3) The report must explain how the proposals and policies set out in the report affect different sectors of the economy. (4) The report must outline the implications of the proposals and policies as regards the crediting of carbon units to the net UK carbon account for each budgetary period covered by the report. (5) So far as the report relates to proposals and policies of the Scottish Ministers, the Welsh Ministers or a Northern Ireland department, it must be prepared in consultation with that authority. (6) The Secretary of State must send a copy of the report to those authorities. [15] Friends of the Earth (n 6) para 275. [16] ibid para 279. [17] ibid para 235. [18] Aarhus Convention Pillar One. See also Michael Mason, ‘Information disclosure and environmental rights: the Aarhus Convention’ (2010) 10(3) Global Environmental Politics 10-31. [19] FIE (n 4) Clarke CJ para 6.21, as referenced in para 53 of Friends of the Earth (n 6) per Holgate J. [20] ibid para 250. [21] See Hilary Biehler, Judicial Review of Administrative Action (3rd edn, Round Hall 2013) for a comparative analysis of the difference in how judicial review of governmental policy occurs in the UK and Ireland. [22] Friends of the Earth (n 6) para 263. [23] Urgenda v The Netherlands [2019] ECLI:NL:PHR:2019:887. This case saw the Dutch Supreme Court order the Dutch government to reduce its emissions in order to comply with human rights obligations under the ECHR. For more on Urgenda see Maiko Meguor, ‘State of the Netherlands v. Urgenda Foundation’ (2020) 114(4) American Journal of International Law 729-735. [24] Friends of the Earth (n 6) para 270. [25] Helen Keller, ‘Something Ventured, Nothing Gained?—Remedies before the ECtHR and Their Potential for Climate Change Case’ (2022) 22(1) Human Rights Law Review 1-26. [26] Zoe Jay, ‘A tale of two Europes: How conflating the European Court of Human Rights with the European Union exacerbates Euroscepticism’ [2021] The British Journal of Politics and International Relations 1-19. See also Kitty Donaldson, ‘Sunak Says ‘All Options on Table’ for UK Withdrawal From ECHR’ Bloomberg (16 June 2022) <https://www.bloomberg.com/news/articles/2022-06-16/sunak-says-all-options-on-table-for-uk-withdrawal-from-echr>accessed 1 September 2022.
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