UK Law and Practice Contributed by: Ruth Knox and Julian Wolfgramm-King, Paul Hastings LLP
2.6 Climate Litigation Climate change-related litigation has become a new strand of case law in the UK, and can be examined through two lenses: pursuit of private actor defend - ants and separately, public sector defendants. The Finch Case In R ( on the application of Finch on behalf of the Weald Action Group ) v Surrey County Council and others ([2024] UKSC 20), Horse Hill Developments sought planning permission from Surrey County Council to retain and expand an existing onshore oil well site and to drill four new wells enabling the production of hydrocarbons from six wells over a period of 25 years. The environmental impact assessment considered the environmental impacts of the direct releases of GHGs from within the well site boundary but not the impact of downstream GHGs that would result from the extracted oil subsequently being refined and used as fuel. The Supreme Court held that the local authority’s decision to grant planning permission without taking the downstream GHGs into account was unlawful. Friends of the Earth Litigation The litigation led by Friends of the Earth provides a rich source of evidence of the varying interpretations of role of the Paris Agreement in judicial review of administrative decision-making in recent years. In R ( Friends of the Earth and others ) v Secretary of State for BEIS [2022] EWHC 1841 (Admin), the High Court allowed a judicial review challenge to the UK’s October 2021 Net Zero Strategy on the basis that the strategy did not include matters that were material to the issue of whether the targets set under the Climate Change Act 2008 could be met. Similarly, in R ( Friends of the Earth and others ) v Sec- retary of State for Energy Security and Net Zero [2024] EWHC 995 (Admin), the High Court upheld a further judicial review finding that the Secretary of State had failed to comply with their obligations under the Cli - mate Change Act 2008 in relation to their approval of proposals and policies in the UK government’s Car - bon Budget Delivery Plan which purported to fill gaps in the Net Zero strategy.
However, in R ( Friends of the Earth ) v Secretary of State for Environment , Food and Rural Affairs [2024] EWHC 2707 (Admin), the High Court dismissed the application for judicial review of NAP3. Friends of the Earth has indicated that it is applying to the European Court of Human Rights. In R ( Friends of the Earth Ltd and others ) v Heathrow Airport Ltd [2020] UKSC 52, the UK Supreme Court overturned the Court of Appeal’s decision that had allowed the judicial review of the UK Airports National Policy Statement. The Supreme Court held that the Paris Agreement and government announcements did not constitute “government policy” for the purposes of the Planning Act 2008 and, as such, the Secretary of State had not breached their duty under the Planning Act 2008 to have regard to the desirability of mitigat - ing and adapting to climate change – ie, by failing to consider the Paris Agreement beyond the extent to which it had already been considered. In R ( Friends of the Earth Ltd .) v Secretary of State for International Trade / UK Export Finance [2023] EWCA Civ 14, the Court of Appeal dismissed an applica - tion for judicial review of a decision by UKEF to pro - vide export finance to a liquified natural gas project in Mozambique. The court confirmed the department should be granted a significant margin of apprecia - tion as it was the first UK government department to assess climate change impacts in the context of a long-term foreign project. In Friends of the Earth Ltd v Secretary of State for Levelling Up , Housing and Communities [2024] EWHC 2349 (Admin), the High Court ordered the quashing of the 2022 planning permission granted by the Sec - retary of State for a new underground coal mine at Whitehaven, Cumbria on the basis that the Secre - tary of State had breached EIA requirements pursu - ant to the Town and Country Planning Act 1990 by not assessing the impact of GHG emissions from the burning of mined coal (applying the Finch case). By contrast, in R ( on the application of Greenpeace Ltd ) v Secretary of State for Energy Security and Net Zero [2023] EWHC 2608 (Admin), the High Court refused applications for judicial review of a decision by DESNZ to launch a new North Sea oil and gas
108 CHAMBERS.COM
Powered by FlippingBook