A major government strategy which sets out long term plans to ensure the UK meets its legally binding net zero targets will have to be revised following a High Court ruling which found the document to be unlawful.
On 18 July, Mr Justice Holgate published a judgment stating that the Net Zero Strategy – launched in October 2021 – breaches obligations under sections 13 and 14 of the Climate Change Act 2008.
The strategy came two years after the UK became the first major economy to pass laws requiring all greenhouse gas emissions to be reduced to net zero by 2050. It also adopted the Climate Change Committee’s sixth carbon budget in April 2021, which requires emissions to be cut 78% by 2035, compared to 1990 levels.
However, in a case which brought together separate legal challenges by environmental law firm ClientEarth and campaign groups Friends of the Earth and Good Law Project, it was ruled that the strategy must now be strengthened.
During the hearing, it was argued that the government breached legal duties by failing to demonstrate that its policies would reduce emissions sufficiently to meet carbon budgets, or include sufficient information about their expected effects to allow proper Parliamentary and public scrutiny.
It was also heard that the strategy omitted detail indicating that the government’s plans as outlined in the document would only account for up to 95% of the emissions reductions needed to meet the sixth carbon budget.
The court decided that the Secretary of State did not make any legal error by proceeding on this basis. However it held that he approved the strategy without being provided with sufficient information as to the quantitative contributions of individual policies in meeting carbon budgets, or a qualitative analysis explaining which policies were relied upon to make up the 5% shortfall.
Mr Justice Holgate said information on the numerical contribution made by the policies was “legally essential” to enable the defendant to discharge his obligation under section 13 of the Act.
“The information which ought to have been provided to the defendant would have influenced his assessment of the merits of particular measures,” he said. “It was crucial so that he could question whether, for example, the strategy he was being advised to adopt was overly dependent on particular policies, or whether further work needed to be carried out to address uncertainty, or whether the overall figure of 95% was robust or too high.”
The court also held that the omission of any quantitative assessment in the strategy – and the fact it did not reveal the 5% emissions reduction shortfall against the sixth carbon budget – meant insufficient transparency was provided to allow Parliament to scrutinise the policies, or for the public to properly understand how the government intends to meet its statutory targets. Therefore, the Secretary of State was also in breach of section 14 of the Act.
Following the ruling, the government has been given eight months to update the Net Zero Strategy and lay before Parliament a fresh report under section 14 by the end of March 2023. The court also ordered the Secretary of State to pay the claimants’ costs and refused an application for permission to appeal.
Commenting on the outcome, ClientEarth lawyer Sam Hunter-Jones said: “It’s not enough for the UK Government simply to have a net zero strategy, it needs to include real-world policies that ensure it succeeds. Anything less is a breach of its legal duties and amounts to greenwashing and climate delay.”
Sector response
In the aftermath of the ruling, questions have been raised about the likely implications for decarbonisation in the construction sector, and whether to any extent the additional uncertainty will delay the progress of net zero initiatives.
“Importantly, the court judgment does not overturn the Net Zero Strategy,” commented Clyde & Co partner Lucy Frith. “It does mean that the government now has to revisit the strategy to incorporate the required analysis, and then present the revised strategy to Parliament by March 2023.
“There is presently no indication that this will cause the underlying policies within the strategy to change.”
She added: “For the construction industry, it is likely that the upcoming change in premiership within the United Kingdom poses more uncertainty about the direction of net zero policy than the court’s recent ruling.”
Pinsent Masons senior associate Jonathan Vickers emphasised that although the business community, rather than the government, is leading on proposals to combat climate change, “this can only go so far without clear legislation and regulations from Parliament to prescribe for future developments to meet agreed net zero focused requirements”.
He described the High Court’s ruling as a “clear wake up call for the government that parties “cannot play politics” with the net zero agenda, and said this is particularly evident in the built environment and construction sector.
“The regulation of embodied carbon forms no clear part of current government policy despite Climate Change Committee recommendations that it should,” he highlighted. “There also continues to be a policy gap on the huge issue of increasing the energy efficiency of existing owner-occupied properties. Whether either of these issues will be tackled in the tighter net zero strategy that the court has ordered the government to produce within eight months remains to be seen.”
Mr Vickers added: “What will now be interesting to observe is whether the net zero programme is going to be able to withstand the added pressure of the cost of living and energy crisis and higher than expected inflation, without incurring some dilution.”
CMS senior associate Charlotte Eccles said greater clarity from the government over its climate plans will be “hugely welcomed” by the industry, providing certainty over the direction of travel and helping to set expectations in the market.
“In addition, the transition to net zero will not be without cost and challenge and the industry needs to know that there will be government support and backing to enable it to make this important transition,” she said. “The construction industry will be key to the drive to net zero for two main reasons: Firstly, it is currently a significant contributor to carbon emissions, and secondly, if we are to meet our net zero targets, investment in new green infrastructure is crucial.”
Construction trade group Build UK said regardless of the ruling, the industry remains committed to the priorities outlined in CO2nstruct Zero, which is an industry-led programme to reduce carbon emissions.
“One of these priorities is accelerating the shift to zero emission vehicles and onsite plant, with a target to eliminate 78% of diesel plant from sites by 2035, and we have produced guidance for the industry on the steps they can take,” a spokesperson said.
While it seems unlikely that the court’s ruling will put any significant dent in the construction industry’s progress to cut emissions, it is clear that the sector needs certainty of policy and support from the government to have confidence in making the green investments required.
It can only be hoped that a period of greater stability and clarity will follow the forthcoming revision of the Net Zero Strategy and the change in leadership at the top of government.
Originally published in Construction Law – a membership site with limited access for non-subscribers