Net Zero Strategy Court Case (UK)

On 18 July 2022, the High Court handed down a judgment in a case against the UK government on its Net Zero Strategy (NZS). The judgment is here. The summary is here.

The judgment states – (extracts and some sentences shortened) –

The UK responded to the 21st COP Paris Agreement (2015) in two ways. First, section 1 of the Climate Change Act 2008 (“CCA 2008”) was amended so that it became the obligation of the Secretary of State for Business, Energy and Industrial Strategy (BEIS) to ensure that “the net UK carbon account” for 2050 is at least 100% lower than the baseline in 1990 for CO2 and other GHGs, in substitution for the 80% reduction originally enacted (see the Climate Change Act 2008 (2050 Target Amendment) Order 2019 (SI 2019 No.1056)). That change came into effect on 27 June 2019.

Second, on 12 December 2020 the UK communicated its NDC (National Determined Contributions) to the UNFCCC (UN Framework Convention on Climate Change) to reduce national GHG emissions by 2030 by at least 68% compared to 1990 levels, replacing an earlier EU based figure of 53% for the same year.

Section 4 of the CCA 2008 imposes a duty on the Secretary of State to set an amount for the net UK carbon account, referred to as a carbon budget, for successive 5 year periods beginning with 2008 to 2012 (“CB1”). Each carbon budget must be set “with a view to meeting” the 2050 target in s.1. The ninth period, CB9, will cover the period 2048-2052 for which 2050 is the middle year. Section 4(1)(b) imposes a duty on the Secretary of State to ensure that the net UK carbon account for a budgetary period does not exceed the relevant carbon budget. Thus, the CCA 2008 had established a framework by which the UK may progress towards meeting its 2050 net zero target.

The Secretary of State has set the first 6 carbon budgets. Each has been the subject of affirmative resolution by Parliament. CB6 came into force on 24 June 2021 (The Carbon Budget Order 2021 – SI 2021 No. 750) and sets a carbon budget of 965 Mt CO2e (million tonnes of carbon dioxide equivalent) for the period 2033 – 2037.

The court case was for judicial review but did not challenge the setting of the net zero target in s.1 of the CCA 2008 nor the setting of any carbon budget (including CB6).

Instead, the court case asked if the UK government had complied with s.13 and/or s.14 of the CCA 2008.

Section 13 imposes a duty on the Secretary of State to “prepare such proposals and policies” as he considers will enable the carbon budgets which have been set under the CCA 2008 to be met. The UK government agrees this is a continuing obligation.

Section 14 provides that “as soon as is reasonably practicable” after setting a carbon budget, the Secretary of State must lay before Parliament a report setting out proposals and policies for meeting the current and future “budgetary periods” up to and including that budget. Following the setting of CB6, the Secretary of State laid the NZS before Parliament on 19 October 2021 as a report under s.14 of the CCA 2008.

Re Section 13 – the court concluded –

(1) s.13(1) of the CCA 2008 does not require the Secretary of State to be satisfied that the quantifiable effects of his proposals and policies will enable the whole of the emissions reductions required by the carbon budgets to be met. The obligation in s.13(1) does not have to be satisfied by quantitative analysis alone.

(2) Information on the numerical contribution made by individual policies in the NZS is legally essential to enable the government to discharge its obligation under s.13(1) by considering the all-important issue of risk to delivery. These are matters for the Secretary of State and not simply his officials.

Re Section 14 – the court concluded –

(3) The NZS should have gone 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 in order to comply with the language and statutory purposes of s.14 of the CCA 2008.

(4) It is the responsibility of the Secretary of State, not his officials, to lay a report before Parliament under s.14. The adequacy of such a report is a matter for him, acting on the advice of officials and with legally sufficient briefing.

The Secretary of State must lay before Parliament a fresh report under section 14 before the end of March 2023.