The English Court of Appeal has stymied plans for a third runway at Heathrow Airport, finding that the UK Government acted unlawfully in failing to consider its obligations under the Paris Agreement on climate change when preparing policy documents.
This reflects a growing trend of litigation, in New Zealand and overseas, challenging infrastructure projects and business operations on climate change grounds.
Climate change obligations are increasingly relevant to all sectors of the New Zealand economy. Following the enactment of the Zero Carbon Amendment Act in December 2019, New Zealand decision-makers will need to be alert to similar arguments here.
We look at the judgment in Plan B Earth v Secretary of State for Transport.1
The legislative context
The UK Government had approved the proposed runway by designating the Aviation National Policy Statement (NPS) pursuant to the UK’s Planning Act 2008.
The Planning Act requires:
- that an NPS “include an explanation of how the policy set out in the statement takes account of government policy relating to the mitigation of, and adaptation to, climate change”, and
- that the Secretary of State for Transport have regard in decision-making to the objective of achieving sustainable development and, in particular, the desirability of mitigating and adapting to climate change.
Faced with multiple claims for judicial review from groups opposed to Heathrow’s expansion, the Government had successfully argued in the Divisional Court that the relevant statute was the UK Climate Change Act 2008 (CCA) and that the Paris Agreement could not override this as it had not been incorporated into UK law.
The Court of Appeal disagreed, finding that the concept of “Government policy” is necessarily broader than legislation. It pointed to the UK’s ratification of the Paris Agreement in 2016, and several statements from Ministers confirming adherence to its goals, as evidence that it was part of Government policy.
It also found that the Government’s failure to take the Paris Agreement into account was irrational and unlawful. While it is normally for the decision maker to determine the relevance of matters not identified as mandatory considerations, in this case the only reasonable view was that the Paris Agreement was so “obviously material” that it had to be taken into account.
The Court of Appeal stressed that it has not ruled that a third runway would necessarily be inconsistent with the Paris Agreement, but merely that the process followed by the Secretary of State for Transport was unlawful because he failed to consider the government’s obligations under the Paris Agreement at all.
Related climate change decisions
In holding that the Secretary of State for Transport was required to consider international climate change obligations, the Plan B judgment echoes the New Zealand case of Thomson v Minister for Climate Change Issues,2 in which the High Court accepted that the publication of a new report from the United Nation’s Intergovernmental Panel on Climate Change (IPCC) was a mandatory relevant consideration in deciding whether to review New Zealand’s 2050 emission reduction targets set under the Climate Change Response Act 2002.
In Gloucester Resources Ltd v Minister for Planning,3 the Land and Environment Court of New South Wales upheld the Minister’s decision to deny planning permission for a proposed new open-cast coal mine due in part to the projected downstream and offshore greenhouse gas emission effects.
And in the Enea case of 2019, the courts in Poland upheld an activist shareholder challenge to participation in a major new coal-fired power project on the basis that climate change-related financial risks meant the decision to proceed with the plant was not in the company’s best financial interests.4
In recent days, no doubt emboldened by the Heathrow decision, a challenge to HS2 (the high speed rail network project that would link London with Manchester and Leeds) has been launched.5
Climate change litigation shows no signs of abating and can take a variety of forms. This includes challenges to specific projects – such as the Heathrow, Enea and HS2 cases – but also disclosure-based litigation,6 tort-based litigation,7 and rights-based challenges such as the successful claim brought by the Urgenda Foundation, upheld by the Netherlands Supreme Court in 2019.8
In recent weeks, the Australian government has agreed to pay $25m in response to a human rights complaint by Torres Strait Islanders over climate inaction.9
Most recently, the New Zealand High Court issued its first instance decision on Friday 6 March in Smith v Fonterra et al in which the plaintiff sought declarations and injunctions against seven of New Zealand’s alleged ‘major emitters’. The Court struck out two of the causes of action as being untenable, but has allowed a third cause of action to proceed.10
Relevance to New Zealand
Heathrow Airport has said it will appeal to the Supreme Court, and current political opposition to the third runway may mean that the question is never viewed through the lens of the Paris Agreement at all.
In the New Zealand context, currently neither the Resource Management Act (RMA) nor the Climate Change Response Act 2002 (as amended by the ZCAA) contain a positive obligation to consider climate change policy. Indeed, the RMA explicitly excludes consideration of the effects on climate change from direct and indirect greenhouse gas emitting activities (a position that was upheld by the Supreme Court11.
However, this position may well change as it has been identified as an issue in the current review of the resource management system.
Also, the Climate Change Response Act now includes a permissive power for decision making bodies to take into account New Zealand’s emission reduction targets and emission budgets where they “think fit” – an amendment recommended by the Select Committee reporting on the (then) Zero Carbon Bill to ensure that the Courts were able to take these factors into consideration. Decision makers across the economy will need to be conscious of these powers when considering infrastructure projects in future.
1 Plan B Earth v Secretary of State for Transport  EWCA Civ 214
2 Thomson v Minister for Climate Change Issues  NZHC 733
3 Gloucester Resources Ltd v Minister for Planning  NSWLEC 7
4 ClientEarth v Enea SA (District Court in Poznan, IX Commercial Division, 31 July 2019)
5 See Gwyn Topham, “HS2 legal challenge launched by Christ Packham”, The Guardian (online ed, 4 March 2019) https://www.theguardian.com/uk-news/2020/mar/03/hs2-legal-challenge-launched-by-chris-packham
6 See for example McVeigh v Retail Employees Superannuation Pty Ltd  FCA 14, alleging inadequate disclosure of climate change risks
7 Smith v Fonterra Cooperative Group and others HC Wellington CIV-2019-404-1730, 27 August 2019
8 Urgenda Foundation v State of the Netherlands (19/00135, 20 December 2019)
9 See https://www.clientearth.org/torres-strait-islanders-win-key-ask-after-climate-complaint/ 19 February 2020
10 Disclosure: Chapman Tripp acts for three of the seven defendants in these proceedings and does not comment further at this time.
11 West Coast ENT Inc v Buller Coal Ltd  NZSC 87