Why did the Supreme Court overrule the Court of Appeal and reinstate the Airports National Policy Statement?

The judgment of the Supreme Court really turns on one point. Was the Paris Agreement of 2015 on reducing the global warming effects of greenhouse gas emissions government policy in 2018, when the then Secretary of State for Transport designated the Airports National Policy Statement? The High Court said “No”. The Court of Appeal said “Yes”. The Supreme Court said “No”.

The Planning Act requires any national policy statement to set out how it takes account of government policy on mitigating climate change.

In our view, signing an international treaty by which a country intends to be bound is surely part of its government policy. Is the UK Government seriously going to say that it will sign a treaty and then walk away and take no notice of it? The logic of the Supreme Court is that the Paris Treaty is part of international law creating international obligations. Until that is transported into domestic law, it gives no rights to or obligations upon individuals and so does not form part of “Government Policy”. Hence, so says the Supreme Court, Chris Grayling was entitled in 2018 to ignore the Paris Treaty when designating the Airports National Policy Statement.

The Supreme Court accepted Heathrow’s argument that as the Climate Change Act, at the time of designation, provided that the national target reduction in CO2 emissions was 80% of 1990 emissions, that was the policy then, and it was right to ignore the Paris Treaty.

In our view this confuses the law and government policy. The law may not have been tightened up at the time following the signing of an international treaty, but surely the government policy is to abide by the terms of the international treaty? To say otherwise risks people thinking that the law is an ass. However, as it is the Supreme Court, this is the law now and can only be overruled by Parliament. It will be used as a precedent in the future.

The Supreme Court made the rather bizarre finding of fact that the parties conceded that the Paris Agreement was not part of government policy and the argument turned only upon what Andrea Leadsom and Amber Rudd had said in Parliament. That was certainly not what many people who attended the trial understood. Nor was it the understanding of the Court of Appeal who said that:

“It is clear, therefore, that it was the Government’s expressly stated policy that it was committed to adhering to the Paris Agreement to limit the rise in global temperature to well below 2ºC and to pursue efforts to limit it to 1.5ºC..”

Indeed the Court of Appeal addressed this whole issue in substantially more detail than did the Supreme Court.

At least the Supreme Court did say that the future rules on climate change would be applicable on the making of any Development Consent Order. The Supreme Court said:

“Before turning to the legal challenges in this appeal it is also important to emphasise that, as we have stated in para 10 above, HAL, FoE and Plan B Earth agree that should the NWR Scheme be taken forward to a DCO application, the ANPS would not allow it to be assessed by reference to the carbon reduction targets, including carbon budgets, that were in place when the ANPS was designated in June 2018. The ANPS requires that the scheme be assessed against the carbon reduction targets in place at the time when a DCO application is determined: para 5.82 of the ANPS which we have set out in para 87 above. There is therefore no question of the NWR Scheme being assessed in future against outdated emissions targets”.

This is useful for future reference and may be used as a weapon should Heathrow ever try to proceed to a DCO application. How correct it is and whether para 5.82 of the ANPS can be interpreted in this way remains to be seen, since the ANPS actually recites the advice that development is possible and the Government have confirmed in court that the Government did not take account of Paris as it was not Government Policy. Para 5.82 refers to “any increase in carbon emissions alone is not a reason to refuse development consent”. Oh well….

The Supreme Court reinforced the point of looking at the situation at the time of the DCO application by denying Tim Crosland of Plan B Earth his argument of breach of human rights by saying that “any effect on the lives and family life of those affected by the climate change consequences of the NWR Scheme would result not from the designation of the ANPS but from the making of a DCO in relation to the scheme”. This, in our view, is a clear indication that the proverbial door has been left open for a challenge at DCO time.

On this basis, we think that development is unlikely ever to take place, since the law has changed and the current law provides for a stricter 100% reduction in CO2 emissions by 2050 (up from 80%). The Committee on Climate Change, in its 6^th carbon budget has specifically recommended that there should not be airport expansion. In other words, since the passing of the ANPS, the rules have become stricter and the ANPS did not take account of the stricter rules. Life has moved on.

With this in mind a  member of TAG has now made a formal request to the Secretary of State to withdraw the Airports National Policy Statement. The original request for review was made back in October 2019, and a follow-up letter has just been written. Copies can be accessed HERE

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