Growing wave of legal challenges on commitments to Net Zero policies - Marc Armstrong

This summer’s North Lowther Energy v Scottish Ministers judicial review decision provided further evidence of a growing wave of post-COP26 challenges to authorities over their commitment in delivering on Net Zero pledges.

This case raised arguments about whether Scottish ministers had proper regard to their legal obligations arising from Scottish Parliament climate change legislation and related Scottish Government policy commitments in their refusal to grant consent for a Dumfries and Galloway wind farm development. The court concluded that while such legislation and policy are important considerations in the consenting process, the weight each factor should be given was for the decision maker’s judgment.

In this case, more weight was given towards visual impact than climate implications but if the new National Planning Framework 4 is approved by the Scottish Parliament later this year, it may change that approach. We could then see increasing opportunities for activists, NGOs and other interested parties to press authorities in Scotland to “walk the walk” on all aspects of climate change policy.

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London School of Economics picked up on this emerging trend in a report released last month which highlights how 80 framework litigation cases have been filed globally since the end of July.

Marc Armstrong is a Partner and energy specialist in the Dispute Resolution team at law firm CMSMarc Armstrong is a Partner and energy specialist in the Dispute Resolution team at law firm CMS
Marc Armstrong is a Partner and energy specialist in the Dispute Resolution team at law firm CMS

These legal challenges come in the wake of the most recent Intergovernmental Panel on Climate Change (IPCC) report which concluded that climate change poses an “unequivocal” threat to human wellbeing.

Over a summer of record-breaking temperatures, UK ministers were challenged by Friends of the Earth over the lack of policy detail around its Net Zero Strategy. In that case, the High Court concluded the UK Government had not sufficiently met its obligations and sent it away to do necessary additional work.

These developments are part of a wider pattern of other recent challenges raised in UK courts over climate change-related issues. This includes cases involving the likes of Heathrow Airport and Drax Power Station, and Plan B Earth’s unsuccessful challenge against UK ministers over their failure to take ‘practical and effective’ steps to reduce greenhouse gas emissions. The mood music in those cases has been that policy setting is for the executive. The courts’ role is a separate and limited one of determining whether decisions are reached lawfully and rationally.

By contrast, recent cases in other countries, including Germany and The Netherlands, have seen NGOs and individual citizens successfully taking action in an attempt to force policy change, requiring governments to take a more ambitious approach on addressing climate change.

As the UK Government aims to address the cost-of-living crisis and looks to enhance energy security in light of the Russian invasion of Ukraine, we are now seeing a fresh focus on either non-sustainable or controversial energy sources including fracking, licensing for further North Sea oil extraction, and the building of new nuclear power stations.

These developments will likely drive further climate change-based court challenges. And while the UK courts may not be prepared to order policy change, as courts in other jurisdictions have, such litigation can have an important profile-raising role, even where it is unsuccessful.

Both the Scottish and UK Government are facing difficult choices at a time where we are experiencing rising inflation and falling living standards for consumers on one hand, but a push to adhere to or even extend Net Zero commitments on the other. Getting this balance right presents a huge challenge.

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Energy-related planning and licensing processes, especially those involving fossil fuels or nuclear power, will continue to be scrutinised closely with judicial challenges from individuals and NGOs more likely than ever. This will also apply to any government decisions which prevent the progress of sustainable energy developments, as we saw with the North Lowther Energy v Scottish Ministers judicial review.

By holding governments firmly to account, individuals and groups which are committed to campaigning for net zero will hope they bring swifter action over climate change. The increased number of legal challenges on these matters is therefore set to continue despite the tough economic climate and the current approach of the UK courts.

Marc Armstrong is a Partner and energy specialist in the Dispute Resolution team at law firm CMS

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