14: High Court hears Net Zero Strategy challenges

This week’s entry reports on the three legal challenges to the Government’s Net Zero Strategy.

In October 2021, the government published its ‘Net Zero Strategy’.

It says on page 2 that it is ‘presented to Parliament pursuant to Section 14 of the Climate Change Act 2008’, which gives away that it is not in fact a strategy to achieve net zero by 2050, as you might think from its title, but a strategy to achieve the sixth carbon budget (CB6), which is from 2033-2037 and which seeks a reduction in carbon emissions of 78% compared to 1990.

On the plus side, some of the targets in it have since been ratcheted up further in the British Energy Security Strategy (BESS), eg the ambition for 40GW of offshore wind generation by 2030 is now 50GW, and there is now an expectation of 70GW of solar by 2035 when there was no figure before.

On the minus side, the strategy was challenged by three organisations: Friends of the Earth, ClientEarth and the Good Law Project (GLP). The cases were amalgamated and heard by Mr Justice Holgate in the High Court on 8 and 9 June.

Each of the three challengers has published its report of the hearings:

• ClientEarth’s is here;
• Friends of the Earth’s is here; and
• the GLP’s is here.

All three reports say that the government admitted for the first time that their policies would only achieve 95% (or in the GLP’s case, up to 95%) of the emissions reductions needed to achieve the sixth carbon budget (CB6).

The GLP has published the parties’ joint skeleton argument (a summary of what they intended to raise in court) here.

The first ground of challenge is based on section 13 of the Climate Change Act 2008 (the duty to prepare proposals and policies for meeting carbon budget). It is alleged that the government wrongly thought it did not have to quantify the impact of its policies and proposals to see if the carbon budget would be met, and / or wrongly thought it did not need to express any confidence that they would meet the carbon budget, and / or that it ignored a possible future change to the weighting of non-CO2 greenhouse gases that would result in a 5% shortfall in achieving the budget.

The second ground of challenge is based on section 14 of the same act (the duty to report on progress towards the budget). It is alleged that the Net Zero Strategy does not explain how CB6 will be met, estimate the effect of the proposals’ contribution to meeting the budget and the timescales for doing so.

The third ground is that these breaches of the Climate Change Act 2008 would in turn contravene or risk contravention of human rights obligations.

The government’s defence (also published here by GLP) is essentially that ‘policies’ are the definite bit and ‘proposals’ are the not as definite bit, and even if the policies will only achieve 95% of the required cut in emissions, the rest will be achieved via proposals that will become policies by the time the relevant period is reached, and so the Net Zero Strategy is valid. The government says the challengers are trying to read words into sections 13 and 14 that aren’t there.

Is developing policies later sufficient? Taking it to extremes, what if the Net Zero Strategy just said ‘Our proposal is to develop policies between now and 2033 that will enable the sixth carbon budget to be met’ (ie it contains no policies at all but just a commitment to develop them)? That would not appear to satisfy the s13 obligation to prepare such proposals and policies as the Secretary of State considers will enable the carbon budgets to be met – even if not yet policy, the proposals would have to exist now beyond a bare commitment to develop policies, otherwise how can the government know they will enable achievement of the carbon budget?

We will see what the judge says when he issues his judgment, which is likely to be in two or three months’ time.