884: Supreme Court reverses Airports NPS judgment, other news and a Christmas competition

Today’s entry reports on the Supreme Court judgment on the Airports National Policy Statement and other news.

On Wednesday 16 December 2020 the Supreme Court issued its judgment on the appeal against the cancellation of the Airports National Policy Statement, which embodied the policy of support for a new runway at Heathrow Airport.

The court reversed the decision of the Court of Appeal, which itself had reversed the decision of the High Court – in other words the NPS is reinstated. The judgment can be found here, and here is a summary and analysis.

After a lot of introductory text we get to the findings from paragraph 101 onwards, but it is worth noting one preliminary point.

At paragraph 98 the judgment notes that although the NPS reflected the policy situation when it was designated in 2018, when the application for a Development Consent Order (DCO) comes to be made it will be assessed against carbon budgets and other policies in place at that time, not 2018.

At paragraph 105 the court had a sound bite: policy must be in identifiable written statements otherwise it is a ‘bear trap’ that a Minister might have said something that is then said to be policy.

At paragraph 106 the court concluded that the statements of Andrea Leadsom and Amber Rudd in 2016 were not sufficiently ‘clear, unambiguous and devoid of relevant qualification’ to count as policy.

At paragraph 108 it concluded that the Paris agreement was not policy itself, it does not operate on the plane (sic) of domestic law, citing their Miller Brexit judgment.

At paragraph 110 it noted that Heathrow Airport Ltd was wrong to say that only if section 1 of the Climate Change Act 2008 (ie the net zero target) was amended did policy change, there were other ways it could.

At paragraph 124 it concluded that the section 10 ground (that the NPS actively did not take the Paris agreement into account) failed because the then section 1 of the Climate Change 2008 target was already potentially compatible with the Paris agreement, according to the Climate Change Committee. In my view this is the weakest point of the judgment, effectively saying that although the government got legal advice not to take the Paris Agreement into account, they had in fact done so, almost without realising it.

At paragraph 125 it said that it was therefore not a case of ignoring the Paris Agreement, but of giving it limited weight.

At paragraph 146 on the Strategic Environmental Assessment ground, the contents of the Environmental Report were not irrationally inadequate, and indeed too much ‘defensive drafting’ would drown the public in unhelpful detail.

At paragraph 155 on post-2050 emissions, the court held that these were in fact taken into account (up to 2086, at least, the design life of the runway).

Finally, at paragraph 165 the court held it was not irrational not to take non-CO2 emissions into account.

So the policy of a new northwest runway at Heathrow is now unassailable. However, as the judgment notes in several places, not least paragraph 98 referred to above, Heathrow Airport Ltd still needs to apply for a DCO, and that will be examined and decided upon based on the climate change policy at that time. As recent blog posts have noted, these have ratched up considerably in recent weeks, and by the end of June next year the government will have to decide whether to adopt the Climate Change Committee’s recommendation that international aviation be included in the carbon budget spanning 2032-2037.

Furthermore the Prime Minister continued to be lukewarm towards the project, with his press secretary saying the ‘point the PM would make now’ was that ‘any expansion must meet strict criteria on air quality, noise and climate change and the government will come forward with a response shortly’.

Other news

While on the topic of air quality, in possibly a world first, the Inner South London Coroner, Philip Barlow, concluded that air pollution was one of the causes of the death of nine-year-old Ella Adoo Kissi-Debrah in February 2013, as stated in his report.

Temporary coronavirus relaxations made permanent

Also on Wednesday 16 December the government laid a statutory instrument in Parliament that makes permanent the temporary relaxations of rules requiring physical document inspection that were made in the summer due to the coronavirus pandemic and were going to expire on 31 December. The statutory instrument can be found here.

That is to be welcomed, and can be contrasted with the town and country planning equivalent, which on 3 December was extended for a further year rather than being made permanent, via this statutory instrument.

Christmas competition

Finally, the annual Christmas competition! To be eligible to win a bottle of champagne, please answer the questions below, find the hidden NSIP, and send your answers to [email protected] by Thursday 7 January 2021. All-correct answers will be drawn from a virtual hat to select a winner, or if no-one is correct I’ll drink the champagne myself.

1. Which pop group had hits such as ‘Where is the love?’, ‘Shut Up’ and ‘Boom Boom Pow’?;
2. What phrase (3,3,4) describes a theory for the origin of the universe coined by Fred Hoyle?;
3. Which actor played Oskar Schindler in ‘Schindler’s List’, Bryan Mills in ‘Taken’ and Daniel in ‘Love, Actually’?;
4. What name is shared by the wives of Henry II, Henry III and Edward I?;
5. What method of restarting a football match is governed by Law 15 of the Laws of the Game?;
6. What condition is ‘caspa’ in Spanish, ‘Schuppen’ in German, and ‘forfora’ in Italian?; and
7. What country’s capital is Yerevan?