948: Another carbon legal challenge fails and a closer look at the non-regression principle in the Levelling Up and Regeneration Bill

Today’s entry considers the failed legal challenge relating to Southampton Airport and takes a closer look at the ‘non-regression principle’ in the Levelling Up and Regeneration Bill.

Lift off

The High Court has rejected a challenge to the grant of planning permission for the extension of a runway at Southampton Airport. There are interesting grounds relating to legitimate expectations, and whether the NPPF can assist in giving less weight to a clear local policy (which prevented expansion of the runway) – all of which failed – but there are three points worth noting in relation to carbon, given the relevance to DCO projects.

First, and most importantly, are the comments around the carbon assessment produced by the promoter, and considered by the local planning authority (Eastleigh Borough Council). The EIA regulations require consideration of the likely significant effects arising from ‘the cumulation of effects with other existing and/or approved projects’. Mr Justice Holgate doesn’t take a conclusive view on what an ‘existing or approved project’ is (‘I see strengths and weaknesses in the arguments of both parties’, and he felt he could not decide the point without ‘full argument’, a conclusion which he says is ‘unfortunate.. given it was predictable that this issue would be relevant’) – but he does take a swipe at some approaches.

In this context he notes Advice Note 17 – which applies to DCO projects – issued by the Planning Inspectorate. That guidance suggests that the phrase ‘existing and/or approved projects’ should consider the certainty of the projects in question – for example, if a project is under construction it is labelled as ‘Tier 1’ and should be afforded a high degree of certainty, whereas a project which merely has a scoping opinion is Tier 3 – see Table 2, and the proceeding text which sets out how professional judgment should be used. Mr Justice Holgate said that the approach in the Advice Note ‘does not assist the court’ in determining which projects fell within the rubric of ‘existing projects’.

He is also dissatisfied with European Commission guidance (which refers to ‘reasonable foreseeable actions’ within a 5 year period) and guidance issued by DCLG as it was then (which refers to the need to have regard to ‘proposals’ being considered at the same time). Mr Justice Holgate says all of this guidance ‘raises questions, rather than supplies answers’. The reason this issue was relevant at all was because the claimants, challenging the grant of planning permission, were arguing that other airport developments should have been considered in the assessment. Clarity on this issue will have to wait for another case.

Second, it is clear the courts (and the Secretary of State – as shown in the M54 Link Road, M25 Junction 10 and M25 Junction 28 decisions, as well as the Bristol Airport appeal decision) are coalescing around an acceptable approach to carbon assessments. On this project, the assessment concluded that the expansion of the runway would lead to a contribution of up to 0.14% to the carbon budgets (as well as up to 1.25% of the various aviation targets). They followed the IEMA guidance which for our purposes notes that (i) no criteria or thresholds have been set to measure the significance of GHG measures; and (ii) professional judgment should be used to contextualise a projects GHG impact. The claimants challenged this approach, arguing that contextualising the emissions by working out the percentage contribution to national budgets was inappropriate.

Mr Justice Holgate is quite disparaging of the claimants argument (‘there is an air of unreality about the claimants criticisms’ – ouch!). He concludes:

The IEMA rightly pointed out that no criteria or thresholds had been set by which to measure the ‘significance’ of the GHG emissions from a particular proposal. Furthermore, no one has suggested that there was any guidance for assessing the acceptability… of that contribution, whether expressed as a percentage of national budgets or targets or otherwise. In other words, acceptability is for the judgment of the decision-maker. As a matter of principle there is nothing unlawful in a decision-maker using benchmarks he considers to be appropriate in order to help arrive at a judgment on those issues.

There is simply no legal merit in the complaint that expressing project emissions as a percentage of a national budget or target does not enable a decision-maker to decide whether those emissions are compatible with achieving that benchmark or whether those emissions are ‘affordable’…. On the basis of current policy and law it is permissible for a planning authority to look at the scale of the GHG emissions relative to a national target and to reach a judgment, which may inevitably be of a generalised nature, about the likelihood of the proposal harming the achievement of that target.

Mr Justice Holgate is similarly dismissive of the argument around assessment against what is known as the ‘Planning Assumption’ (this is an assumption that aviation would contribute 37.5Mt of CO2 by 2050; an assumption made in reaching an 80% reduction in carbon emissions by 2050, rather than 100% (as is the case now)). The short of it was that the assessment did consider that assumption, but on a technical point of whether the assessment should have looked as passengers numbers or looking at where those passengers were going on, Mr Justice Holgate considered there was a degree of discretion afforded to the local planning authority.

Third, the High Court is clearly ‘troubled’ by the attempt by the claimant to make their arguments having never suggested an alternative method of assessing significance during the consultation process. The refusal of the ground did not turn on this point but you might read the judgment as breaking the fourth wall: ‘the object and structure of the statutory scheme is to encourage the identification of weaknesses or deficiencies in an ES before the decision on consenting is taken, rather than afterwards.’  Mr Justice Holgate states plainly ‘the absence of any contemporaneous complaint about the adequacy of the ES is itself an indication of the unrealistic and unpersuasive nature of the subsequent legal challenge’.

Tell us what you really think, Mr Justice Holgate!

Incidentally, the government has published Flightpath to the Future – a policy looking at how aviation can be restored post-COVID. Related to the carbon discussion above, it seemingly emphasises the need for Government to use  ‘carbon markets and greenhouse gas removals to drive down emissions in the most cost-effective way’, and alludes to  the UK Emissions Trading Scheme rather than project-specific controls.

A closer look at the environmental non-regression principle

We previously discussed the proposals for replacing the EIA regime in the Levelling Up and Regeneration Bill. The replacement regime will require Environmental Outcomes Reports (EOR). We noted that much of the detail will be set out in ‘EOR Regulations’ which set out the ‘relevant consents’ (in respect of which EORs will be required). There are also powers for EOR Regulations to set out a number of matters which must/may be included in an EOR. Clause 120 makes clear these EOR regulations can only made if the Secretary of State is satisfied that ‘making the regulations will not result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law at the time this Act is passed’.

Meanwhile, the Financial Times reports that the EU is ‘preparing to loosen its environmental regulations as it seeks to replace Russian fossil fuels with renewable energy and imported hydrogen power’. In particular, promoters would ‘be allowed to build wind and solar projects without the need for an environmental impact assessment’. The draft directive published by the EU sets out that EIA is not required (see new article 16c) provided there are “appropriate rules.. including on the mitigation measures to be adopted for the installation of renewable energy plants, co-located energy storage facilities, as well as assets necessary for their connection to the grid, in order to avoid or, if not possible, to significantly reduce the negative environmental impacts that may arise’ (article 15c(1)).

Why are these two things connected? Well, if environmental legislation – including EIA – which applies to the UK does not change between now and when the Bill is enacted, we are left in the slightly odd position that the proposed non-regression provision (assuming enacted as drafted) could be read as tying us to EU-derived environmental protections which the EU is itself suspending. Note that just because the EU changes the law for EU member states, this does not follow through into UK domestic law (courtesy of the European Union (Withdrawal) Acts 2018 and 2020).

Could the government argue that similar exemptions wouldn’t lead to the ‘overall level of environmental protection’ being reduced? The Bill contains a power to direct EORs are not required ‘solely for the purposes of national defence or preventing or responding to civil emergency’ – it could be a stretch to argue that provision applies in relation to energy costs. True, the Bill contains the power for EOR regulations to ‘provide for further circumstances in which the Secretary of State is to be able to direct that no environmental outcomes report is required to be prepared’ but that is caught by the non-regression clause.

I call this position slightly odd because rather than taking back control, the non-regression principle may lead to a situation in which EOR Regulations are tied to EU-derived protections, whilst the EU itself loosens those protections. Is this really the intention of this particular government?