993: New Net Zero Challenge, New Government Infrastructure Groups and the lessons of the Millennium Dome

Today’s entry looks the new Net Zero Strategy challenge, a Parliamentary debate on section 35, a new ministerial group looking at infrastructure and the lessons of the Millennium Dome.

‘Oh, not another one!’

So said Brenda from Bristol. There is another legal challenge to the government’s Net Zero Strategy. Readers will recall that in October 2021, the government published a document called ‘Net Zero Strategy: Build Back Greener’. The previous challenge was essentially that the Net Zero Strategy did not comply with section 13 or section 14 of the Climate Change Act 2008, respectively. Section 13 is about preparing a strategy for each carbon budget, and section 14 is about reporting on the proposals in the strategy and their timescales.

It was revealed in pre-trial documents that the quantified policies in the NZS would only achieve 95% of the required emissions reductions, ie be short by about nine million tonnes of CO2 equivalent per year. The remaining 5% would be met by ‘planned policy work to identify further options over the coming years’. The 95% and 5% were referred to as the quantitative and qualitative elements, respectively.

What did cause the High Court to declare the Net Zero Strategy unlawful was the information the minister was provided with in approving it, or rather, what he wasn’t. He was given the 95% figure and a list of policies, but not what contribution each policy made towards that figure (208), nor the timescales that each policy would take to achieve its contribution. He was given the 5% figure, but not what and how further policies and proposals would achieve it. Mr Justice Holgate, who issued the judgment, is very keen on identifying ‘obviously material considerations’ that were missed, and these fell into that category. Not knowing each policy’s contribution meant the Secretary of State couldn’t decide what the risk of non-achievement was, which was obviously a material consideration.

Mr Justice Holgate, ordered that the Government provide an update to the Net Zero Strategy by the end of Q1 in 2023. The revised Net Zero Strategy, which is supposedly the Net Zero Growth Plan part of ‘Powering Up Britain,’ still falls short of the sixth carbon budget in terms of quantified savings. The NZS successfully challenged in July 2022 exceeded the budget by about 45MT from quantifiable savings, with the extra savings to be found from ‘qualitative’ judgment.

The new one is still 32MT short, but the judgment never required fully quantifiable savings. Indeed, an element of the challenge was that the quantitative element should amount to at least 100% of the reductions needed, and leaving any of it to later policy development was unlawful, but that was not successful. The judge did note that the greater the shortfall, the more cogent the qualitative analysis would need to be and the more difficult that would be to achieve.

Friends of the Earth’s challenge now alleges the updated Net Zero Strategy lacks detail on the risk of policies failing to deliver the emissions cuts needed for the sixth carbon budget. In particular, the challenge is honing in on the fact that the government only has ‘high confidence’ in policies covering 40% of the emissions savings required by the end of that budget in 2037. It will be for the government to show that the lower levels of confidence in the remaining 60%. The Times reveals a reason this may be challenging: a leaked document from Defra has shown that 21 of 44 of its net zero policies, including tree planting and peatland restoration, ‘would be hard to achieve’.

A debate on section 35 directions and a new ministerial group for infrastructure

We previously noted that there was an amendment proposed in the Levelling Up and Regeneration Bill that would require consideration on whether to revoke a section 35 direction for a project (ie, a direction that said a project was a project of national significance notwithstanding it didn’t meet the NSIP thresholds under the Planning Act 2008).

A debate was held on whether this amendment should be progressed. The Government batted away the amendment – on the basis that there is an existing power to revoke section 35 directions under section 232 of the Planning Act – but interestingly, the debate highlighted progress on the ‘IMG’ (presumably inter-ministerial group) on infrastructure:

‘We are currently working to set this up. Minister Rowley is setting up an IMG that will look at the cross-cutting issues on projects, but he cannot get involved in the specifics of projects in order not to prejudice, obviously, future decision-making, particularly as a Planning Minister.’

This is to be commended; infrastructure is a cross-cutting issue and requires intra-governmental coordination. I’m reminded that John Prescott, when he was Deputy Prime Minister, had a super portfolio covering transport, housing, local government, planning, and egg-related crime. Perhaps that’s not such a bad idea?

Speaking of John Prescott, and by the by, I recently had cause to obtain the very first and original planning permission for the Millennium Dome – it’s a fascinating document. The conditions give an insight into how things have changed in stringency: there are requirements to construct ‘environmentally sympathetically landscaping’, ‘suitable and sufficient historical searches’, ‘where deemed necessary.’ XYZ should not happen. All relatively flexible language, though there is still a relatively specific condition about wheel-washing. One wonders whether we need to look back on major permissions like this in the context of DCO projects.

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