Heathrow's third runway: Judiciary commits to the climate

The addition of a new runway and the expansion of Heathrow airport have been at the forefront of environmental concerns for years. Accordingly, the Court of Appeal’s recent judgment, finding the government’s Airport National Policy Statement (ANPS) in respect of Heathrow airport unlawful in its present form, has been welcomed by green campaigners as a major step towards shaping future public policy and forcing the government to give careful consideration to its climate change commitments when determining infrastructure strategy.

The Court of Appeal judgment dealt with three appeals from the divisional court brought by a combination of local authorities, the mayor of London and various environmental organisations. There were three issues before the court, and while the Court of Appeal upheld the divisional court’s decision in respect of the first two issues relating to environmental directives, it overturned the decision relating to climate change. In what was said by some to be a watershed moment, the court deemed the government’s ANPS as being unlawful because it failed to take into account the government’s climate change commitments under the 2015 Paris Agreement, which was ratified by the UK in November 2016. The Paris Agreement is an international treaty signed by a number of countries (including the UK) to address the threat of climate change by a commitment to restrict the increase in global average temperature to “well below 2°C above pre-industrial levels and [to pursue] efforts to limit the temperature increase to 1.5°C above pre-industrial levels”. This is combined with an aspiration to achieve net zero greenhouse gas emissions during the second half of the 21st century. The UK is also subject to a net- zero carbon emissions target contained in the Climate Change Act 2008. The secretary of state failed to take the Paris Agreement into account when drafting the ANPS, and the court said that this failure was “legally fatal to the ANPS”.

It is certainly too early to pronounce the death knell to Heathrow’s third runway

The government has already said it will not be appealing against the decision and has suggested an appeal should be industry-led. At the time of writing this article, an interested party has already confirmed that it will be appealing against the decision to the Supreme Court – so although it is unlikely, the decision may be overturned. Alternatively, while not appealing against the decision the government could review the ANPS in light of the UK’s commitments. While this might take a number of months, it is certainly too early to pronounce the death knell to Heathrow’s third runway.

However, the Court of Appeal’s decision has certainly provided encouragement to environmentalists. Chris Packham, the well-known campaigner, has instructed lawyers to issue a pre-action protocol letter alleging that the government failed to give sufficient consideration to environmental concerns in terms of the Paris Agreement in relation to HS2. Additionally, the Transport Action Network is already believed to be looking at ways it could force the government to re-evaluate its transport policy, perhaps by seeking the cancellation of new roads by forcing a review of the National Networks National Policy Statement (NNNPS) and also setting its sights on the Department for Transport’s road appraisal system. Equally, the decision is being closely looked at by infrastructure contractors and consultants. It is clear that future and indeed current investment will need to be looked at through the pursuit of a net-zero carbon economy, with sustainable development no longer simply being a catchphrase.

This is perhaps a Herculean task

It is not just the UK courts that are forcing their government to face up to its climate change commitments. Late last year the Dutch supreme court ordered the Dutch government to cut emissions by 25% by the end of 2020. This is perhaps a Herculean task for a country where the most recent official figures showed only a 15% drop in 1990 emissions levels by 2018. While the Dutch court has confirmed that the Dutch government is free to determine how it will meet this goal, by any analysis, this is likely to be difficult to achieve where major emission sources are energy, transport and manufacturing. 

Irrespective of views on climate change, it is clear that from a legal perspective the UK courts will seek to hold our government to account. Additionally, there is every reason to think that these two decisions will be reflected by the judicial systems of other signatories to the Paris Agreement. It is likely that other governments will be equally concerned about their ability to meet climate change commitments under the Paris Agreement, particularly where failure may result in sanctions being enforced by the courts.

Sheena Sood is a senior partner at Beale & Co