Disputes Quick Read: Climate change litigation – successful challenge to government's Net Zero Strategy

Quick read

The High Court has held that the government's Net Zero Strategy is unlawful and, in some respects, inadequate. The government has been ordered to produce a new, more detailed version of the Net Zero Strategy by March 2023.

The challenge, made by Friends of the Earth, ClientEarth and Good Law Project, was that in setting the Net Zero Strategy, the Secretary of State had not acted in accordance with their legal duties, as laid down in the Climate Change Act 2008.

The Climate Change Act (CCA) requires the government to achieve net zero by 2050. The Act also imposes shorter-term obligations on the Secretary of State: they must set a carbon budget every five-years and publish policies on how they will meet these budgets. These policies (ie the Net Zero Strategy) must be presented to Parliament.

The main grounds of challenge were that:

the Secretary of State had not been fully briefed by their department before signing off the Net Zero Strategy
the Net Zero Strategy did not contain enough information about how the policies would reach net zero.

The claimants won on both grounds.

The Secretary of State had been legally obliged to consider certain information when setting the Net Zero Strategy, including:

the amount by which each policy was expected to reduce emissions
which policies were being relied on to make up a 5% shortfall in the carbon budget.

This information was missing from the Secretary of State's briefing, and therefore they could not have taken it into account when the Net Zero Strategy was approved. This was unlawful.

The same information was also missing from the Net Zero Strategy itself. This meant that Parliament, and the wider public, were not able to properly understand how the government intended to meet its statutory net zero target. The court concluded that the Net Zero Strategy was too vague and needed to be published again with more detail.

Comment

The decision is noteworthy because the Court has intervened and ordered the government to republish the Net Zero Strategy with more detail.

The judge emphasised that the Court's role is to ensure that the government follows the procedure laid down in the CCA. It is not to review the efficacy of the policies in the Net Zero Strategy, or to make political, social or economic choices about how to achieve net zero.

Nevertheless, in this case the CCA was interpreted in a way that placed a more substantial burden on the Secretary of State regarding the way in which the Net Zero Strategy was reached.

When writing about this case in March this year, we predicted that judges might be cautious about taking on that sort of mandate quite so soon. This decision demonstrates, however, that attitudes towards climate-related disputes are developing and that courts may be more receptive to these types of challenges in the future. Specifically, it shows an increasing acceptance by the UK judiciary of a supervisory role over the government's progress towards net zero, by ensuring meaningful compliance with the CCA.

Courts elsewhere in the world have also proved willing to uphold climate change challenges against governments. Most notably, the Dutch Supreme Court ruled in 2019 in Urgenda that the Dutch Government has a legal duty to take climate mitigation measures, and to reduce emissions by 25% by 2020 (compared with 1990 levels).

This case was not as groundbreaking as Urgenda, but it fits into a general global trend of courts playing an increasing role in the fight against climate change.

A full judgment and a summary of the judgment can be found here.