UK SC | Amid the controversies surrounding the environmental impact of constructing a third runway at Heathrow Airport, SC discusses the fundamentals of “Government Policy” || Detailed Report

Supreme Court of United Kingdom: While deciding the instant case concerning the framework which will govern an application for the grant of development consent for the construction of a third runway at Heathrow Airport, the Bench of Lord Reed (President), Lord Hodge (Deputy President), Lady Black, Lord Sales and Lord Leggat reversed the decision of the Court of Appeal which held that the Government policy on airport expansion at Heathrow was unlawful on environmental grounds thereby clearing the way for the construction of the new runway (which is a part of the developmental scheme promoted by Heathrow Airport Ltd. The observations of the Bench were largely focused on clarifying the “minimum must haves” in a Government Policy

Facts and Trajectory of the case:

The instant appeal deals with the lawfulness of the Airports National Policy Statement (ANPS) and its accompanying environmental report. In 2016 the UK signed and ratified the Paris Agreement under the United Nations Framework Convention on Climate Change. The agreement sets out various targets for the reduction of greenhouse gas emissions, particularly carbon dioxide, and the reduction of temperature increases resulting from global warming (Paris Agreement Targets). Two ministers –Andrea Leadsom MP and Amber Rudd MP, made statements about the Government’s approach to the Paris Agreement in March 2016, after which Secretary of State designated the ANPS as national policy in 2018. The ANPS is the national policy framework which governs the construction of a third runway at Heathrow Airport. Friends of the Earth Ltd. and Plan B Earth challenged the lawfulness of the Secretary of State’s designation. The Court of Appeal held that Secretary of State had acted unlawfully in failing to take the Paris Agreement into account when designating the ANPS, therefore the ANPS has no legal effect. Aggrieved by CoA’s decision, the Heathrow Airport Ltd. (HAL) preferred an appeal to the Supreme Court contending that it has already invested a large sum of money in promoting the North West Runway scheme and wishes to make an application for development consent to carry the project through.

Observations:

Friends of the Earth Ltd. and Plan B Earth contended before the Court that the reasons in the ANPS needed to refer to the Paris Agreement Targets in order to comply with section 5(8) of Planning Act, 2008. It was further contended that the Secretary of State breached his duty under Section 10(2) and (3) of the Planning Act, 2008, which requires him to designate national policy frameworks with the aim of contributing to the achievement of sustainable development. He has to take into account the environmental (especially climate change), economic and social objectives that make up sustainable development.

Perusing the facts and contentions of the instant appeal, the Court unanimously rejected the arguments made by Friends of the Earth Ltd. and Plan B Earth. The Bench noted that Sections 5(1) and 5(7) of the Planning Act, 2008 provides that national policy frameworks such as the ANPS must give reasons for the policy adopted. Section 5(8) states that these reasons must include an explanation of how that policy takes account of existing “Government policy” relating to the mitigation of and adaptation to climate change. The Court observed that, “The meaning of Government policy is a matter of interpretation of the statutory provision. The phrase needs to be construed relatively narrowly in context to allow Section 5(8) to operate sensibly. Otherwise it would create a ‘bear trap’ for civil servants and ministers, who would have to consider all ministerial statements given in any context which might be characterised as ‘policy’ in a broad sense. The Court further explained that “Government policy” in the context of Section 5(8) refers to carefully formulated written statements of policy which have been cleared by the relevant departments on a Government- wide basis. The epitome of “Government policy” is a formal written statement of established policy. The absolute minimum standard is a statement which is clear, unambiguous, and devoid of relevant qualification. Based on this rationale, the Court refused to consider that the statements made by Andrea Leadsom MP and Amber Rudd MP met the minimum standards which define a ‘Government Policy’ as, “They were not clear, did not refer to the Paris Temperature Targets at all, and did not explain how the Paris Agreement goal of net zero emissions would be incorporated into UK”.

The Court also rejected the argument that the Secretary of State breached his duty Section 10(2) and (3) of the Planning Act, 2008. It was observed that there is sufficient evidence to show that the Secretary of State took the Paris Agreement into account and, to the extent that its obligations were already covered by the measures in the Climate Change Act, 2008, ensured that these were incorporated into the ANPS framework. The Court further observed that, “The ANPS was carefully structured to ensure that when HAL applied for development consent to construct the runway, it would have to show at that stage that the development would be compatible with the up-to-date requirements under the Paris Agreement and the CCA 2008 measures”. [R v. Heathrow Airport Ltd. [2020] UKSC 52, decided on 16-12-2020]


Sucheta Sarkar, Editorial Assistant ahs put this story together

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