Touchdown for Heathrow
Heathrow Airport Ltd has won the judicial review challenge brought by Friends of the Earth against the government's decision to give the green light for a third runway at Heathrow.
The Supreme Court overturned the Court of Appeal's ruling in February that the former transport secretary, Chris Grayling, failed to take the government's Paris Agreement commitments to tackling climate change into account in the Airports National Policy Statement (ANPS).
This judgment means that Heathrow Airport Ltd will now be able to proceed with its application for development consent for Heathrow's third runway.
The ANPS sets out the national policy which governs the construction of a third runway at Heathrow. It is significant because any application for development consent for the runway will be considered against this policy.
Unscheduled delays
The ANPS was designated as national policy in June 2018. At that time, the Climate Change Act 2008 had set a target of an 80% reduction in 1990 greenhouse gas levels by 2050. The government had also committed to the Paris Agreement, which was ratified in November 2016. The Paris Agreement enshrined a stronger international commitment to mitigating climate change and a clear aspiration of achieving net zero greenhouse gas emissions from 2050.
The judicial review claim against the controversial ANPS was pursued by the Mayor of London, five local authorities and several environmental groups. Having lost their case in the High Court last year, the claimants succeeded on appeal on one ground relating to climate change. On this point, the Court of Appeal held that the ANPS should have taken into account not just the government’s targets under the Climate Change Act 2008, but also the government's commitment to the Paris Agreement. In light of this, the Court of Appeal concluded that the ANPS was unlawful and of no legal effect. Heathrow Airport Ltd appealed to the Supreme Court.
Pushing back
The Supreme Court was satisfied that the Secretary of State acted rationally and in compliance with his legal obligations. The Secretary of State's report accompanying the ANPS referenced the UK's obligations under domestic and international law and the Court said he did not need to go into more detail.
The Court took a pragmatic approach to the appraisal of sustainability which was required with the ANPS. It explained that the purpose of the appraisal is to provide the basis for informed public consultation. The Climate Change Act 2008 targets were referred to in the appraisal and took the UK’s Paris Agreement obligations into account.
Buckle up
The Court unanimously concluded that the ANPS was lawful, meaning Heathrow can now apply for the various planning consents it needs to deliver the third runway. There's still some way to go of course, as the decision-makers will have to take the current climate change targets into account when determining the Development Consent Order and campaigners are threatening to take the issue to the European Court of Human Rights.
Such is the pace of change, that since the Supreme Court hearing, the government has announced its commitment to meeting enhanced net zero emissions targets, including a 68% net reduction in emissions by 2030. Pressure remains on decision-makers when approving major projects in line with these overarching climate targets.
Upgrading national policy
Although Heathrow Airport Ltd ultimately succeeded, this judgment is unlikely to dissuade campaigners from finding fruitful grounds for legal challenge against other major infrastructure projects because of the inherent tensions arising from sustainable development.
The third runway saga has been an extremely controversial one and has thrust the impact of major infrastructure projects on climate change into the spotlight. Going forward, the government will presumably work hard to ensure that new national policy statements tick all the necessary legal boxes, particularly those with an environmental/climate change angle. Whilst the Supreme Court decided in its favour, a lot of time and money has been spent defending the ANPS and there's still a long journey ahead. We'll continue to track it and keep you posted.
