March 12, 2020
On 27th February 2020 the Court of Appeal ruled that the Government’s plan for Heathrow expansion – the ANPS or Airports National Policy Statement – was unlawful on the basis that it failed to take account of the Paris Agreement on climate change (the global commitment by signatories that includes almost every country in the world to limit the global temperature rise to well below 2 degrees).
It was a landmark judgment, the first ever to have the effect of blocking a major infrastructure project on the basis that it may be in conflict with the Agreement. The Secretary of State’s failure to take it into account was “legally fatal to the ANPS” the Court of Appeal found.
The Court of Appeal upheld the arguments made by both environmental organisation Friends of the Earth and campaigning legal charity Plan B Earth that the Government had failed to deliver its sustainable development duties under the Planning Act 2008. The relevant duties, claimants argued between them, related also to climate change impacts beyond 2050 (the end date of the UK’s current climate legislation, the Climate Change Act), and consideration of aviation’s non-CO2 impacts.
While there is scope for discretion in the factors that the Secretary of State would have been required to take into account in discharging these duties, the court found, some international obligations are “so obviously material” that they must be taken into account. “The Paris Agreement”, it said, “fell into this category”. In relation to the failure to consider the impact of non-CO2 impacts, the ruling states that “In line with the precautionary principle, and as common sense might suggest, scientific uncertainty is not a reason for not taking something into account at all, even if it cannot be precisely quantified at that stage.”
Commenting on its decision to declare the ANPS unlawful, the judgment states:
The legal issues are of the highest importance. The infrastructure project under consideration is one of the largest. Both the development itself and its effects will last well into the second half of this century. The issue of climate change is a matter of profound national and international importance of great concern to the public – and, indeed, to the Government of the United Kingdom and many other national governments.
The court’s judgment was not, it made clear a political one, and it has not ruled that the third runway itself would be unlawful. Nevertheless there are a number of reasons for us to feel hopeful that the ruling effectively takes Heathrow expansion off the table.
First, the Government has indicated that it will not appeal the ruling. While Heathrow Airport, an “interested party” in the case, has lodged an application to overturn the ruling at the Supreme Court (claiming that the court’s findings in relation to the failures of the NPS were “eminently fixable”), it is widely felt that this is unlikely to succeed without the Government’s support. Second, the public and political mood has shifted significantly since the NPS was voted through in 2018; both left and right-leaning newspaper editorials the next day (including The Times, the Financial Times and the Guardian) described the court’s judgment as the end of the line for Heathrow. And third, while many in the Conservative Party support the project, Prime Minister Boris Johnson had so fiercely opposed it during his time as Mayor of London that he famously promised that if need be he would lie down in front of the bulldozers to prevent it going ahead. The court’s judgment provides a very respectable means by which he could postpone indefinitely giving Government support to the project.
Several airports are expected to submit Development Consent Order applications this year, and Manston has already applied to reopen as a freight hub. This was the first DCO application to be submitted for any airport in the UK, and is currently being considered by the Secretary of State after an extension to allow for further assessment of a number of factors including climate change impacts.
In order to provide a policy position against which these and other future proposals can be assessed, it seems likely that the Government will seek to revise the ANPS with a view to addressing the flaws identified by the court, irrespective of any position it may take on Heathrow. Whether continuing to justify its support for Heathrow expansion as part of that revised ANPS will be as easy as Heathrow Airport claims is debatable, however. AEF has argued for years that the scale of expansion proposed by Heathrow is fundamentally incompatible with climate change objectives, and many expert commentators have, since the judgment, been expressing similar views. Devising a plan for Heathrow expansion that meets the requirement to cut our economy-wide emissions to net zero and takes account of aviation’s non-CO2 impacts would not, in our view, be an easy task.
A new NPS is not essential, however, for airports (in theory including Heathrow) making applications for expansion, whether under the DCO route (for larger infrastructure projects) or under the Town and Country Planning route (in which the decision is taken by the relevant local planning authority). While an NPS, which carries the support of parliament as well as the Government, provides a particularly strong basis for determining a DCO application, and therefore more certainty for investors, it is possible for these applications to be considered without reference to an NPS in which case they would simply need to take account of relevant government policy.
If the court action has the effect of preventing a third runway at Heathrow, then, does expansion at other airports become more likely? It is true that official aviation demand forecasts have anticipated higher growth at non-London airports if Heathrow did not expand than if the third runway proceeded, (making Heathrow’s claims that a third runway would benefit the whole of the UK ring hollow). On the other hand, not all the growth facilitated through Heathrow expansion would be likely to transfer to other airports (which is why expansion here would see a bigger increase in UK aviation emissions overall). And in any case, growth plans at those airports are unlikely to go ahead without resistance.
In addition to the local environmental impacts that often stand in the way of airport growth, climate concerns could increasingly be considered a relevant factor. Even before the Heathrow judgment, applications for growth at both Stansted and Bristol Airports have been turned down in recent months by local planning authorities who cited concerns about the climate impacts of the proposals, having recently made declarations of climate emergency. With the precedent of the Heathrow judgment, arguments against airport expansion that highlight the lack of any effective national policy for bringing UK aviation emissions into line with net zero commitments would seem to carry even more weight.
Meanwhile, the UK’s legal commitment to net zero emissions by 2050 in summer 2019 has changed the picture in terms of the maximum emissions from aviation that can be accommodated. While the Committee on Climate Change, the Government’s official advisers, had previously allowed for 37.5 Mt of CO2 being emitted by the aviation sector annually by 2050, now under the new more stringent legislation it’s modelling permits only 30 Mt, all of which would need to be balanced by CO2 ‘removals’, paid for by the aviation industry. If there was previously pressure on the total amount of UK airport growth could be allowed for, there’s now even less scope for any airport to increase its activity, let alone add a whole new runway.
The Government says it is considering its next steps in relation to the NPS. A White Paper setting out the Government’s strategy for aviation to 2050, including on climate change, is due out later this year, and the fact that the UK is hosting the next UN COP meeting may help to keep up the pressure for the Government to do something more meaningful in terms of tackling aviation emissions than the support for international offsetting measures that it has historically cited as a fudge for avoiding UK policy measures.
There is a chance that Heathrow may be successful at the Supreme Court in arguing that the Court of Appeal was wrong in its judgment. But our feeling is that the ground is now, finally, starting to shift on the issue of aviation and climate change, and that while there is still a lot of work to do to come up with the solutions, the fact that airport expansion can only take us in the opposite direction will in future seem like common sense.