This appeal concerned the 2018 designation of the Airports National Policy Statement, which supported a third runway at Heathrow. The Supreme Court examined the climate policies and evidence the Secretary of State had to consider at that stage. A separate development consent process would be needed before a runway could be built.
The appeal concerned the Airports National Policy Statement (ANPS) designated by the Secretary of State for Transport on 26 June 2018 under section 5 of the Planning Act 2008. The ANPS provides the policy framework for any later application for a development consent order for the North West Runway scheme at Heathrow, promoted by Heathrow Airport Ltd. It does not itself authorise construction. The Airports Commission had concluded in 2015 that additional South East runway capacity was needed by 2030 and that the North West Runway, with environmental measures, was the preferred option. The Government accepted that case and used the national policy statement procedure after consultation and a Commons vote approving the ANPS by 415 votes to 119.
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Climate policy was developing alongside airports policy. The Climate Change Act 2008 then required an at least 80 per cent reduction in the net UK carbon account by 2050 and carbon budgets; international aviation emissions are generally excluded from the account but must be taken into account when budgets are set. The Paris Agreement, adopted in December 2015 and ratified by the United Kingdom in November 2016, aims to hold the global temperature increase well below 2°C and to pursue efforts to limit it to 1.5°C. It did not itself impose a binding domestic target beyond each party’s nationally determined contribution. The relevant contribution was less stringent than the United Kingdom’s existing fourth and fifth carbon budgets. The Committee on Climate Change advised in 2016 that new domestic targets should not be set immediately, and Government policy on aviation emissions remained under development when the ANPS was designated.
Friends of the Earth and Plan B Earth challenged the designation. The Divisional Court rejected the claims. The Court of Appeal held that the ANPS was of no legal effect because the Secretary of State had unlawfully failed to take the Paris Agreement into account, and also failed properly to address post-2050 and non-CO₂ effects. Heathrow Airport Ltd, which had invested in promoting the scheme, appealed; the Secretary of State did not. Lords Hodge and Sales gave the judgment, with which Lord Reed, Lady Black and Lord Leggatt agreed.
What counts as Government policy
Section 5(8) of the Planning Act 2008 requires the reasons for a national policy statement to explain how it takes account of Government policy on mitigating and adapting to climate change. The Court held that this means a readily identifiable, established policy, typically a carefully formulated written statement, rather than every ministerial remark or an unincorporated treaty. A statement would at minimum have to be clear, unambiguous and free of relevant qualification. Statements in March 2016 that the question was not whether but how to enshrine a net-zero goal did not meet that test: they did not state temperature targets and left important questions open. Ratification created international obligations but was not itself a domestic policy commitment. In June 2018 the Government was still following the Committee on Climate Change’s advice and developing its response, including its aviation strategy. There was therefore no established Government policy beyond the Climate Change Act framework that section 5(8) required to be explained.
Climate change and sustainable development
Section 10 requires the Secretary of State, when designating a national policy statement, to act with the objective of contributing to sustainable development and in particular to have regard to the desirability of mitigating and adapting to climate change. Unlike section 5(8), this duty is not confined to Government policy. Sustainable development also involves economic and social objectives. International obligations that have not been incorporated into domestic law fall within the category of considerations the decision-maker may take into account. Omitting a consideration in that category is unlawful only if it was so obviously material that the omission was irrational; if the decision-maker considers it but gives it no or limited weight, the question is likewise one of rationality.
On the evidence, the Secretary of State did not ignore the Paris Agreement. Officials followed the Committee on Climate Change and treated the existing Climate Change Act target and carbon budgets, which already met and went beyond the relevant nationally determined contribution, as the correct basis for assessment. The ANPS required any later application to be assessed against the carbon-reduction targets, including carbon budgets, applicable at the time of the development-consent decision, not those current in 2018. The Court held that relying on that domestic framework, while keeping future changes under review and preserving the ability to amend the statement or depart from it at the consent stage, was plainly rational. It was unnecessary to decide whether a complete failure even to consider the Paris Agreement would have been unlawful, because that was not what occurred.
The environmental report
The strategic environmental assessment was essentially procedural. The appraisal of sustainability was the environmental report. Although the Paris Agreement was omitted from an early scoping list, the report and draft statement addressed the Climate Change Act duties. The Secretary of State had a discretion, under the qualification that the report need include only information that may reasonably be required, as to the level of detail and the stage at which matters are best assessed. Adequacy is reviewed on ordinary rationality grounds, not by substituting the court’s view or demanding perfection. Following the Committee’s advice and not adding a speculative distinct treatment of future Paris-related targets was rational. Consultation responses about climate commitments were in any event considered before designation.
Later emissions and non-carbon effects
The same rationality standard applied to the claim that post-2050 emissions and non-CO₂ aviation effects had to be addressed more fully in the ANPS. Carbon emissions for the shortlisted schemes had been modelled over a 60-year period to 2085/86. It was not irrational to decline to judge those later emissions against policies and targets that had not yet been formulated, particularly because a development consent order would be assessed against the law and policy then in force and could be made subject to requirements. Non-CO₂ effects, including nitrogen oxides and contrail-related warming, were acknowledged, but scientific uncertainty and the lack of an agreed forecasting metric meant they were not quantified. That approach was consistent with the Committee on Climate Change’s advice and with the statement that the applicant would have to assess significant climate factors under the rules current at the consent stage. The Court of Appeal’s reference to the precautionary principle and common sense did not establish irrationality.
Verdict: The Supreme Court unanimously allowed Heathrow Airport Ltd’s appeal on all four substantive grounds. It restored the legal effect of the policy statement. It did not grant development consent for the runway or decide how a later application should be determined.
Source: R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52
