Stopping climate change can't be a lie we tell our children

by Good Law Project

Stopping climate change can't be a lie we tell our children

by Good Law Project
Good Law Project
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We are working with the noted environmentalist Dale Vince to bring this key challenge.
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Latest: March 22, 2021

Why won’t the Secretary of State make basic commitments?

We believe that the Airports National Policy Statement (NPS) needs to be updated to take account of the NetZero target in the Climate Change Act. The NPS is the key policy document which sets out the…

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"The UK has set a world–leading net zero target, the first major economy to do so, but simply setting the target is not enough – we need to achieve it. Failing to act will result in natural catastrophes and changing weather patterns, as well as significant economic damage, supply chain disruption and displacement of populations."

Those are the words earlier this month of the Rt Hon Alok Sharma MP, the Secretary of State for Business, Energy and Industrial Strategy. 

And we intend to hold the Government to this statement.

In March of this year we wrote to Alok Sharma asking him to commit to reviewing the Energy National Policy Statement in light of the Government's commitment to a net-zero target.  Our planning frameworks, we said, could no longer presume in favour of carbon-emitting energy infrastructure. He refused to do so, and so we commenced legal proceedings. Earlier this week he conceded and the Energy NPS will be reviewed. 

As things stand, Heathrow Airport could seek permission to expand under the lax planning regime created before the Government set its "world-leading net-zero target". We think that's unlawful. We think Government needs to revise the "Airports National Policy Statement" to take account of the net-zero commitment in section 1 of the Climate Change Act 2008. The legal point in this challenge is fundamentally identical to that on which Mr Sharma conceded in our March challenge.

We wrote yesterday to the Secretary of State for Transport, Grant Shapps, making that point and inviting him to agree to review and update the Airports National Policy Statement before he is asked to grant a Development Consent Order to the expansion of Heathrow Airport. If he refuses, we will issue judicial review proceedings with a request for urgent determination. 

We are, of course, aware of the recent Supreme Court decision on Heathrow but the Supreme Court was careful to confine its reasoning to the legal regime that existed in 2018 - before the net-zero target was introduced.

Boris Johnson won't need to "lie down in front of those bulldozers and stop the construction of that third runway." He'll merely need to ensure that the proposed development of Heathrow is considered under the legal regime that prevails today.

It's not too late to stop Heathrow expansion.

Details 

Good Law Project and Dale Vince have instructed leading international firm Hausfeld & Co LLP. Hausfeld will be paid nothing unless the litigation succeeds. Our Counsel team is Phillippa Kaufmann QC and Alex Goodman (the latter of whom we instructed on our successful Energy NPS challenge) who are being paid at significantly below market rates.

10% of the funds raised will be a contribution to the general running costs of Good Law Project. If there is a surplus it will go to support and enable other environmental litigation we bring.

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Update 3

Good Law Project

March 22, 2021

Why won’t the Secretary of State make basic commitments?

We believe that the Airports National Policy Statement (NPS) needs to be updated to take account of the NetZero target in the Climate Change Act. The NPS is the key policy document which sets out the Government’s approach to an application for permission (technically for a “Development Consent Order” (or DCO) to expand Heathrow. 

Over the last few weeks we have sought to engage with the Secretary of State around the question of whether he will agree to update the NPS. Although we think this should be a straightforward decision, we appreciate that the Secretary of State may wish to think it through. But our concern is that, meanwhile, the operators of Heathrow Airport might make a DCO application which would be considered under the current (we believe unlawful) version of the NPS. With that in mind, we sought two assurances from the Secretary of State:

First, that he give us a timescale for reaching his decision. The response? That it is “premature for the Secretary of State to commit to any expected timetable”. We don’t think this is good enough.

Secondly (and more importantly), that under no circumstances would a DCO application from Heathrow Airport be considered until after the Secretary of State has finished considering our request for review of the NPS. This seemed to us like an entirely sensible ask – if a decision was reached to review the NPS, the entire purpose of that review would be lost if a DCO application was considered under the outdated existing policy statement. The horse will very much have bolted.

What we got in response is quite extraordinary. The Department for Transport says there is no need to provide such a commitment now as the planning process is so long that it would take “approximately 13 months before it would reach the Secretary of State for a decision to grant or refuse development consent”. That seems to us bizarre, akin to moving the goal posts whilst the players are on the pitch. The Secretary of State’s decision on a DCO application is the last step of many. Surely Heathrow Airport and the Secretary of State will want to know whether the policy is going to be revised before large sums of money are spent on preparing a DCO application? And surely third party objectors impacted by the project should know the policy position before they prepare their responses?

All of this begs the question – why won’t the Secretary of State make the commitment? If Government is serious about its climate change commitments, it should say, and clearly, that it won’t consider the application until after it has made up its mind on the policy.

It’s also unsatisfactory. We are now making a focussed request for documents and communications between Heathrow Airport Limited and the Department for Transport / the Secretary of State in relation to DCO applications. We have made this ask before in correspondence, but are now doing it through a formal process under the Environmental Information Regulations.

Noted environmentalist George Monbiot has joined Dale Vince and Good Law Project as a potential co-claimant in this case. George was involved in our previous claim in relation to the Energy NPS (where the Government conceded that it needed to review its policy). 

The battle against climate change is too important to be kicked into the long grass. We don’t propose to allow the Secretary of State to do so.

Update 2

Good Law Project

Feb. 17, 2021

Kicking the can down the road

In response to our request that the Secretary of State review and suspend the Airports National Policy Statement (ANPS), the Government appears to be kicking the can down the road. After initially being told that officials were “carefully considering” our letter, the Secretary of State has now refused to commit to the review at this stage on the basis that it concerns “complex issues” that need “appropriate policy and legal input”.

But that fundamentally misrepresents what we’re asking for. We aren’t asking the Government to commit to a particular policy position – just that they fulfil their legal obligations and commit to reviewing the policy in line with our climate change commitments. This should be a straightforward decision if the Government is actually committed to meeting its climate change targets.

Without Government committing to review the ANPS, there is a risk that the operators of Heathrow Airport could make an application for a Development Consent Order (DCO) under a policy that is clearly unfit for purpose. 

We are teetering on the edge of a climate catastrophe. It’s not good enough for the Secretary of State to dither and delay. We have now pressed him to commit to a date by which he will provide us a final response. We have also sought information on whether the operators of Heathrow Airport have been in contact about making an application for a DCO.

If we do not get a satisfactory response, we intend to formally commence proceedings.

Update 1

Good Law Project

Jan. 19, 2021

Government says it is 'carefully considering' our request...

We wrote to the Secretary of State for Transport, Grant Shapps MP,  requesting that he consider reviewing and suspending the 2018 Airports National Policy Statement (ANPS) - a document we think is no longer fit-for-purpose given both the significant developments in the science on climate change since the document was drafted, and the domestic policy changes in the UK including our statutory Net Zero commitment.

In our letter to Mr Shapps, we set out why we think that he is legally obligated under the Planning Act to review the ANPS. And we sought a response from him by 18 January. Disappointingly, we did not receive a substantive response yesterday despite the Secretary of State and the Department for Transport having had a month to consider our request. But we were told that officials were closely considering our letter and that they expect to respond shortly.

In the circumstances, we thought it would be reasonable to give the Secretary of State and Department for Transport officials a further short window to respond. We have now sought a response by 1 February 2020 - failing which we intend to kickstart formal legal proceedings.

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