Environment – Environmental impact assessment – Carbon emissions – Appellant challenging decisions of respondent secretary of state to grant consent for three road schemes – High Court dismissing application for judicial review – Appellant appealing – Whether respondent acting unlawfully in failing to meaningfully assess combined carbon emissions from road schemes – Appeal dismissed
The appellant challenged three decisions of the first respondent secretary of state to grant consent for three road schemes along the A47 in Broadland, Norfolk on the application of National Highways (the second respondent). The schemes were all within a 12-mile radius of Norwich and designated as nationally significant infrastructure.
Before deciding to grant consent, the first respondent assessed the carbon emissions expected to be generated by each scheme, in particular, the emissions from vehicles using the roads once operational. He acknowledged each scheme would lead to an increase in carbon emissions. However, he concluded that when compared with the UK’s national carbon budgets, spanning the period from 2023 to 2037, the increase in emissions from each scheme was not significant (ranging from 0.001% – 0.004% of any carbon budget).
Moreover, the scheme was compatible with the UK’s trajectory towards net zero (the statutory duty on the secretary of state, under the Climate Change Act 2008, to ensure the net UK carbon account for the year 2050 was at least 100% lower than the 1990 baseline).
The High Court dismissed the appellant’s application for judicial review: [2023] EWHC 1710 (Admin); [2023] PLSCS 117. The appellant appealed.
The issue was whether the first respondent had in the decision letters lawfully discharged the obligation to examine and assess the cumulative greenhouse gas (GHG) emissions likely to result from each of the proposed developments which arose under the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017.
Held: The appeal was dismissed.
(1) It was in principle open to the first respondent to satisfy the requirements in the 2017 Regulations for an assessment of the GHG emissions from each scheme by means of a comparison between the probable future emissions from the relevant affected road network (ARN) on the do minimum basis and the do something basis, with the resulting figures then being compared with the fourth, fifth and sixth national carbon budgets down to 2037.
Further, it was accepted that the first respondent had directed his mind, in each decision letter, to the question of the cumulative GHG effects of the scheme under consideration. The first respondent therefore had before him, and must have given consideration to, the forecast emissions from each of the three schemes, together with the forecast emissions from the other existing roads and planned projects (including the other two schemes) contained within the relevant ARN. Each scheme was placed within a wider local context, and the cumulative future emissions likely to be generated within that context were compared with national carbon budgets which set net cumulative targets which the UK as a whole, by one means or another, was obliged to meet on its trajectory towards the mandatory net zero target in 2050.
(2) There was an air of complete unreality to the complaint that the first respondent was somehow at fault in not having conducted a separate and wider assessment of cumulative emissions from each scheme (as disclosed in the data and tables contained in the environmental statements), in addition to the ARN-based exercise for each scheme. There was no logical basis upon which any such wider exercise could have been founded, and the inevitably arbitrary choice of the other sources of carbon emissions to be considered would only have given a spurious impression of precision to the resulting assessment. Hence, there was a logical coherence to the first respondent’s decision not to undertake a comparison of combined emissions against the national target.
(3) The obligation in paragraph 5(e) of schedule 4 to the 2017 Regulations required the environmental statement to give a description of the likely significant effects of the development on the environment resulting from the cumulation of effects with other existing and/or approved projects.
That duty was adequately discharged by the second respondent using the ARN data to measure the impact of emissions from the scheme in its local context when compared with national carbon budgets. As the decision letters showed, the first respondent carefully considered the issue of cumulative emissions. In substance, he considered that the likely future emissions from the scheme, calculated in the wider local context of the relevant ARN, fell below the threshold of significance; and that there was no meaningful way in which a wider assessment of cumulative emissions could be carried out in the light of current scientific knowledge and the lack of any geographical boundary for such emissions.
Those were issues of fact and evaluation for the decision maker, and they were subject only to the supervisory oversight of the court. There was no hard-edged provision in the legislation, or any relevant principle of law, which was breached by the first respondent in coming to those conclusions. Furthermore, the decisions were not irrational: R (GOESA) v Eastleigh Borough Council [2022] EWHC 1221 (Admin); [2022] PLSCS 83 considered.
(4) By virtue of regulation 5(2), the environmental impact assessment “must identify, describe and assess in an appropriate manner, in light of each individual case, the direct and indirect significant effects of the proposed development” on, among other things “air and climate”. The first respondent concluded, for reasons which he adequately articulated and integrated into his decision, that there was no “appropriate manner” in which cumulative GHG emissions from each scheme could usefully be modelled and taken into account, separately from the elements of cumulation which were already inherent in the use of an ARN baseline which included the other schemes, and in the use of national net carbon budgets as the comparator.
On a fair reading of the decision letters, the first respondent provided adequate reasons for not embarking on a separate cumulative assessment which would inevitably have lacked a logical basis and could not have provided further information of any value. In the current state of scientific knowledge, as reflected in the guidance issued by the Institute of Environmental Management and Assessment in 2022, headed “Assessing Greenhouse Gas Emissions and Evaluating their Significance”, that was a rational position for the first respondent to adopt and it betrayed no error of law.
David Wolfe KC, Peter Lockley and Ben Mitchell (instructed by Richard Buxton Solicitors) appeared for the appellant; James Strachan KC and Rose Grogan (instructed by Government Legal Department) appeared for the first respondent; Reuben Taylor KC (instructed by Womble Bond Dickinson (UK) LLP) appeared for the second respondent.
Eileen O’Grady, barrister
