In May, we reported on the outcome of five challenges to the Secretary of State’s decision to designate the Airports National Policy Statement (ANPS), which sets out the Government’s policy support for expansion of Heathrow Airport. All five challenges were dismissed by the High Court. Since then, the Court of Appeal has made an order allowing a number of claimants, including Plan B and Friends of the Earth, to challenge the High Court’s rejection of their claims. A hearing is due to be held on 21 October 2019, which will involve the Court of Appeal hearing the full application for permission to appeal and, if permission to apply for judicial review is granted on that application, the claim for judicial review. One of the issues that will be taken into consideration at the hearing is the change in UK law since May 2019, committing the UK to legally binding net-zero emissions targets. Yesterday, the Committee on Climate Change (CCC) wrote to the Secretary of State for Transport in response to the Government’s request on how to bring international aviation and shipping (IAS) emissions within the UK’s net-zero target.
This post considers the impact of the new commitment to net-zero by 2050 on the forthcoming Court of Appeal hearing. It also considers the CCC letter of 24 September 2019 and outlines the next steps in the Heathrow expansion consultation.
As these are judicial review proceedings, the Court of Appeal will not be able to rule on the merits of the APNS, such as increasing airport capacity or whether a third runway at Heathrow should proceed. It will, however, consider the grounds of the judicial review claims, which include climate change considerations. This will likely be one of the more closely watched issues that the Court of Appeal is dealing with, particularly given the recent legal developments to set a net-zero target by 2050 (see below).
In the High Court, the claimants unsuccessfully argued that the Secretary of State acted unlawfully by not taking into account the Paris Agreement. The High Court held that the Paris Agreement does not form part of UK law and so, while the UK has ratified it, it has no effect in domestic law until Parliament decides if and how to incorporate the agreement’s target to hold the increase in global average temperature to well below to “well below” 2ºC above pre-industrial levels and to pursue efforts to limit that increase to 1.5ºC.
Since the High Court’s rulings in May, Parliament has passed legislation to commit the UK to a legally binding target of net-zero emissions on 1990 levels by 2050, which based on the Committee on Climate Change’s (CCC) Net Zero Report, is the appropriate UK contribution to the Paris Agreement.
Now that there is UK law which reflects the UK’s commitment to the Paris Agreement, all eyes (including the eyes of proponents of other nationally significant infrastructure projects in the pipeline) will be on the Court of Appeal and how it decides to grapple with this legal development when considering these judicial review applications.
The CCC’s latest advice on dealing with international aviation and shipping emissions builds on the measures and policy recommendations foreshadowed in the CCC’s Net Zero Report published in May 2019. The recommendations include formally recognising international aviation and shipping emissions in the 2050 net-zero target and building on global initiatives to achieve significant emissions reductions in both sectors. The CCC believes that aviation is likely to be the largest emitting sector in the UK by 2050 even with strong progress on technology and limiting demand but recognises the difficulty in achieving emissions reductions in this sector due to the significant lead in time for technological developments that would result in emissions reductions. The policy recommendations include managing growth in both demand and airport capacity which if implemented, will likely have impacts across the entire sector including for airline and airport operators, as well as consumers who have for so long benefited from cheap short-haul flights.
Regarding airport capacity specifically, the CCC recommends that the Government’s airport capacity strategy should be assessed in the context of the net-zero target and foreshadows that current planned additional airport capacity growth at London airports (including the third runway at Heathrow) will leave little room for growth at non-London airports. This indicates that any capacity restrictions which may be implemented as a result of these recommendations may not apply to the Heathrow expansion, or to other current planned expansion projects at London airports.
We have prepared a more detailed summary of the CCC Letter of 24 September 2019. Please contact us if you would like to receive a copy.
Meanwhile, Heathrow’s statutory consultation on its masterplan for expansion closed on 13 September. This consultation sought feedback on the future layout of the airport, including the new runway and other airport infrastructure such as terminals and road access.
Heathrow’s application is expected to be submitted to the Planning Inspectorate mid-2020. Once the application is received, the Planning Inspectorate will review the application and decide whether to accept if for examination. All application documents will be published on the Planning Inspectorate’s Expansion of Heathrow Airport (Third Runway) project page.
It will be interesting to see how Heathrow deals with impacts on climate change in light of the above, and the impact of expansion on airport emissions in particular.
Author: Julia McKeown, Associate (New Zealand), planning, real estate
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