Planet holds breath for Heathrow landmark ruling
November 23, 2020

–> Please see previous RisingTideUK blog on the High Court Verdict and the case leading up to the Court of Appeal here:- https://stay-grounded.org/london-heathrow-expansion-3d-runway-runaway-climate-breakdown/

Summary

So, we await the verdict of the UK Supreme Court which was forced to sit on 7th & 8th October 2020 after Europe’s biggest carbon emitter, Heathrow Airport Ltd, appealed against the Court of Appeal judgement that the UK’s ANPS (Airports National Policy (planning) Statement), the framework for a £14bn+ 3rd Runway was found unlawful. The verdict is expected by the end of 2020 but the Law Lords said “we’ll let you have it as soon as we can”. The UK Dept.Transport is waiting to run several consultations held up by this case, including one on Emissions from Aviation.

Heathrow argued that the SoS(Secretary of State) Transport, when making the ANPS, had exercised his “discretion” to not take into account non-C02 GHG (or emissions post-2050), as his legal advice was not to go beyond the CC (Climate Change) Act (which excludes them) and he had “discretion” to ignore them anyway.

Friends of the Earth (England,Wales & N.Ireland) (FoE) & PlanB, again argued that much climate evidence was available and should have been considered: from the emerging Paris Agreement; draft UN-IPCC 1.5C Special Report; and further emerging thinking as demonstrated by CCAct Carbon Budgets and other strategy White Papers. Heathrow further opined that the SoS also had “discretion” on the Planning Act 2008, as that and these “emerging aspects ” were, “not an appropriate basis on which to formulate the ANPS” and were therefore “not excluded” but “can be taken into account at the DCO” (Development Consent Order) stage.

The crux appears to be that the SoS has mandatory duties under the Planning Act 2008, when new evidence emerges that would affect climate change. The Appeal Court previously found that he ignored this mandatory duty as (they found) “Paris was obviously relevant” and in our barrack-room opinion, on this, the case may hinge as the SoS does not have “discretion” here.

If we win it will maintain the ANPS as unlawful, bin a 3rd Runway and have major implications on all infrastructure projects in the UK (and maybe around the planet), as they will then need to include 1.5C climate impact assessments. If we lose, we’ll still try to win at the DCO Public Inquiry stage – when everything from Paris onwards will also need to be taken into account.

Supreme Court Permissions

This case was heard due to Heathrow’s appeal being allowed:-https://www.supremecourt.uk/news/permission-to-appeal-decisions-07-may-2020.html but the 2 other applications to Appeal to the Supreme Court were rejected:-

  •     from the London Borough of Hillingdon (and others)

Their case was that:- On 1/7/15 the Airports Commission published a final report on aviation capacity. The report gave 3 options for development; 2 were at Heathrow Airport and one “the Gatwick Scheme”. The SoS, on 25/10/16, announced the Government wished to build a new runway at Heathrow Airport (the “north-west runway”). An ANPS, which recommended the nth-w runway, was laid before Parliament and approved in the House of Commons by 415 votes to 119 in 2018. On 26/6/18 The SoS adopted the ANPS. This was a step towards building the nth-w runway. The Appellants argued that the decision to reject the Gatwick Scheme breached various European Union law requirements and planning law in adopting a scheme for a 3rd runway at Heathrow as opposed to a 2nd runway at Gatwick.

  •    Heathrow Hub Ltd (and another)

Their case was that the SoS chose the nth-w runway Scheme for expanding Heathrow over the “ENR Scheme” and that the promoters of that scheme if chosen, would have required the promoter of the nth-w runway Scheme’s cooperation to deliver the project, since that promoter owned Heathrow Airport. The SoS mentioned this to the promoters of the ENR Scheme before he chose the nth-w runway scheme, surely rendering the SoS’s decision to choose the nth-w runway scheme unlawful.

The Court refused both on the ground that “the application did not raise any arguable point of law of general public importance which ought to be considered by the Supreme Court at this time, bearing in mind that the matter has already been the subject of judicial decision and reviewed on appeal.

Supreme Court Hearing

With a gag of tragic irony, the last day of the hearing was the 2 year anniversary of the publication of the IPCC’s Special Report on Global Warming of 1.5C.

Here is the Case Summary from the Court’s point of view:-

Issue – Did the Secretary of State’s failure to take account of the UK’s climate change commitments under the Paris Agreement render the designation of the APNS favouring the development of a third runway at Heathrow Airport unlawful?

Facts:- On 26/6/18, the SoS.Transport designated the ANPS under section 5(1) of the Planning Act 2008. The ANPS supports the development of a third runway at Heathrow Airport to deliver additional hub airport capacity in the South East of England. On 12 December 2015 the UK government adopted the Paris Agreement on Climate Change, which enshrines an aspiration to achieve a net zero greenhouse gas emissions level during the latter half of the 21st century. The UK ratified the Paris Agreement on 17/11/16. The respondents (and others) challenged the ANPS on the basis of its failure to take account of the Paris Agreement. The High Court dismissed their application for judicial review, but the Court of Appeal allowed their appeal and held that the ANPS was unlawful. The appellant now appeals to the Supreme Court.
Parties:- Appellant(s)Heathrow Airport Ltd. Respondent(s)R (on the application of Friends of the Earth Ltd and others)
Appeal Justices:- Lord Reed, Lord Hodge, Lady Black, Lord Sales, Lord Leggatt”.

So it seemed Heathrow’s main argument in our summary above, involved ignoring the Court of Appeal verdict and going back a step to an argument that failed there and at the Divisional (High) Court originally, in the hope that this mob of judiciary may have a different view.

Heathrow maintained that the UK’s Carbon Budget’s set under the Climate Change Act do include International Aviation emissions by allowing “sufficient headroom to include them” in the future.

There is no legally binding obligation under the Paris Agreement to set national binding targets but to merely make “pledges” – a fact often omitted by those lauding Paris and moreover open to the legal interpretation heard ;-p.

Bizarrely, according to recent evidence given to the UK House of Commons Transport Committee by Heathrow Airport’s CEO John Holland-Kaye, it is not currently planning for a third runway! He said:-
“In terms of the third runway, my focus is solely on protecting jobs, protecting our business and serving the country at the moment. I am not thinking about the third runway. However, in 10 or 15 years’ time, if we are successful in rebooting the UK economy and getting us back to full strength, we will need the third runway at that point.”

By the way, the links to Heathrow’s Supreme Court documents appeared to have been disabled and are currently still not up, or downloadable from their website https://www.heathrowexpansion.com/collections/court-of-appeal-documents/  Funny that eh? Openness and transparency questions should be asked of them as neither are they available on the Court website. We tried but guess what? The links to the Heathrow press office mysteriously “malfunctioned” too! Our spies have subsequently tracked down their Case Submission so if you’d like a copy please email .

FoE had a bit of a hard time with regular interruptions from Law Lords. Their Council could and did indeed get to their points when they let him get on with it as they did Heathrow’s Council. Among other Grounds FoE said the CCAct does not deal with post-2050 emissions or non-CO2 GHG or had caught up with targets dictated by the science as advised by the UK government’s advisary body, the Committee on Climate Change (CCC) but all of this, needed to be taken into account. Find their briefing here:- https://friendsoftheearth.uk/climate-change/heathrow-airport-expansion-supreme-court-appeal-briefing  and their Press Release:- https://friendsoftheearth.uk/climate-change/heathrow-third-runway-friends-earth-supreme-court-defend-historic-victory-clim

PlanB argued that the CCC had not issued advice that kept up with the science or evolving thinking on climate. However, much evidence was available from the emerging Paris Agreement, draft 1.5C Special Report and further emerging thinking as demonstrated by CCAct Carbon Budgets and other strategy White papers – BUT FoE made clear that the SoS also has mandatory duties under the Planning Act 2008 when new evidence emerges that would affect climate change. The Appeal Court found that he ignored this mandatory duty because (they found) “Paris was obviously relevant”.

Plan B’s full Grounds are set out in their Submission:- https://planb.earth/wp-content/uploads/2020/09/SC-Plan-B-case-final.pdf  – but they further detailed the evidence for the emerging and evolving thinking on the science alluded to above. Their press Release said:- “Boris Johnson claims that “we will ensure that we abide by the judgment and take account of the Paris convention on climate change”. The Government itself is not appealing, but Heathrow Airport is arguing that the Paris Agreement is not part of government policy on climate change. The stakes could hardly be higher, in the UK and beyond.”

Plan B outlined that at the time of the designation of the ANPS in June 2018, the SOS knew, or ought to have known, that the Government had:-
a) rejected the 2˚C temperature limit as creating intolerable risks, in the UK and beyond;
b) committed instead to the Paris Agreement and the Paris Temperature Limit, and that it had;
c) committed to introducing a new net zero target in accordance with the Paris Agreement.

In reality these matters were fundamental to UK Government policy relating to climate change and it was irrational for the SOS to treat them as irrelevant. While the Planning Act 2008 s.5(8) does not require the SOS to follow Government policy relating to climate change it does require that the SOS communicate transparently the relationship between the ANPS and that policy, so that any tension arising can be debated openly and democratically. The SOS’s failure in this regard was a fundamental flaw in the process.

Court of Appeal Verdict

On 26th February 2020 the Court of Appeal ruled that the Heathrow development couldn’t go ahead as planned. It did not comply with or support, the UK’s targets to reduce emissions and move towards a sustainable future and the ruling said the government had not properly considered environmental impact or Climate Change Policy.

Court of Appeal Judgement Summary:- https://www.judiciary.uk/wp-content/uploads/2020/02/Heathrow-summary-of-judgments-26-February-2020-online-version.pdf
Court of Appeal Full Judgements:- https://www.judiciary.uk/judgments/r-friends-of-the-earth-v-secretary-of-state-for-transport-and-others/

It was revealed during the appeal that the government accepted legal advice that it should not consider the Paris Agreement when giving the 3rd runway the go ahead. The Court said very clearly that ignoring Paris was illegal.  However they consider that this “is an entirely legal matter”. Although Paris had not happened at the moment the case was lodged, thanks to the UN International Panel on climate change (IPCC) Council of the Parties (COP) “negotiations” usually being stitched-up by governments before the talks, there was sufficient documented evidence that a 1.5 C degree target would be agreed. That, along with other changes meant a “change of circumstances” regarding climate change under The Planning Act.

From the Summary Judgement:- “in particular the provision in section 5(8) of the Planning Act, which requires that the reasons for the policy set out in the ANPS” must … “include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change. We have concluded, in particular, that the designation of the ANPS was unlawful by reason of a failure to take into account the Government’s commitment to the provisions of the Paris Agreement on climate change, concluded in December 2015 and ratified by the United Kingdom in November 2016 (paragraphs 222 to 238 and 242 to 261). We have concluded that the ANPS was not produced as the law requires, and indeed as Parliament has expressly provided. The statutory regime for the formulation of a NPS, which Parliament put in place in the Planning Act, was not fully complied with. The Paris Agreement ought to have been taken into account by the Secretary of State in the preparation of the ANPS and an explanation given as to how it was taken into account, but it was not (paragraph 283). That, in our view, is legally fatal to the ANPS in its present form. ……… the ANPS does not remain effective in its present unlawful form pending the outcome of its statutory review – under section 6 of the Planning Act – in the light of the Paris Agreement (paragraph 278). Section 6(5) of the Planning Act states that “[after] completing a review of all or part of a national policy statement the Secretary of State must do one of the following … (a) amend the statement; (b) withdraw the statement’s designation as a national policy statement; (c) leave the statement as it is” (paragraph 39). .The parties have had an opportunity in the light of our draft judgments to make submissions to us on the appropriate remedy to reflect the conclusions we have reached. In the light of those submissions, we have concluded that the appropriate remedy is a declaration, the effect of which will be to declare the designation decision unlawful and to prevent the ANPS from having any legal effect unless and until the Secretary of State has undertaken a review of it in accordance with the relevantstatutory provisions, including the provisions of section 6, 7 and 9 of the Planning Act 2008.”

The court went on to say:- “Our decision should be properly understood. We have not decided, and could not decide, that there will be no 3rd at Heathrow. We have not found that a NPS supporting this project is necessarily incompatible with the United Kingdom’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement, or with any other policy the Government may adopt or international obligation it may undertake. The consequence of our decision is that the Government will now have the opportunity to reconsider the ANPS in accordance with the clear statutory requirements that Parliament has imposed (paragraph 285).”

Conclusion

So, the ANPS is currently dead.

Long-term campaigner and opposition Labour Party stalwart John McDonnell, last time around the 3rd Runway un-merry-go-round, invited then just a run-of-the-mill MP Boris Johnson to join him in laying down in front of any bulldozers and back then, he accepted.

What happens now if Heathrow’s appeal to the Supreme Court fails?

The government could cancel the project.

The ANPS could be left to rot, or re-written or amended given it is currently unlawful, to try and cram a new runway(/s) into the UK’s Climate Breakdown targets compatible with Paris – but as former UK CCC Chairperson Lord Taylor said a decade ago, that would mean all other industrial sectors cutting emissions much more deeply than aviation which isn’t going to happen. Although from June 2019, this article gives a picture of what was planned pre-Covid19 in the UK, driving a coach and horses (And spare fresh horses) through the UK’s inadequate NET-zero by 2050 Carbon Target:- https://www.carbonbrief.org/guest-post-planned-growth-of-uk-airports-not-consistent-with-net-zero-climate-goal

With work underway on the £100bn and counting, High speed Rail 2 (HS2), (currently now) Conservative Party Prime Minister Johnson may consider expansion at Birmingham and Manchester Airports instead, where HS2 may eventually lead. This would bolster support in constituencies recently snatched from Labour at the December 2019 General election. After the Court of Appeal verdict Labour Mayor of Manchester Andy Burnham obscenely wasted no time in calling for that to happen. The latest from October 2020 on current UK expansion plans can be found here:- https://www.aef.org.uk/uk-airport-expansions-september-update/ , representing pretty much the equivalent of a Heathrow 3rd runway if all added and completed, the UK Regional Airports sector having sought to get their Heathrow denial retaliation in first!

Great campaigns to oppose them have sprung up like the one at Bristol Airport which was also thrown out by North Somerset District Council on climate and environmental grounds https://www.theguardian.com/uk-news/2020/feb/11/plan-to-expand-bristol-airport-rejected-after-climate-protests so maybe the rising tide is turning?  The Airport have appealed https://www.bbc.co.uk/news/uk-england-somerset-53682129 and it will go to Public Inquiry in 2021. One to watch.

Anyway, in this critical time of Climate & Ecological Emergency, the Supreme Court Appeal is misconceived and should be dismissed; leaving the ANPS unlawful and the wholly inappropriate Heathrow expansion plans dumped in the carbon sink of the past where they very clearly belong. If we win it would have major implications for all future infrastructure projects in the UK (and maybe around the planet), as they will then need to include 1.5C climate impact assessments. If we lose, we’ll still try to win at the DCO Public Inquiry stage – when everything from Paris onwards will need to be taken into account by the Inspector. The Government, though, would then have the final say as it would need to endorse or overrule the recommendation of any planning inspector. If that happened we’d be joined in front of the bulldozers by current Prime Minister Johnson who after all, did promise to lay down in front of them!

As FoE said after the Appeal Court verdict “Already, communities in the UK and overseas are suffering from the impacts of climate breakdown. We must stop treating the climate emergency as a hypothetical future – it’s here now.  That’s why winning this case is so important. Heathrow is one of the biggest single sources of greenhouse gases in the UK. ” (and Europe) “And airport expansion – at Heathrow or any other airport – simply cannot go ahead if we’re to prevent further climate breakdown. This judgment also has exciting wider implications for keeping climate change at the heart of all planning decisions. It’s time for developers and public authorities to be held to account when it comes to the climate impact of their damaging projects.”.

Its time for at least a moritorium on further Airport Expansion as the climate clock is ticking down.

We should give thanks to all the local people and grassroots campaign groups who’ve been fighting against local expansions and the 3rd runway for decades as overall, this case, whenever victory should come, will be one for the grassroots and we should celebrate it and spread the word internationally, in solidarity with the thousands of people involved in hundreds of struggles around the planet to lessen the impact of Climate Breakdown and halt aviation expansion. When we win, let’s savour that moment.

Love & Solidarity – RisingTideUK

 

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