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Plan B Earth v Secretary of State for Transport [2020] EWCA Civ 214

The UK Court of Appeal cancelled the government’s decision to develop a third runway in Heathrow Airport on the ground that the strategic environmental assessment had not taken the adoption and ratification of the Paris Agreement into account.
The main argument accepted by the Court was that the Planning Act 2008 s.5(8) requires a national policy statement to “take … account of Government policy relating to the mitigation of … climate change.” The plan at issue took account of the UK’s Climate Change Act 2008 (based only on a 2C target), but not of the Paris Agreement (which defined a “well below” 2C target and a 1.5C target). In the Court’s view, the Paris Agreement constituted government policy.
The Court also accepted that taking account of the Paris Agreement was necessary under the EU Directive on Strategic Environmental Assessment, as Annex I requires States to take into account any international objectives on environmental protection.
The case highlights the role that environmental assessment procedures can play as a tool for climate change mitigation.
However, the Court did not carefully discuss the question of the relevance of the Paris Agreement. This treaty does not provide any specific objective for the UK (or for international civil aviation). While the Court seems concerned by a change in the global temperature target (from 2C, to “well below” 2C and towards 1.5C), it is unclear what, if any, significance this has for the mitigation objectives applicable to the UK or to international civil aviation.
The UK government has apparently decided not to appeal against this judgement. The government could very well carry out a new environmental assessment procedure for the same project, addressing the procedural flaw identified by the Court of Appeal. PM Johnson has however clearly indicated his opposition to the project.

 

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Laura Burgers, “Should Judges Make Climate Change Law?”

"What scholars referred to as a climate change litigation ‘explosion’ in 2015 has today become an established movement which is unlikely to stop in the near future: worldwide, over a thousand lawsuits have been launched regarding responsibility for the dangers of climate change. Since the beginning of this trend in transnational climate litigation scholars have warned that the separation of powers is threatened where judges interfere with the politically hot issue of climate change. This article uses Jürgen Habermas's political theory on deliberative democracy to reconstruct the tension between law and politics generated by these lawsuits. This reconstruction affords a better understanding of the implications of climate change litigation: while the role of the judiciary as such remains unchanged, the trend is likely to influence the democratic legitimacy of judicial lawmaking on climate change, as it indicates an increasing realization that a sound environment is a constitutional value and is therefore a prerequisite for democracy."

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Michael Mehling, Harro van Asselt, Kati Kulovesi, Elisa Morgera, “Teaching Climate Law: Trends, Methods and Outlook”

Journal of Environmental Law (forthcoming)
Abstract: "Climate change presents unique challenges for legal education. As a subject matter, it is technically complex and normatively contested, evolves at a dynamic pace and crosses established boundaries between academic disciplines, branches of law, and levels of jurisdiction. Still, it has, by now, firmly entered the legal curriculum through general and specialised courses, and is also increasingly featured in courses on neighbouring areas of law. This article offers an initial, exploratory survey of the current state of climate law education, including courses, degree programmes, and teaching material, as well as teaching methods and the role of interdisciplinary approaches. Based on this survey, it identifies broader trends in the still nascent field, including a tendency towards consolidation and specialisation. Climate law will evolve over time, as will approaches to its instruction. For future climate lawyers, practical skills and sound judgment will therefore weigh more heavily than exhaustive command of doctrinal detail. Interactive teaching formats and experiential learning are therefore recommended as integral elements of climate law education, as is cautious exploration of an interdisciplinary approach to the topic."