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.


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."

Alan Boyle, ‘Litigating Climate Change under Part XII of the LOSC’

The International Journal of Marine and Coastal Law (forthcoming)

Abstract: "Inter-state litigation is a weapon employed by weaker states with limited diplomatic leverage over their bigger, more powerful opponents. An authoritative judgment may facilitate a settlement of some kind, whether directly, by further negotiation, or simply by legitimising the claims made. The LOSC was negotiated at a time when climate change was not yet part of the international agenda; however, it must be interpreted and applied with subsequent developments in international law and policy in mind. The harmful, toxic, and persistent effects of climate change more than satisfy the test for marine pollution established by Article 1 of LOSC. Part XII applies to climate change insofar as it has or is likely to have deleterious effects on the marine environment. This article will discuss the role that Part XII of LOSC may play in enforcing states’ obligations to protect and preserve the marine environment from the effects of climate change."