Exactly what has the Court of Appeal decided in what Sadiq Khan has described as “possibly the most important environmental case in a generation”?
Heathrow’s expansion plans have created some strange bedfellows: Mayor Khan and pretty much all of his mayoral rivals alongside true blue Wandsworth and Labour-dominated Hammersmith& Fulham in opposition; major trade unions lined up with the Confederation of British Industry and the London Chamber of Commerce & Industry in support.
It was celebration day for Khan and fellow opponents of the £14 billion plan when the Court of Appeal ruled on Thursday that the government’s decision to green-light the controversial scheme had been unlawful because it failed to take into account the UK’s obligations under the 2015 Paris Agreement on climate change.
“The bell is tolling on the carbon economy loud and clear,” said Tim Crosland, director of Plan B Earth, the environmental charity which led the legal challenge. “It’s now clear that our governments can’t keep claiming commitment to the Paris Agreement while simultaneously taking actions that blatantly contradict it.”
But for Heathrow, which will now appeal the decision, the concerns that gave rise to the court’s judgment were “eminently fixable”. Are they right?
Announcing the verdict, and perhaps anticipating criticism of “judicial overreach” as the court effectively pulled the rug from under a major government policy, Lord Justice Lindblom took pains to emphasise that the judges were not killing off the scheme because of its impact on climate change.
“We have not decided, and could not decide, that there will be no third runway at Heathrow,” Lindblom said. “We have not found that a national policy statement supporting this project is necessarily incompatible with the United Kingdom’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement.”
Instead, in an “entirely conventional exercise in public law”, the court focused on what the then secretary of state Chris Grayling was required to take into account in 2018 when he put forward the Airports National Policy Statement (ANPS) which gave the third runway the go-ahead.
And in a ruling guaranteed to have given government lawyers a sleepless night, it concluded they’d got it wrong when they advised Grayling that he should not take government commitments under the Paris Agreement into account when setting out the ANPS.
It was the Gordon Brown government’s Planning Act 2008 which established the national policy statement process for “nationally significant” infrastructure projects, taking decision-making away from local authorities and putting it in the hands of ministers.
Crucially, the law requires national policy statements to “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”.
So did the government’s commitment to the Paris Agreement amount to “government policy”? The question was centre stage at the earlier hearing, with government lawyers successfully arguing that the agreement had not been incorporated into UK law, did not impose specific obligations on its signatories, and could not supersede statutory policy set out in the Climate Change Act 2008, requiring the UK to meet a net zero carbon emissions target by 2050.
In its key finding, the court disagreed, opening the door to the Paris Agreement having domestic legal effect. “The concept of policy is necessarily broader than legislation,” it said. “In our view the government’s commitment to the Paris Agreement was clearly part of ‘government policy’ by the time of the designation of the ANPS.”
Its conclusion? “The government, when it published the ANPS, had not taken into account its own firm policy commitments on climate change under the Paris Agreement. That, in our view, is legally fatal to the ANPS in its present form.”
Celebrations may prove premature though. Taking policy into account did not require the government necessarily to “act in accordance with the Paris Agreement or to reach any particular outcome,” the court said. It was now a matter for the government to review the ANPS to bring it within the law.
Will the government have another go? There’s plenty of pressure from the capital’s business groups and the trade unions, as well as from Heathrow itself.
Delay would “fly in the face of the government’s determination to make the country a great global trading nation after Brexit,” said Jasmine Whitbread, chief executive of business lobbyists London First, while the government’s “global Britain” ambition depended on “world-class connectivity,” said London Chamber CEO Richard Burge. “It’s hard to see where else is better position to deliver that than Heathrow.”
Expansion would create 114,000 jobs as well as protecting 80,000 existing jobs, said airport workers’ union the GMB. “Like everyone else, GMB members are very worried about climate change, but we would have held Heathrow Airport Ltd’s feet to the fire on their target for zero carbon by the mid-2030s.”
Transport secretary Grant Shapps has so far been non-committal, ruling out defending the runway plan at appeal, leaving that to the airport managers themselves and promising to set out next steps after the judgment “in due course”.
Only mentioning Heathrow once, his statement pointedly welcomes investment underway “across the UK” in airport infrastructure, concluding: “It is critical that vital infrastructure projects, including airport expansion, drive the whole UK economy, level up our regions, and unite our country.”
Last September the independent committee on climate change, set up to advise government on emissions targets, warned that airport capacity should be reassessed in the context of 2050 net zero emissions targets, and that Heathrow expansion was “likely to leave at most very limited room for growth at non-London airports”.
The Appeal Court judgment may not have outlawed a third runway, but its fallout – subject to a successful appeal – may well make the project less likely, particularly given the Prime Minister’s personal opposition. As Khan said outside court: “We’ve given the PM a way out from lying in front of any bulldozers.”
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