Environmental Purpose Requirement for National Law under Article 9(3) of the Aarhus Convention

1. Introduction

This commentary examines the England & Wales Court of Appeal’s decision in HM Treasury & Anor v Global Feedback Ltd ([2025] EWCA Civ 624), which clarifies the scope of “provisions of national law relating to the environment” in Article 9(3) of the Aarhus Convention. The parties were:

Appellants: HM Treasury and the Secretary of State for Business and Trade, responsible for making the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment) Regulations 2023.
Respondent: Global Feedback Ltd (GFL), an environmental charity challenging the 2023 Regulations on the grounds that they failed to assess “carbon leakage” and thus risked higher net greenhouse-gas (GHG) emissions.

Key issues:

Does a general statutory duty to “have regard” to international obligations (s.28, Taxation (Cross-Border Trade) Act 2018) transform non-environmental legislation into “national law relating to the environment” under Article 9(3)?
Can alleged breaches of public‐law principles in assessing environmental effects (irrationality, failure of inquiry) alone trigger Aarhus costs protection?

2. Summary of the Judgment

The Court of Appeal, by a majority, held that:

Article 9(3) applies only to contraventions of legal provisions the purpose of which is to protect or regulate the environment.
The Taxation (Cross-Border Trade) Act 2018 and its s.28 duty simply to have regard to relevant international arrangements do not have environmental protection as their purpose and so do not qualify.
Alleged public-law errors in handling environmental considerations under non-environmental law (e.g. irrationality, Tameside duty failures) do not themselves bring a claim within Article 9(3).
Accordingly, GFL’s judicial‐review claim fails the threshold test for an Aarhus Convention claim in CPR 46 Part IX, and the costs‐capping regime does not apply.

3. Analysis

3.1 Precedents Cited

Brown Bear (C-240/09): CJEU held Article 9(3) ensures access to challenge contraventions of “environmental law”—laws whose purpose is environmental protection.
Venn v Secretary of State for Communities & Local Government [2015] 1 WLR 2328: “Provisions of national law relating to the environment” include non-environmental statutes if they mandate the taking into account of environmental policies or plans (e.g. planning statutes requiring regard to green-belt or biodiversity policies).
Austin v Miller Argent [2014] EWCA Civ 1012: Private‐nuisance claims may fall within Article 9(3) if the law of nuisance is used to protect the environment and the public interest in high environmental standards.
ClientEarth v Financial Conduct Authority [2023] EWCA Civ 844: Financial‐markets legislation absent an environmental purpose does not qualify, even if climate‐related risks are indirectly implicated.
Friends of the Earth v Secretary of State for International Trade [2021] EWHC 2369: High Court’s contrary view that public‐law challenges touching climate obligations can qualify—even under non-environmental statutes—was rejected by the appeal court here.
ClientEarth v European Investment Bank (T-9/19): EU eligibility criteria designed to meet environmental objectives qualify as “environmental law” despite being based on the EIB statute; analogous to Venn, not to be extended to general duties.

3.2 Legal Reasoning

The court applied the Vienna Convention rules (Arts 31–32) to interpret Article 9(3) in context. Key points:

Ordinary meaning and purpose: “Provisions of national law relating to the environment” requires that the provision’s purpose or subject‐matter be environmental protection or regulation.
Strength of “relating to”: Travaux and the authentic French text show that the link must be more than incidental; it must concern environmental objectives.
Limits of public‐law duties: General duties to “have regard” to considerations (Tameside duty) without an underpinning environmental purpose remain non-environmental.
Distinguishing Venn: In planning law, Parliament embedded environmental policy within its regulatory structure. No analogous embedding exists in the 2018 Act.
Article 9(4) costs protection: Only procedures under Arts 9(1)–(3) qualify; here Art 9(3) is not engaged, so Part IX costs‐capping does not apply.

3.3 Impact

This decision:

Clarifies that only provisions enacted for environmental protection/regulation will trigger Aarhus compliance and cost protection.
Limits environmental judicial review claims under non-environmental statutes to cases where specific environmental‐purpose provisions are contravened.
Reinforces the requirement for claimants to identify clear “environmental law” contraventions when invoking CPR 46 Part IX.
Guides future treaty‐based interpretations: domestic courts will resist broadly extending international‐treaty rights beyond their negotiated text.

4. Complex Concepts Simplified

Aarhus Convention: An international treaty guaranteeing public rights to environmental information, public participation, and access to justice in environmental matters.
Article 9(3): Requires Parties to provide procedures to challenge acts or omissions that contravene national laws whose purpose is environmental protection or regulation.
Tameside Duty: A public-law requirement for decision-makers to make reasonable inquiries about material facts before acting.
Carbon Leakage: When GHG‐intensive production moves to jurisdictions with laxer climate controls, increasing net global emissions.
Costs Capping (CPR 46 Part IX): Limits recoverable costs in “Aarhus Convention claims” to ensure access to justice is not prohibitively expensive.

5. Conclusion

The Court of Appeal in HM Treasury & Anor v Global Feedback Ltd has affirmed that Article 9(3) of the Aarhus Convention applies only to contraventions of legal provisions the primary purpose of which is environmental protection or regulation. It rejected the expansion of Aarhus claims to general statutory duties that incidentally touch environmental matters or to public-law errors under non-environmental legislation. This ruling sharpens the boundary of environmental justice under the Convention and underlines the need for clear environmental‐law bases in future claims.