Introduction

The case Friends of the Earth Ltd, R (On the Application Of) v Secretary of State for International Trade/UK Export Finance (UKEF) & Anor ([2023] EWCA Civ 14) revolves around whether the UK Government acted unlawfully by approving UKEF's $1.15 billion investment in a liquefied natural gas (LNG) project in Mozambique. Friends of the Earth, an environmental advocacy group, sought judicial review, arguing that the funding contravened the UK's obligations under the Paris Agreement. The Court of Appeal ultimately dismissed the application, upholding the government's decision.

Summary of the Judgment

The Court of Appeal evaluated whether the UK Government's approval of UKEF's substantial investment in the Mozambique LNG project was lawful under the Paris Agreement obligations. The key issues included the interpretation of international law obligations, the application of the "tenable view" standard in judicial review, and the adequacy of UKEF's assessment of the project's climate impact, particularly Scope 3 emissions.

The court concluded that the Paris Agreement is an unincorporated international treaty that does not create direct domestic legal obligations. Consequently, the decision to fund the project was assessed based on whether it was a tenable view that the funding aligned with the UK's Paris Agreement commitments. The court found UKEF's position tenable, considering the complexities and uncertainties involved, and dismissed Friends of the Earth's appeal.

Analysis

Precedents Cited

The judgment extensively referenced previous cases to establish the framework for evaluating appeals against executive decisions related to international treaties:

• R v. Secretary of State for the Home Department, Ex parte Launder [1997]: Emphasized that courts should examine the substance of arguments when a decision-maker has acknowledged considering relevant factors.
• R v. Director of Public Prosecutions, Ex parte Kebilene [2000]: Reinforced the approach taken in Launder regarding judicial review of decision-maker's assessments.
• Benkharbouche v. Secretary of State for Foreign and Commonwealth Affairs [2017]: Stated that courts must determine points of international law if they are necessary to resolve justiciable issues.
• R (Corner House Research) v. Serious Fraud Office [2008]: Highlighted the limitations of courts in interpreting unincorporated treaties without clear domestic guidelines.
• R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020]: Clarified that while the Paris Agreement sets objectives, it does not impose binding domestic targets on states.

Legal Reasoning

The court's legal reasoning centered on the principle of dualism, which posits that international treaties do not confer domestic legal rights unless explicitly incorporated into national law. Since the Paris Agreement was unincorporated, it did not impose direct legal obligations on UK entities. The Court applied the tenable view standard, assessing whether UKEF's interpretation that funding the project was consistent with the Paris Agreement was reasonable and supported by evidence, despite uncertainties in Scope 3 emissions.

Furthermore, the court acknowledged the complexities in predicting the project's long-term climate impact and recognized that decision-makers deliberated multifaceted factors beyond mere emission calculations. By adhering to the tenable view approach, the court deferred to the executive's expertise in balancing economic and environmental considerations.

Impact

This judgment sets a significant precedent in the context of judicial review concerning international agreements. It reinforces the notion that courts will respect the executive's discretion in interpreting unincorporated treaties, provided the decisions are reasonable and based on a tenable interpretation of the agreement's objectives. This decision may limit the ability of organizations like Friends of the Earth to challenge government funding of projects based solely on their alignment with international climate commitments unless clear domestic legal standards are established.

Complex Concepts Simplified

Scope 3 Emissions

Scope 3 emissions refer to all indirect greenhouse gas emissions that occur in the value chain of a reporting company, including both upstream and downstream emissions. In this case, it pertains to emissions resulting from the use of the exported LNG.

Tenable View

A tenable view is an interpretation or position that is reasonable and defensible, even if not definitively proven. In judicial reviews, assessing whether an executive action is a tenable view involves determining if it was a reasonable decision based on the evidence available at the time.

Judicial Review

Judicial review is a process by which courts examine the legality of decisions or actions made by public bodies. It ensures that such decisions comply with the law and adhere to principles of fairness and reasonableness.

Dualism

Dualism is a legal principle stating that international law and domestic law operate in separate spheres. For an international treaty to have legal effect domestically, it must be incorporated into national legislation.

Unincorporated Treaty

An unincorporated treaty is an international agreement that has not been adopted into national law through legislation. As a result, its provisions do not have direct legal effect within the domestic legal system unless specified.

Conclusion

The Court of Appeal's decision in Friends of the Earth Ltd v Secretary of State for International Trade/UKEF underscores the judiciary's deference to executive discretion in matters involving complex international agreements. By endorsing the tenable view standard, the court affirmed that as long as a decision is reasonable and supported by available evidence, even amidst uncertainties, it stands upheld. This judgment highlights the challenges faced by environmental advocacy groups in holding governments accountable under international treaties that lack direct domestic legal force, potentially shaping future legal strategies in environmental law and policy.