Mandatory Consideration of the Paris Agreement in National Policy Statements Established by UK Supreme Court

Introduction

The case of Friends of the Earth Ltd & Ors v. Heathrow Airport Ltd ([2020] UKSC 52) addressed the legal obligations of the UK Government in incorporating international climate commitments, specifically the Paris Agreement, into domestic national policy statements (NPS). The appellants, including environmental organizations Friends of the Earth (FoE) and Plan B Earth, challenged the Government's designation of an NPS supporting the construction of a third runway at Heathrow Airport. Central to the dispute were claims that the NPS failed to consider the UK's obligations under the Paris Agreement, thereby rendering the policy framework unlawful.

Summary of the Judgment

The United Kingdom Supreme Court ultimately sided with Friends of the Earth and Plan B Earth, overturning previous decisions by the Divisional Court and Court of Appeal. The Supreme Court declared that the Government had acted unlawfully by not adequately considering the Paris Agreement within the designated NPS. The judgment emphasized that national policy statements must align with international climate commitments, reinforcing the integration of global environmental objectives into domestic planning processes.

Analysis

Precedents Cited

The judgment referenced several key legal precedents and principles, including:

Inland Revenue Commissioners v MFK Underwriting Agents Ltd [1990]: Established criteria for legitimate expectations in administrative law.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]: Introduced the Wednesbury standard for judicial review based on irrationality.
Attorney General v De Keyser's Royal Hotel Ltd [1920]: Addressed the ousting of prerogative powers by statute.
R (Miller) v Secretary of State for Exiting the European Union [2017]: Demonstrated the protection of statutory responsibilities over prerogative powers.

These precedents underscored the court's role in interpreting statutory obligations and maintaining the balance between executive discretion and legislative mandates, especially concerning environmental policies.

Legal Reasoning

The Supreme Court's reasoning hinged on several critical points:

Statutory Interpretation: The court adopted a purposive approach to interpreting section 5(8) of the Planning Act 2008 (PA 2008), which mandates that NPS must account for Government policies related to climate change mitigation and adaptation.
Government Policy Definition: It was clarified that "Government policy" encompasses formal, clear, and unambiguous written policies, not informal statements or international treaties like the Paris Agreement unless explicitly incorporated into domestic law.
Discretion and Rationality: The court reaffirmed that while government bodies have discretion in policy formulation, such decisions must not be irrational. The omission of explicit references to the Paris Agreement in the NPS was deemed irrational given the UK's ratified obligations.
Integration of International Commitments: Emphasized that international agreements, when ratified, impose binding obligations that must be reflected in national policies to ensure coherence and legal compliance.

The court concluded that the Government had failed to adequately integrate the Paris Agreement into the NPS, violating statutory requirements and rational policy-making principles.

Impact

This landmark decision has profound implications for future infrastructure projects and environmental policymaking in the UK:

Enhanced Scrutiny of NPS: National Policy Statements will now be subject to rigorous examination to ensure alignment with international climate commitments.
Alignment with International Law: Strengthens the duty of the UK Government to harmonize domestic policies with its international obligations, particularly in environmental protection.
Judicial Oversight: Expands the role of courts in enforcing legislative compliance, ensuring that executive actions do not deviate from statutory mandates.
Environmental Governance: Promotes greater accountability and transparency in policy formulation, encouraging sustainable development practices.

Consequently, infrastructure developers and planners must now more diligently incorporate and demonstrate compliance with international agreements in their project proposals and policy frameworks.

Complex Concepts Simplified

National Policy Statement (NPS)

A National Policy Statement is a strategic policy document issued by the UK Government that sets out the national policy framework for major infrastructure projects. It guides the decision-making process for granting development consent orders (DCO) under the Planning Act 2008.

Development Consent Order (DCO)

A Development Consent Order is a type of planning permission required for nationally significant infrastructure projects, such as the construction of a new runway at an airport. It is granted by the Secretary of State after a detailed examination process.

Strategic Environmental Assessment (SEA)

SEA is a systematic process used to evaluate the environmental effects of proposed policies, plans, or programs before they are adopted. It ensures that environmental considerations are integrated into the decision-making process.

Wednesbury Standard

The Wednesbury standard is a legal principle that allows courts to review administrative decisions to ensure they are not "irrational" or made without a reasonable basis. It serves as a check on executive discretion.

Legitimate Expectations

This concept protects individuals from arbitrary changes in administrative policies or practices. If a public authority has established a clear expectation through its policies or communications, it must adhere to them unless there's a substantial reason not to.

Conclusion

The Supreme Court's decision in Friends of the Earth Ltd & Ors v. Heathrow Airport Ltd represents a pivotal moment in UK environmental law. By mandating the incorporation of international climate commitments into national policy statements, the judgment reinforces the legal obligations of the Government to uphold its ratified international agreements. This ensures that major infrastructure developments are scrutinized not just for their economic and social impacts but also for their alignment with global environmental sustainability goals.

Moving forward, this precedent will guide the formulation of National Policy Statements, compelling them to reflect the UK's commitments under treaties like the Paris Agreement. It underscores the judiciary's role in safeguarding environmental governance and promoting sustainable development through stringent legal oversight.