R (Boswell) v Secretary of State for Transport (A47 road extension)

At various dates in 2022, the Secretary of State granted development consent for three road schemes along the A47 in Norfolk, England. The schemes were all within a twelve-mile radius of the city of Norwich. They would create two new dual carriageways and develop an existing road junction. Before consenting each scheme the Secretary of State assessed the carbon emissions expected to be generated by each scheme. He concluded that, when compared with the UK’s national carbon budgets, the increase in emissions from each scheme would not be significant. The claimant brought public law challenges to each of the three decisions. He challenged the Secretary of State’s failure to compare the combined carbon emissions from the three A47 schemes against the UK’s national carbon budgets. Giving judgment in July 2023, the High Court dismissed the claim, holding: 1. The question of what impacts should be addressed cumulatively; how the cumulative impacts might occur; whether the effects are likely to be significant and if so how they should be assessed are all matters of evaluative judgment. 2. The decision makers chose to assess the significance of carbon emission against a national target (UK carbon budgets). Other benchmarks were considered but discounted. The benchmark for the assessment of significance was a matter of judgement for the decision maker. 3. The use of national carbon budgets as a benchmark for the assessment of carbon emissions has been confirmed as a lawful approach (R (GOESA) v Eastleigh Borough Council). 4. The decision makers also proceeded on the basis that there is no geographic limit to the impact of GHG emissions. Their impact is on the global atmosphere. That is a scientific assessment to which the Court affords respect (R (Mott)v Environment Agency). 5. In circumstances where the significance of carbon emissions is being assessed against a national target and the impacts of GHG emissions do not have a geographical limit, there is a logical coherence to the Secretary of State’s decision not to undertake a comparison of combined emissions against the national target. 6. Whilst compliance with relevant industry guidance does not, of itself, demonstrate compliance with Environmental Impact Assessment Regulations, it is a legitimate way for the Court to assess the exercise of judgement in circumstances where there is no single prescribed approach to the assessment of cumulative carbon impacts or to gauging the significance of the climate impacts of a development project in the context of EIA. 7. There is no scientific rationale for the selection of a particular collection of local schemes for comparison against a national target. 8. The fact that there may be other approaches to the assessment of cumulative impacts, does not take the Secretary of State’s approach outside the range of reasonable responses available to him as the decision maker, or mean that it was based on flawed reasoning. 9. The Court was not persuaded that his approach to the assessment of cumulative carbon emissions was unlawful and/or in breach of the IEIA Regulations. Giving judgment in February 2024, the Court of Appeal dismissed Dr Boswell’s appeal, for reasons broadly similar to those given by the High Court. The appeal focussed on the duty in the EIA regulations to consider the significance of the cumulative GHG emissions. That duty had not been breached. Carbon emissions have no geographical boundary, so their impact is not confined to the local area. This differs from other environmental impacts which are local, such as noise or flood risk, where it makes sense to consider them in conjunction with other similar impacts to see if their cumulative impact may be greater than the sum of their individual impacts measured in isolation. The decision to not compare the combined emission against the national target was logically coherent. Such an assessment would have been scientifically pointless. Nor was it required under the EIA regulations, which included no hard-edged provisions supporting Dr Boswell’s case. These were all issues of fact and evaluation for the Secretary of State, who had acted rationally. On March 21, 2024 Dr Boswell applied to the Supreme Court for permission to appeal. That application is pending.