R(Friends of the Earth Ltd) v Secretary of State for Energy Security and Net Zero; ClientEarth v SSESNZ; Good Law Project v SSESNZ (challenges to the Carbon Budget Delivery Plan)

In June 2021, the UK’s sixth carbon budget was set, covering the period 2033 to 2037. In November 2021 the government published its strategy for meeting that and the other preceding carbon budgets. However, that strategy was held to be in breach of the Climate Change Act 2008 – {see our reporting on R(Friends of the Earth, ClientEarth and Good Law Project) v SSBEIS [2022] EWHC 1841 (Admin)}. The court ordered the government to revise its strategy to correct the legal errors identified. That revised strategy – the Carbon Budget Delivery Plan – was published in March 2023. However, that too was challenged on public law grounds in claims brought by Friends of the Earth, ClientEarth and the Good Law Project. Friends of the Earth’s challenge raised grounds under both section 13 and section 14 of the Climate Change Act. Under section 13, Friends of the Earth argued that the Secretary of State did not consider delivery risk in a lawful way, and that there was no legally sufficient basis for the Secretary of State to conclude that the proposals and policies “will enable” the carbon budgets to be met. Further, Friends of the Earth argued that the Secretary of State unlawfully failed to put forward proposals that “must” contribute to sustainable development. Under section 14, Friends of the Earth argued that the Plan unlawfully does not include information obviously material to the critical issue of risk to the delivery of the carbon budgets. Good Law Project's challenge focused on the government's refusal to include a proper assessment of the delivery risk associated with each of the policies and proposals in the Plan. Good Law Project argued that this is unlawful because it is a breach of section 14 , which requires the Secretary of State to publish sufficient information to allow meaningful scrutiny of the government’s net zero policies. ClientEarth’s challenge focused on the government’s failure to have regard to considerations that are legally essential under section 13, related to the risks of its plans not delivering the emissions savings required to meet the UK’s climate targets. ClientEarth also argued that the government’s assumption that the projected emissions savings from its policies will be delivered ‘in full’ was not rational having regard to the government’s own assessment of delivery risks to key policies. On May 3, 2024, the High Court sided with Friends of the Earth on two grounds. First, the Secretary of State breached § 13(1) of the Climate Change Act by failing to consider material considerations in the carbon budget. Second, the Secretary of State made unlawful and irrational assumptions in deciding that their emissions cuts would be fully delivered. The s13(3) test uses the word “must” which denoted a degree of certainty, whereas the Secretary of State’s conclusion that this would “likely” occur did not meet the higher threshold. Without factual justifications, the Court decided the State acted unlawfully. The Court found that the Secretary of State had not been adequately informed of the delivery risks associated with proposed policies, many of which were uncertain, unquantified, or lacked sufficient evidence of feasibility. The Court emphasized the need for transparent, evidence-based policymaking and ruled that the Secretary of State could not lawfully conclude that the carbon budgets would be met without properly assessing and disclosing delivery risks. As a result, the CBDP was declared unlawful, requiring further revision and compliance with statutory duties. Following this decision, the Court gave the government until October 2025 to revise and publish an updated version of The Carbon Budget Delivery Plan