judgment

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

Litigation

Sabin

Sabin Litigation

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

Filing Year For Action

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.

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

The Climate Litigation Database

Find climate change litigation data and indicators for {text}.

{text} litigation

Sabin Center for Climate Change Law provides Climate Litigation Database, a comprehensive database of US and Global climate change caselaw

Quickly and easily search through the complete text of thousands of climate change law and policy documents from every country.

Search the Climate Litigation Database

An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

A target to reduce the prevalence of a greenhouse gas over a specific time frame

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

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

Target

Risk

Greenhouse gas

Economic sector

Finance