Author: Kathryn Wilson
In 2018, the government published the ANPS (Airports National Policy Statement) which provided for a clear intention to create a third runway at Heathrow Airport. Plans which had been set in motion for this development have been thrown into doubt after environmental campaigners challenged the UK government in court. The Court of Appeal of England and Wales ruled that the UK government’s proposed expansion was unlawful because it did not sufficiently take account of international climate change commitments, namely the Paris Agreement. The challenge was brought by a number of local authorities, the Mayor of London, Greenpeace, Friends of the Earth Ltd and Plan B Earth.
The court recognised its limited role when exercising its jurisdiction in claims for judicial review. It concluded that the challenges should succeed on the grounds of section 5(8) of the Planning Act. This is the legislative provision concerning the government’s policy and commitments on climate change. Section 5(8) of the Planning Act requires that the reasons for the policy set out in the ANPS ‘must include an explanation of how the policy set out in the statement takes account of government policy relating to the mitigation of and adaption to climate change’. The Paris Agreement pledges to dramatically reduce carbon emissions in order to keep global temperature increases below 1.5 degrees Celsius.
The conclusion was that the designation of the ANPS was unlawful by the failure to take into account the government’s commitment to the provisions of the Paris Agreement on climate change, concluded in December 2015 and ratified by the United Kingdom in November 2016. The ANPS was not produced as the law requires, nor as parliament provided in the statutory regime. This ensures that climate change must be factored into the government’s national aviation policy, despite previous claims from ex-transport minister Chris Grayling that the Paris Agreement could effectively be ignored.
The appropriate remedy was considered to be a declaration, the effect of which will be to declare the designation decision unlawful and to prevent the ANPS from having any legal effect. The ANPS would only regain its legal footing if the secretary of state has undertaken a review of it in accordance with the relevant statutory provisions and the court’s judgement. That is not to say that there shall never be a third run at Heathrow, or that it is necessarily incompatible with the Paris Agreement. The result is simply that the government must now reconsider the ANPS in accordance with the clear statutory parliamentary limits.
The government has not opposed the grant of a remedy nor sought permission to appeal to the Supreme Court. However, there are a number of other options open to it at this point; it could rewrite the ANPS to take account of the Paris Agreement. This would require significant policy changes which may too result in further legal challenge down the line. While it is uncertain if the runway will still go ahead in due course, this court decision is clearly a major barrier for those supporting the airport’s expansion to overcome.
In months to come, Glasgow is due to host the COP26, a worldwide climate conference in which governments collaborate to find solutions to the climate crisis. This will likely reveal the government’s intentions with this third runway.