28 February 2020
On 27 February 2020, the expansion plans for Heathrow airport were ruled unlawful on environmental grounds by the United Kingdom's ('UK') Court of Appeal. The Court of Appeal found that the UK Government had failed to take into account commitments made under the 2016 Paris Agreement on climate change.
The UK Government supported Heathrow's longstanding plans to develop a third runway through the 'Airports National Policy Statement' ('ANPS'). A court case against the decision to designate the ANPS was first brought before the Divisional Court, which found that the UK Government's policy was produced lawfully. Local residents, councils, the mayor of London and environmental groups including Greenpeace then brought the case before the Court of Appeal ('the Court').
The UK Government accepted that, in designating the ANPS, only the national Climate Change Act emission targets were considered. The Court mentioned that the Climate Change Act set a 'carbon target' for the UK to reduce its greenhouse gas emissions by 80% by 2050 compared to 1990 levels. This was consistent with the global temperature limit in place in 2008, which was 2°C. The Court then reiterated that the Paris Agreement enshrines a firm commitment to restricting the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels. The Court reviewed the UK's statutory regime for the formulation of national policy statements as incorporated in the UK Planning Act, more specifically section 5(8) which 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 adaptation to, climate change'. The Court found that consequently the provisions of the Paris Agreement should have been taken into account in adopting the ANPS but they were not. According to the Court, this means that the UK Government has not considered its own firm policy commitments on climate change under the Paris Agreement. The Court concluded that this aspect is 'legally fatal' to the ANPS in its present form.
The Court emphasised that its decision does not venture into the merits of expanding Heathrow by adding a third runway, as that is ultimately a political decision reserved for the government. The Court also stated that it has not decided that national policies supporting the expansion of Heathrow are necessarily incompatible with the UK's commitment under the Paris Agreement. Notwithstanding, the ANPS should have been reviewed in light of the Paris Agreement and will have no legal effect until and unless it is reconsidered. Heathrow airport has announced it will appeal the judgment at the Supreme Court.
This judgment marks the first time that a court has prohibited the expansion of a national airport on the basis of the Paris Agreement. The decision emphasised that under certain circumstances governmental policies must be reviewed in light of the Paris Agreement. The judgment might have consequences for other airport expansion plans, for instance, those of Schiphol airport in the Netherlands. Schiphol intends to expand its airport and to open an additional airport in Lelystad. Environmental groups are exploring the legal possibilities for objecting to the expansion plans of Schiphol airport and have already indicated that they will closely study the judgment by the Court of Appeal. In the Netherlands, it was announced earlier that an environmental permit application by BP for a plant that would actually produce cleaner fuels would be the first to be the tested against the Paris Agreement, as it would result into extra CO2 emissions. The outcome of this is expected in 2020.
