Climate Change: fostering a new environment for litigation in Scotland? By Chris Stephen, Advocate*
I. Introduction
The environmental impact of the way in which countries and their respective governments conduct themselves is an issue never far from the headlines. In the political arena, Scotland played host to the 26th United Nations Climate Change Conference of the Parties (COP 26) held in Glasgow in late 2021. John Kerry, former candidate for US President and current US Special Presidential Envoy for Climate, spoke earlier this year in Edinburgh of the “climate crisis” the world now faces, where “humanity is inexorably threatened by humanity itself”.
With a UK general election likely looming next year, in 2024, the policies of the competing political parties concerning the environment could well be an influential issue for voters. In recent months, the current UK Government has, for example, announced a delay in the ban of the sale of new petrol and diesel cars in the UK from 2030 until 2035, whilst also announcing its support for a moratorium on the granting of exploitation licenses for deep sea mining projects, until the impact of such mining upon ecosystems is fully understood.
Following COP 21 in 2015, countries agreed under the resulting Paris Agreement to hold the increase in the global average temperature to well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 degrees Celsius above pre-industrial levels. Eight years on, COP 28 will be held in the United Arab Emirates later this month. Ahead of that imminent summit, however, the UN Secretary General has lamented that the emissions gap is more like an “emissions canyon” that is “littered with broken promises, broken lives and broken records.”
Against that backdrop and possibly reflective of a frustration felt by some about the pace of political progress, it is perhaps unsurprising that affected countries and individuals are turning to law and the courts – both international and domestic – to seek to define environmental legal obligations and attempt to hold countries to account for any alleged breaches of those legal standards.
II. International
At the international level, advisory opinions are being sought in, for example, the International Tribunal for the Law of the Sea (ITLOS) in Hamburg and the International Court of Justice (ICJ) in The Hague concerning the adverse effects of climate change. The former request is focused on the legal obligations of States under the UN Convention on the Law of the Sea (UNCLOS) towards the marine environment. The latter possesses a broader scope, the UN General Assembly’s request to the ICJ being framed with “particular regard” to a range of international treaties and obligations, including the 2015 Paris Agreement.
The public hearings in the ITLOS case ended in September 2023. The Tribunal will now deliberate on the case, with the outcome expected next year. The ICJ proceedings are less well advanced. Following the grant of an extension of time for written statements and then written comments on those earlier statements to be made, these proceedings are still at the written phase. Oral proceedings will almost inevitably follow on an issue of this importance and given the level of State participation. In both instances, neither advisory opinion handed down will be formally legal binding. They will nevertheless still carry great legal weight and moral authority.
The European Court of Human Rights (ECtHR) in Strasbourg is also addressing the effects of climate change in the case of Duarte Agostinho and Others v Portugal and 32 Others (no. 39371 / 20). The six applicants in that case are Portuguese nationals aged between 11 and 24 who argue that the 33 States concerned are failing to comply with their Convention obligations (e.g., under Articles 2, 8 and 14 of the ECHR) when read in the light of their undertakings under the Paris Agreement.
Leaving the merits of the claims aside, also perhaps of real interest will be the ECtHR’s findings regarding the threshold jurisdictional questions of: (i) extra-territorial jurisdiction (the case having been brought against 32 other States other than Portugal); and (ii) domestic remedies not having been exhausted by the applicants prior to coming to Strasbourg. A hearing before the Grand Chamber took place on 27 September 2023 and a judgment is awaited.
III. Domestic
Climate change-related legal activity is also evident in both Scotland and England & Wales.
In September 2023, the Scottish Government was threatened with judicial review proceedings by the Environmental Rights Centre for Scotland (ERCS), supported by the Good Law Project. The ECRS pre-action letter asserted that the Scottish Ministers had failed to discharge their duty under domestic legislation, namely section 94A of the Climate Change (Scotland) Act 2009, to publish an assessment of the extent to which investment in accordance with their infrastructure investment plan would contribute to the meeting of emissions reductions targets. The Scottish Government has since responded to that letter to acknowledge that the documentation published “falls short” of what is required under section 94A and that “[u]rgent work is underway on a remedy”.
In England & Wales an ever-growing body of jurisprudence in this area continues to accumulate. This includes, for example, those cases considering the extent to which decision-makers should consider the UK’s obligations under the 2015 Paris Agreement.
For example, in R (Friends of the Earth) v Secretary of State for Transport [2020] UKSC 52 the claimants brought judicial review proceedings challenging the lawfulness of the Secretary of State’s decision to designate an airports national policy statement (NPS) made pursuant to the Planning Act 2008. The UK Government had accepted the case for airport expansion, a third runway at Heathrow Airport being one of the shortlisted options and the UK Government’s preferred option. The claimants alleged inter alia that the Secretary of State had, when promulgating the NPS: (i) failed to take account of the reduction targets for greenhouse gas emissions contained in the Paris Agreement; and (ii) was in breach of section 5(8) of the 2008 Act for failing to have regard to “Government policy” under that section.
The UK Supreme Court (UKSC) held that the statutory phrase “Government policy” must be given a relatively narrow meaning to operate sensibly (paragraph 105). The epitome of “Government policy” was a formal written statement of established policy. Such a statement would qualify as policy only if clear, unambiguous and devoid of relevant qualification (paragraph 106). The UK’s ratification of the Paris Agreement was not a statement of Government policy in the requisite sense of the statutory phrase: ratification was an act on the international plane and did not constitute a commitment operating on the domestic plane to perform obligations under the treaty (paragraph 108). Nor did two Ministerial statements given in 2016 fall within that statutory phrase, but instead reflected an inchoate and developing policy (paragraph 112). The UKSC ultimately concluded that the Secretary of State’s view that the Paris Agreement had been sufficiently taken into account for the purpose of designating the NPS was a rational one (paragraph 132).
In another example of R (Friends of the Earth) v Secretary of State for International Trade [2023] EWCA Civ 14 the claimant sought judicial review of the Secretary of State’s decision to approve the provision by UK Export Finance (UKEF) of a $1.15 billion investment in a liquified natural gas project in Mozambique on the basis that the project was incompatible with the UK’s obligations under the Paris Agreement. The English Court of Appeal dismissed the appeal. The Court concluded that the Paris Agreement was pre-eminently an unincorporated international treaty not giving rise to domestic legal obligations. The defendants had chosen to have regard to it, but were not compelled by domestic law to do so. The Paris Agreement was also, the Court held, only one of a range of factors to which the defendants decided to have regard in reaching their decision. The Court held that tenability was the correct standard by which such decisions must be judged, the compliance question being hugely complex and beset by uncertainties (paragraphs 40 and 50). Thus the question of whether it was an error of law for the defendants to conclude that funding the project was aligned with UK obligations under the Paris Agreement turned on whether a “tenable” view had been adopted. In the Court’s view, it was not irrational for the defendants to provide finance for the project – that was at least a “tenable” view (paragraph 56).
In a third example of R (Greenpeace) v Secretary of State for Energy Security and Net Zero [2023] EWHC 2608 (Admin) two claims for judicial review primarily concerned decisions taken by the Secretary of State in connection with the licensing by the Oil & Gas Authority of further offshore oil and gas exploration and production. A central issue was whether the Secretary of State acted unlawfully by not including the “downstream” or “scope 3” emissions of greenhouse gases in his strategic environmental assessment (SEA) of the plan in question.
The Court was not satisfied that the claimants had demonstrated the reasoning of the Secretary of State to be irrational on this issue. The Government’s response to a consultation on the scoping report for the SEA of the plan had explained why the end use of products made from extracted oil and gas would not be included in the SEA: for example, much would be exported as crude oil and sold onto the worldwide market for refining and consumption in a variety of locations. These end uses would result in greenhouse gas emissions, but those were likely to be far removed in time and space from development that might take place pursuant to the plan. The nature, location and extent of such effects were not sufficiently causally connected to the implementation of the plan to be taken into account in the SEA. The Secretary of State ultimately concluded that these “downstream” emissions would not constitute a likely significant effect of the plan. In the Court’s view, what had to be considered was the necessary degree of connection required between the development and its putative effects (paragraph 100). It was “impossible” to say there was a flaw in the Secretary of State’s reasoning, let alone that it was irrational (paragraph 105). This case will not, however, be the last word on the issue of “scope 3” emissions, with judgment awaited from the UKSC in the case of Finch, as noted in section IV below.
IV. Conclusion
This growing trend towards the utilisation of courts, both international and domestic, to demarcate and police countries’ environmental legal obligations appears unlikely to diminish any time soon. That is particularly so if those affected deem political progress on this key issue of global concern to be too slow or insufficient or that legal standards are not being upheld.
So far as the domestic level is concerned, there would appear to be few formal victories for claimants bringing climate change-related challenges (although a recent judicial review claim alleging a failure to comply with sections 13 and/or 14 of the Climate Change Act 2008 in R (Friends of the Earth) v Secretary of State for Business, Energy and Industrial Energy [2023] 1 WLR 225 was allowed, in part). That being said, the aim(s) of public interest litigation should not necessarily be narrowly understood as securing a formal legal success. The aim(s) of such litigation may be multifaceted including to, in whole or in part, put (or maintain) the spotlight on a particular issue or cause.
The domestic courts have, repeatedly, re-iterated the proper ambit of judicial review. In R (Finch on behalf of the Weald Action Group) v Surrey County Council and others [2022] EWCA Civ 187 (“Finch”) at paragraph 3, the Senior President of Tribunals (Lindblom) expressed the matter in the following terms:
“The task of the court in a claim such as this is only to decide the issues of law. Those issues cannot extend into the realm of political judgment – which is the responsibility of the executive, not the courts – or into the domain of policy-making, or into the substantive merits of the decision under challenge. They can embrace matters of law. But they cannot call into question the decision-maker’s exercise of evaluative judgment, except where the principles of public law allow. All this is well-established. And as this court has made clear several times, it applies no less to cases whose subject matter concerns greenhouse gas emissions and climate change than it does to all others …”.
The legal landscape in this area will continue to evolve, not least in light of the activity before international courts highlighted in section II above. In the domestic sphere, the UKSC’s future judgment in the Finch appeal – concerning the extent to which “scope 3” or “downstream” greenhouse gas emissions should be taken into account by decision-makers – will also be of real significance and interest in this area, not least as the Inner House of the Court of Session has previously agreed with the reasoning of the English High Court in Finch in the case of Greenpeace v Advocate General for Scotland (representing the Secretary of State for Business Energy and Industrial Strategy) and the Oil & Gas Authority [2021] CSIH 53 at paragraphs 64-65.
The recent threat of legal action against the Scottish Government in respect of s94A of the 2009 Act arguably fires a shot across the bows; it may indicate how future challenges in Scotland could be framed by using climate-related targets or obligations contained in domestic legislation as a lever to hold decision-makers to account through judicial review.
It is also worthy of note that the Scottish Government’s recent consultation on a Human Rights Bill for Scotland floats the idea of recognising and including the right to a healthy environment – including a safe climate – within such a Bill. That consultation has only recently closed to responses and the text of any draft Bill and thus any future domestic legislation is presumably some way off. However, should such a right be enshrined in domestic law in due course, it could well be the courts which are once again called upon, through litigation, to authoritatively determine the parameters of any such right.
*Chris Stephen is an advocate practising in, among other areas, public law and international law. He can be contacted via clerks@themis-advocates.co.uk. The text of this article is based upon a talk delivered to lawyers in the Government Legal Service for Scotland (GLSS) on 22 November 2023. Any views expressed are those of the author.
