On 27th February 2020, the Court of Appeal handed down its judgment in a judicial review case brought by environmental activists, including Friends of the Earth and Greenpeace. The judgment prevents the plan for a third runway in its current form, but does not go so far as ruling out a third runway altogether, as this would go beyond the court’s role in a judicial review case.
The expansion of Heathrow has been a topic of hot debate for some time. Proponents of the runway claim that if the United Kingdom is to maintain its status as a leading aviation hub, its aviation capacity must increase. Several candidates were put forward for an additional runway, but in 2018 the government issued the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the South East of England” (the “ANPS”), confirming plans to build a third runway at Heathrow. The additional runway would make Heathrow the world’s busiest airport.
Critics of these plans have cited the disruption to those living nearby (it would require over 700 homes to be demolished), the noise and, in particular, environmental pollution that the additional runway would cause. High profile critics of the expansion plans include Mayor of London Sadiq Khan, Zac Goldsmith, who resigned his Richmond seat over the government’s plans, and most importantly the Prime Minister Boris Johnson, who famously claimed in 2015 that he would “lie down in front of those bulldozers and stop the construction”. Johnson’s constituency, Uxrbidge and Ruislip is close to Heathrow and would be affected by the expansion.
The judicial review claim challenged the legality of the ANPS on multiple grounds but was rejected by the Divisional Court in May 2019. The Court of Appeal (a three-person panel of Lords Justice Lindblom, Singh and Haddon-Cave) upheld some of the Divisional Court’s ruling but diverged in one crucial aspect.
The ANPS was issued as a policy statement under Clause 5 of the Planning Act 2008. Clause 5(8) of the Planning Act requires any policy statement issued under it “to 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 appellants argued that when he issued the ANPS, Chris Grayling, the Transport Secretary at the time, had failed to take account of the UK’s obligations under the Paris Climate Agreement (the “PCA”). The PCA is an international treaty that aims to strengthen the global response to the threat of climate change by keeping a global temperature rise this century well below 2° C above pre-industrial levels, and to pursue efforts to limit the temperature increase even further to 1.5° C. The UK ratified the PCA in 2016.
The Court held that the PCA was clearly part of Government policy when the UK ratified the treaty and that since the Transport Secretary had failed to take it into account (he had received legal advice that he did not need to), the ANPS was unlawful (see paragraphs 222-233 of the judgment).
However, the Court was keen to stress that its judgment was limited to this question of how the ANPS had been created and issued. It was not stating that the third runway itself was illegal:
We have made it clear that we are not concerned in these proceedings with the political debate and controversy to which the prospect of a third runway being constructed at Heathrow has given rise. That is none of the court’s business. […]
Our decision should be properly understood. We have not decided, and could not decide, that there will be no third runway at Heathrow. We have not found that a national policy statement supporting this project is necessarily incompatible with the United Kingdom’s commitment to reducing carbon emissions and mitigating climate change under the Paris Agreement, or with any other policy the Government may adopt or international obligation it may undertake. That is not the outcome here. However, the consequence of our decision is that the Government will now have the opportunity to reconsider the ANPS in accordance with the clear statutory requirements that Parliament has imposed. (Paragraphs 281 and 285)
Although Heathrow have signaled their intention to appeal this decision to the Supreme Court, the Government have accepted the decision and will not appeal it. Grant Shapps, the current Transport Secretary tweeted: “Airport expansion is core to boosting global connectivity. We also take seriously our commitment to the environment. This Govt won’t appeal today’s judgement given our manifesto makes clear any #Heathrow expansion will be industry led”.
Regardless of the appeal of this case, the limited nature of the judgment suggests that the Government could still move ahead with the expansion if it issues a new policy statement, showing that it has taken the UK’s commitments under the PCA into account. However, it may decide to draw a line under the Heathrow expansion plan, which, as noted above, Boris Johnson has criticised in the past.
The judgment is of broader relevance to global climate activism in holding a government to its commitments in the PCA. Although PCA is seen as a landmark moment in the fight against climate change, there some activists who are concerned that it is no more than governments paying lip service to the crisis. The Court of Appeal’s confirmation that it needs to be taken into account as part of government infrastructure plans will be welcomed by activists around the world, and we can expect to see more examples of climate litigation in the coming years.