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British High Court finds UK net zero strategy unlawful

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In a move reminiscent of the call for credibility in corporate transition plans, the High Court found the UK plan was unlawful because it didn’t explain how the government would achieve net zero. This is a further signal that legal action on climate change issues is gaining momentum.

News of the ruling provides support for the importance of climate advocacy. There are currently over 2,000 climate-related court cases in various stages around the world. According to the latest edition of the Global Trends in Litigation report, roughly 800 such cases were filed in the 28 years between 1986 and 2014 but over 1,200 cases have been filed in the subsequent eight years to mid-2022, of which roughly 300 were filed in the last one and a half years.

Climate litigation cases on the rise

Thirty-nine of these new cases were filed before courts in the United States and the remaining 122 cases were filed before the courts of 43 other countries and 15 international or regional courts. Climate litigation has therefore become a reality in four new countries and two new international and regional courts in the last year alone. While many of the cases are against fossil fuel companies, there is a growing trend towards litigation on greenwashing and misrepresentation.

Will ecocide become the fifth international crime?

Following the landmark UN Human Rights Council resolution recognising the right to a healthy environment passed on 8 October 2021, climate change actions against corporates have accompanied a growing recognition of human rights responsibilities. Legal scholars have even drafted a legal definition for ‘ecocide’, meaning harm against nature, and are calling for it be recognised by the International Criminal Court.

If adopted, ecocide would be the fifth international ‘crime’ alongside war crimes, crimes against humanity, genocide and the crime of aggression.  While an attempt to get it passed failed in 2021, an EU report on liability for environmental harm suggests that the EU might explore the idea.

UK net zero strategy breaches the UK’s own Climate Change Act

In the UK, the High Court has concluded that the government’s net zero strategy was in breach of the Climate Change Act, and needs to be strengthened. The case was brought by Client Earth, alongside Friends of the Earth and Good Law Project.

The Climate Change Act of 2008 legally binds the government to carbon budgets that set limits on the UK’s greenhouse gas emissions (GHG) during five-year periods. They include a target to be over three quarters of the way to net zero in the next 13 years – meaning that the amount of greenhouse gas emissions in the UK is equal to or lower than the amount of greenhouse gases removed from the atmosphere, also within the UK.

Yet the strategy contained not a single time-bound, sector-specific emissions reduction target, considered one of the core requirements of credibility in net zero commitments.

The UK has also committed internationally to reduce its emissions by at least 68% by 2030 from 1990 levels, as part of its ‘Nationally Determined Contribution’ (NDC) under the Paris Agreement. In a statement Client Earth said that “missing these targets would have severe consequences for the public’s future health and prosperity. To avoid this risk, the government has to show that its policies are sufficient to meet them.”

Disconnect between UK commitments and politics

On the release of its net zero strategy in October 2021, UK Prime Minister Boris Johnson said the Government had centred its plans on the principle of “leaving the environment in a better state for the next generation” and releasing them from the financial burden of adapting to a warming planet.

However, the government’s latest published forecasts show the UK’s projected emissions in 2033-2037 being more than double the levels the government is legally required to adhere to. And, says Client Earth, the government is also relying heavily on unproven technologies, whilst overlooking viable current solutions that would have immediate impact, including solutions recommended by the Climate Change Committee (CCC).

UK net zero strategy missing 5% of emissions for Sixth Carbon Budget

According to Client Earth, an important revelation from the hearing was that the UK government has excluded significant detail from the net zero strategy that would allow Parliament and the public to properly assess the plans – including a key target to cut emissions. It was also discovered during the court case that the government’s plans only added up to 95% of the reductions needed to meet the sixth carbon budget.

Behind-the-scenes calculations by civil servants to determine the impact of emissions cuts from policies in the government’s net zero strategy did not add up to the reductions necessary to meet the sixth carbon budget. The sixth carbon budget is the volume of GHGs the UK can emit during the period 2033-37. And critically, the reliability of this figure as a realistic estimate remains in doubt.

High Court ruling finds the government must submit a new strategy

The High Court found that the net zero strategy, which sets out plans to decarbonise the economy, doesn’t meet the Government’s obligations under the Climate Change Act to produce detailed climate policies that show how the UK’s legally binding carbon budgets will actually be met.

The ruling stated that Greg Hands, the Minister for Business, Energy and Industrial Strategy, who was responsible for signing off on the strategy, didn’t have the legally required information on how the carbon budgets would be met when he did so.

The UK government now has eight months to update its climate strategy to include a quantified account of how its policies will actually achieve its climate targets. These will have to be based on a realistic assessment of what the strategy can actually be expected to deliver and should include sound policies that stand up to the scrutiny of the Climate Change Committee (CCC). The updated strategy will have to be presented to Parliament for scrutiny by MPs.

Sam Hunter-Jones, ClientEarth lawyer, said that “this decision is a breakthrough moment in the fight against climate delay and inaction. It forces the government to put in place climate plans that will actually address the crisis. It’s also an opportunity to move further and faster away from the expensive fossil fuels that are adding to the crippling cost-of-living crisis people are facing.”

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