The Scotsman

Growing profusion of legal challenges on commitment­s to Net Zero policies

By holding government­s firmly to account, individual­s and groups committed to campaignin­g hope for swift action over climate change,

- says Marc Armstrong

This summer’ s North Lowther energy v Scottish Ministers judicial review decision provided further evidence of a growing wave of postCOP26 challenges to authoritie­s over their commitment in delivering on Net Zero pledges.

This case raised arguments about whether Scottish ministers had proper regard to their legal obligation­s arising from Scottish Parliament climate change legislatio­n and related Scottish Government policy commitment­s in their refusal to grant consent for a Dumfries and Galloway wind farm developmen­t. The court concluded that while such legislatio­n and policy are important considerat­ions in the consenting process, the weight each factor should be given was for the decision maker’s judgment.

In this case, more weight was given towards visual impact than climate implicatio­ns but if the new National Planning Framework 4 is approved by the Scottish Parliament later this year, it may change that approach. We could then see increasing opportunit­ies for activists, NGOS and other interested parties to press authoritie­s on all aspects of climate change policy. London School of Economics picked up on this emerging trend in a report released last month which highlights how 80 framework litigation cases have been filed globally since the end of July.

Over a summer of record-breaking temperatur­es, UK ministers were challenged by Friends of the Earth over the lack of policy detail around its Net Zero Strategy. In that case, the High Court concluded the UK Government had not sufficient­ly met its obligation­s and sent it away to do necessary additional work.

These developmen­ts are part of a wider pattern of other recent challenges raised in UK courts over climate change-related issues. This includes cases involving the likes of Heathrow Airport and Drax Power Station, and Plan B Earth’s unsuccessf­ul challenge against UK ministers over their failure to take steps to reduce greenhouse gas emissions. The mood music in those cases has been that policy setting is for the Executive. The courts’ role is a separate and limited one of determinin­g whether decisions are reached lawfully and rationally.

By contrast, recent cases in other countries, including Germany and The Netherland­s, have seen NGOS and individual citizens successful­ly taking action in an attempt to force policy change, requiring government­s to take a more ambitious approach on addressing climate change.

As the UK Government aims to address the cost- of-living crisis and looks to enhance energy security in light of the Russian invasion of Ukraine, we are now seeing a fresh focus on either non-sustainabl­e or controvers­ial energy sources including fracking, licensing for further North Sea oil extraction, and the building of new nuclear power stations. These developmen­ts will likely drive further climate changebase­d court challenges. And while the UK courts may not be prepared to order policy change, as courts in other jurisdicti­ons have, such litigation can have an important profilerai­sing role.

Both the Scottish and UK government­s are facing difficult choices at a time where we are experienci­ng rising inflation and falling living standards for consumers on one hand, but a push to adhere to or even extend Net Zero commitment­s on the other.

Energy-related planning and licensing processes, especially those involving fossil fuels or nuclear power, will continue to be scrutinise­d closely with judicial challenges from individual­s and NGOS more likely than ever. This will also apply to any government decisions which prevent the progress of sustainabl­e energy developmen­ts, as we saw with the North Lowther Energy v Scottish Ministers judicial review.

By holding government­s firmly to account, individual­s and groups will hope they bring swifter action over climate change. The increased number of legal challenges on these matters is therefore set to continue. Marc Armstrong is a Partner and energy specialist in the Dispute Resolution team at law firm CMS

 ?? ??

Newspapers in English

Newspapers from United Kingdom