Nine major policies from Boris Johnson that have faced legal challenges on climate grounds

From road expansions to the net-zero strategy, a lot of green frameworks have been challenged

As the dust settles on Johnson’s chaotic time as Prime Minister, the next leader of the Conservatives, whether Rishi Sunak or Lizz Truss, will have a long list of green policies to work on – namely responding to the cost of living crisis.

For all of Johnson’s faults as Prime Minister, he did introduce a number of landmark green strategies, including his eponymous Ten Point Plan for a Green Industrial Revolution. However, even some of the big frameworks, like the Net-Zero Strategy, have not been welcomed with open arms by the green economy. In fact, some have even been challenged in the courts on claims that they breach the UK’s overarching commitment to reach net-zero emissions by 2050 at the latest.

So as the curtain comes down on Boris Johnson’s time as Prime Minister (and you can read whether he was a climate leader or laggard here) edie has outlined the NINE green policy announcements, strategies and frameworks that his Government has introduced that have faced legal challenges.

1) Net-Zero Strategy

Published in autumn 2021 in the run-up to COP26, the Net-Zero Strategy was badged as a plan to align all major economic sectors with the UK’s forthcoming carbon budgets and 2050 net-zero aim.

But campaigners at Friends of the Earth and ClientEarth argued that the Strategy did not deliver. The Strategy was criticised for lacking time-bound, sector-specific requirements to reduce emissions. It also included targets which fell short of existing promises, such as the creation of 440,000 green jobs this decade, when more than a million had been promised.

The High Court ruled in July 2022 that the Strategy is “unlawful” and ordered policymakers to provide more detail and increase ambitions.

2) Heat and Buildings Strategy

At the same time as it launched its legal challenge to the Net-Zero Strategy, Friends of the Earth filed separate legal documents concerning the Heat and Buildings Strategy. Again, the group argued that it was not properly aligned with stated ambitions on deploying heat pumps and was not proven to be aligned with carbon budgets.

Additionally, the Strategy was challenged on social grounds. Friends of the Earth successfully argued that policymakers had not identified and properly considered the plan’s impact on vulnerable groups, as it is required to under the Equality Act 2010. The Government admitted outside of court that it should have conducted better explorations here and has promised a revision without a court order.

3) Storm Overflows Discharge Reduction Plan

The Department for Environment, Food and Rural Affairs (Defra) announced on 26 August what it claimed to be the “toughest ever” requirements for water companies to restrict and eventually end the practice of discharging untreated water.

Charity WildFish believes this is not true and has issued a letter before action, the first step in a potential judicial review. The letter urges Defra to withdraw the plan and states that court action will be considered if the withdrawal does not happen.

WildFish is arguing that, before last year’s vote, most storm overflows were illegal – making the new targets less ambitious than before. It will argue that the relaxing of these targets will “encourage” water companies to make discharges regardless of whether cause adverse ecological impact, breaching existing environmental pledges that are legally binding, for more than a decade. Read edie’s full story here.

4) Food Strategy

Last month, campaign group Feedback launched a legal challenge to the UK Government’s Food Strategy White Paper, arguing that the measures included are not sufficient to align the food sector with legally binding climate targets.

The White Paper was published in June, around one year after Leon’s Henry Dimbleby provided his recommendations to Ministers for shaping the approach. The majority of Dimbleby’s recommendations were not taken on board, leading to widespread disappointment across the food space, including from environmental groups and organisations working to tackle issues such as child hunger, food waste and public health.

Dimbleby himself said the documents “did not set out a clear vision as to why we have the problems we have now and what needs to be done”. More than 40% of his recommendations got no mention at all, and many others were modified.

On environmental issues specifically, the UK’s agriculture sector is responsible for around 12% of the UK’s annual greenhouse gas emissions and reductions have been minor over the past decade, according to the Climate Change Committee (CCC). It is also regarded as a contributor to land-use change that has driven biodiversity loss, with reductions in the UK’s wildlife abundance having proven the steepest in the past decade.

Feedback’s legal challenge to the White Paper is grounded in the argument that measures included are not sufficient to deliver emissions reductions consistent with the UK’s legally binding 2050 net-zero target an interim carbon budgets.

5) Sizewell C development consent approval

As well as facing challenges to its strategic approach, Johnson’s government had seen several high-profile challenges to specific projects. Perhaps most recent of them is Greenpeace’s opposition to the Sizewell C nuclear power plant.

Johnson’s Business and Energy Secretary Kwasi Kwarteng granted development consent to the 3.2GW plant in July 2022, stating that there is a “very substantial and urgent need” for the plant in the face of the energy trilemma – cost, carbon impact and energy security. This was to take presidence, he said, over concerns about the project’s impact on local nature and the amount of water it will need to abstract.

Greenpeace announced in August that it is preparing a legal challenge to the decision, arguing that these impacts must be properly considered. The organisation will also work with other opponents to argue that the Government has not properly considered how nuclear waste from the plant will be managed. The High Court has not yet decided whether it will hear the case and, if so, when.

6) Approval for Jackdaw. Cambo and Vorlich oil fields

The UK Government granted final regulatory approval for the Jackdaw project in early June 2022, just before the long weekend marking the Queen’s Platinum Jubilee. Policymakers have defended themselves by stating that the Shell-led project has been in the pipeline for years and that the decision does not lie with the government, but with the sector regulator.

Greenpeace, however, is running a legal challenge on the grounds that Ministers have not fulfilled the Government’s legal duty to assess the environmental impact of the project in full, including the burning of the extracted fossil fuels. The challenge was launched in July and the courts have not yet decided whether to hear the case and, if so, when.

Another oil and gas field to have faced a legal challenge from Greenpeace is Cambo. The campaign group first stated an intention to launch a legal challenge in the summer of 2021, from Friends of the Earth and Uplift. After Shell pulled out of the project in December 2021, the case died down, as development looked unlikely.

However, Greenpeace is preparing a further legal challenge this year, after the project had its licence extended and with Shell reportedly considering re-entering the project.It has stated that it will take legal action if a buyer for Shell’s stake is found and development begins again.

Greenpeace lost its court battle to block BP and Ithica Energy from extracting from the Vorlich oil field in 2021 after first launching proceedings in 2020. Its argument there was that the OGA failed to properly account for climate impacts associated with the burning of the fuels.

7) Failing to end fossil fuel subsidies

In a campaign called ‘Paid to Pollute’, a group of citizens took the UK Government’s Oil and Gas Authority (OGA) to court in 2021 over the way in which subsidies given to the sector were concealed from the public and accounted for (or not accounted for) in the interpretation of its purpose statement.

The OGA has a duty to “maximise the economic recovery” of oil and gas resources in the North Sea. In an amendment to its strategy in February 2021, the OGA did not include tax breaks and other subsidies provided to companies in its definition of “economic recoverability”. The group based the case on this strategy update, arguing that it would encourage additional extraction that would breach binding climate targets.

The High Court rule in January 2022 that the strategy is not illegal. However, the campaigners expressed happiness that the case forced the Government to admit that the sector does receive subsidies. As part of the G7, the UK has publicly pledged to end all “inefficient” fossil fuel subsidies. Paid to Pollute is still considering its next moves and has stated it does not intend to give up.

8) Approval for Drax’s gas-fired power plant

December 2020 saw ClientEarth announcing a High Court Challenge against the UK Government’s decision to approve plans for Europe’s largest gas plant, submitted by Drax.

Drax’s intentions to install four new gas turbines on its land in North Yorkshire, replacing two of its coal-fired units, got the green light from Andrea Leadsom, who was Business and Energy Secretary at the time.

ClientEarth claimed that the Government had not properly considered its carbon budgets and net-zero target when approving the plant. The Court of Appeal sided with Drax and dismissed ClientEarth’s arguments. It argued that the Overarching National Policy Statement for Energy simply said that decision-makers should consider emissions, not use them as a reason to refuse consent.

However, Drax then abandoned the project of its own accord. Instead of leaning into gas, it has opted to expand its investment in biomass, carbon capture and storage (BECCS).

9) Runway and roads expansions

While the announcement of the third runway at Heathrow Airport came before his tenure, Boris Johnson has had plenty of opportunity to u-turn on what green groups have described as a “climate-wrecking” expansion.

At the end of 2020, the Supreme Court decided to allow the Heathrow Airport expansion, despite the fact that the Court of Appeal ruled it unlawful on climate grounds earlier this year.

One of the lawyers fighting against the expansion, Tim Crosland of Plan B Earth actually broke the embargo to reveal that the decision against the runway had been reversed.

Crosland’s statement reiterated the decision made by the Court of Appeal back in February 2020 – that the emissions resulting from flights from the third runway would breach the UK’s Paris Agreement compliance. The Court sided with Heathrow as local authorities and citizens’ groups asked for a block on noise pollution and air pollution grounds, but ultimately decided that the expansion was incompatible with international climate agreements.

The UK Government upheld its promise not to push for the expansion after the Court of Appeal’s decision; the new challenge was pushed forward by the airport’s corporate arm instead.

Similarly, the High Court ruled last year that the Secretary of State for Transport £27.4bn Road Investment Strategy would also be allowed to go ahead.

Transport Action Network issued a challenge on the grounds that RIS2 did no comply with the Paris Agreement, the UK’s net-zero target or the fourth and fifth carbon budgets set under the Climate Change Act 2008.

Did we miss any? Let us know in the comments.