Mon, 17 Apr 2023
Environment analysis: Odette Chalaby of No5 Barristers' Chambers, considers why the revision of the original October 2021 Net Zero Strategy was needed, the key elements of the revised and rebranded ‘Powering Up Britain: Net Zero Growth Plan’, if the revised strategy and the carbon budget delivery plan issued alongside the Net Zero Growth Plan met the concerns raised by the court in relation to the original strategy, if the government incorporated the findings from the independent review of net zero, and if the government’s response to the review, issued alongside the revised strategy, is significant. Chalaby also considers if there will be any further challenge to the strategy and how the revised strategy will interact with other policies and initiatives, such as the revised Green Finance Strategy, the Environmental Improvement Plan 2023 and the creation of the UK Infrastructure Bank.
Why was revision of the original October 2021 Net Zero Strategy needed?
In October 2021, the government published its ‘Net Zero Strategy: Build Back Greener (the NZS)’, which described proposals that it was said would enable the UK to meet its sixth carbon budget and net zero by 2050.
However, in R (Friends of the Earth Ltd, ClientEarth, Good Law Project and Joanna Wheatley) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin), Mr Justice Holgate held that the NZS did not comply with the government’s duty under section 14 of the Climate Change Act 2008 (CCA 2008) to lay a report before the UK parliament setting out proposals and policies for meeting current and future carbon budgetary periods.
The NZS was held to be unlawful in several respects, including by failing to provide quantitative explanations of specific proposals and failing to explain that only 95% of the sixth carbon budget would be met by quantified proposals (or how the remaining 5% would be made up).
What are the key elements of the revised and rebranded ‘Powering Up Britain: Net Zero Growth Plan’?
The ‘Powering Up Britain: Net Zero Growth Plan (the NZ Growth Plan)’ was published on 30 March 2023. It sets out a package of proposals that the Department for Energy Security and Net Zero (DESNZ) says will help meet the carbon budgets up to 2037.
The NZ Growth Plan outlines progress over the past year and summarises next steps. It is divided into two parts. The first, ‘Reducing Emissions Across the Economy’, goes through the indicative emissions pathway to 2037, progress and delivery, and upcoming milestones in relation to each ‘sector’ (eg power, industry) responsible for delivering carbon savings. The second part, ‘Supporting the Transition across the Economy’ analyses similar considerations in relation to identified ‘enablers’, such as innovation and net zero workforce or skills.
The NZ Growth Plan is only one of a multitude of policy documents, consultations, and strategies that the government published on 30 March 2023. It must be understood alongside not only the associated Carbon Budget Delivery Plan and Powering Up Britain Technical Annex, but also together with documents such as the revised Draft National Policy Statements, the revised Green Finance Strategy, and a series of consultation responses. In total, almost 3,000 pages of material have been published.
Do the revised strategy and the carbon budget delivery plan issued alongside it meet the concerns raised by the Court in relation to the original strategy?
In and of itself, the NZ Growth Plan does not contain the answers to the questions put by the court. However, the NZ Growth Plan was published alongside two documents that do purport to fulfil CCA 2008, s 14—the Carbon Budget Delivery Plan and the Technical Annex, which together set out some technical detail behind the policies and proposals in the NZ Growth Plan.
The Carbon Budget Delivery Plan responds to Holgate J by quantifying predicted emissions reductions of individual policies and proposals with timescales and by stating that quantified proposals will only achieve 97% of the sixth carbon budget, with an explanation of how the Government considers the remaining 3% will be achieved.
On the surface, this appears to fulfil some overarching requirements of the High Court ruling, but the claimants are still considering whether they are satisfied with the detail.
Has the government incorporated the findings from the independent review of net zero and does the government’s response to the review, issued alongside the revised strategy, add anything significant?
In autumn 2022, the government commissioned a report, led by Rt Hon Chris Skidmore MP, to assess its approach to net zero and to ensure it is pursuing the most economically efficient path. ‘Mission Zero: Independent Review of Net Zero (the Independent Review)’ was published in January 2023.
One of the documents published together with the NZ Growth Plan is DESNZ’s response to some 129 recommendations set out within the Independent Review. A significant number of recommendations have been taken up in some form. However, some recommendations have been rejected, such as the suggestion to update Ofgem’s remit to incorporate a net zero target, and the suggestion to accelerate the end to routine flaring from 2030 to 2025.
Do you anticipate any further challenge to the strategy? Does it gofar enough in the challenge of meeting net zero?
The claimants in the High Court case are still reviewing the large suite of documents published by the government, and it is too soon to say if there will be further challenge. The Climate Change Committee will publish a detailed analysis of the strategy in the coming months.
Many commentators critique aspects of the strategy’s substance. Government support for oil and gas projects will continue. Significant emphasis is placed on new technology such as carbon capture and storage. The effective moratorium on onshore wind has not been ended. In many areas, the NZ Growth Plan simply restates previous policy announcements. However, such substantive critiques must be distinguished from Holgate J’s specific concerns in relation to CCA 2008, s 14.
How does the revised strategy interact with other policies and initiatives, such as the revised Green Finance Strategy, the Environmental Improvement Plan 2023 and the creation of the UK Infrastructure Bank?
As set out above, the NZ Growth Plan must be read alongside the myriad of other policies and initiatives referenced within it, including the Green Finance Strategy and the Environmental Improvement Plan 2023. One chapter identified in the NZ Growth Plan is ‘nature’, which states that restoring nature goes hand in hand with achieving net zero. The NZ Growth Plan also has a section addressing green finance, which explains that the UK Infrastructure Bank, which apparently has £22bn financial capacity and a mission to tackle climate change, is now operational having announced 12 deals as of 27 March 2023 (for example, supporting introduction of green buses in Birmingham).
Odette Chalaby is a barrister at No5 Barristers’ Chambers. If you have any questions about membership of our Case Analysis Expert Panels, please contact caseanalysiscommissioning@lexisnexis.co.uk.
