Global Feedback Limited, R (on the application of) v His Majesty's Treasury & Anor

A claim falls within Article 9(3) of the Aarhus Convention where the challenged act or omission contravenes national law having a sufficiently close connection with environmental matters. The relevant law need not be contained in an environmental statute, and the impugned decision need not itself have an environmental purpose. A broad, purposive approach is required, taking account of the nature of the alleged contravention and any environmental obligations governing the decision-maker. At the costs-limit stage, the court need not determine the precise extent of environmental benefits. An arguable risk of environmental harm and a public interest in the environmental issues may suffice.

The claimant sought a costs limit order under CPR 46.24 in judicial review proceedings concerning regulations implementing a free trade agreement with Australia. The challenge alleged that the defendants had failed to comply with obligations under section 28 of the TCTA 2018 and had failed properly to consider environmental obligations under the Paris Agreement and the UNFCCC when making tariff changes.

The defendants argued that the TCTA 2018 regulated customs duty and imports rather than the environment, and that any environmental connection was incidental and remote. The central issue was whether the claim was an Aarhus Convention claim within Article 9(3).

1. Application granted. The claim fell within Article 9(3) of the Aarhus Convention and the costs limits therefore applied.
2. The expression national law relating to the environment requires a broad and purposive construction. It is not confined to provisions expressly described as environmental. The decisive question is whether the provision somehow relates to the environment. Venn v Secretary of State for Communities and Local Government and the Aarhus Implementation Guide supported that approach.
3. A provision may satisfy Article 9(3) even where its immediate subject and purpose are non-environmental. The relevant question includes the nature of the alleged contravention and the legal obligations governing the decision. Although the purpose of the TCTA 2018 was to regulate customs duty and the importation of goods, section 28 arguably required regard to international obligations including the Paris Agreement and the UNFCCC. Those obligations were directly concerned with environmental issues.
4. The connection was sufficiently close. The regulations were said to create a favourable market for Australian imports, while the United Kingdom was committed to minimising climate-change effects. The court was not required at this stage to determine the extent of any environmental benefit. An arguable risk of increased greenhouse-gas emissions and a public interest in the environmental issues were sufficient considerations.
5. The approach differed from the circumstances considered in R (ClientEarth) v The Financial Conduct Authority and Ithaca Energy plc, where the environmental connection was incidental and remote. The present claim was closer in principle to R (Friends of the Earth) Ltd v Secretary of State for International Trade, in which a finance decision concerning an overseas fossil-fuel project was treated as capable of falling within the Convention.

The costs limit application was granted.