Friends of the Earth & Ors v Secretary of State for Energy Security and Net Zero

Under sections 13 and 14 of the Climate Change Act 2008, the Secretary of State must personally assess whether policies will enable carbon budgets to be met. Risk to delivery of individual policies is an obviously material consideration. No particular format is required, but the briefing must contain enough information to assess likely under-delivery and possible compensation. A decision based on an unsupported assumption that every policy will deliver in full is irrational. Review of this predictive, whole-economy judgment remains low intensity. Section 13(3) requires a sufficiently certain assessment that the package will contribute to sustainable development; a finding that this is merely likely is insufficient. Section 14 requires an intelligible quantitative explanation of how the package will meet the budgets, but does not require publication of individual policy risk assessments.

Three environmental organisations sought judicial review of the Secretary of State’s March 2023 decision to approve proposals and policies for meeting carbon budgets 4 to 6 and of the Carbon Budget Delivery Plan laid before Parliament. The proceedings followed R (Friends of the Earth Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2023] 1 WLR 225, in which Holgate J found the earlier Net Zero Strategy unlawful under sections 13 and 14 of the Climate Change Act 2008. The rolled-up hearing concerned whether the Secretary of State had sufficient information about delivery risk, whether his full-delivery assumption was rational, whether he applied the correct sustainable-development test, and whether the statutory report contained the required information.

Permission was granted on all grounds. The judicial review succeeded on Grounds 1 to 4 and failed on Ground 5.

1. Section 13(1). Risk to delivery of individual proposals and policies, and to achievement of the carbon budgets and the 2050 target, was an obviously material consideration. No particular presentation, including RAG ratings or cumulative-risk analysis, was mandatory. However, the information had to enable the Secretary of State personally to assess which policies might under-deliver, by how much, and whether other measures could compensate.
2. Irrational assumption. The March submissions reasonably conveyed that each constituent policy would be delivered in full. The Secretary of State therefore acted on a mistaken factual premise which the evidence did not support. Applying the principle in R(Wells) v Parole Board [2019] EWHC 2710 (Admin), this was an unexplained evidential gap. The error could not be cured under section 31(2A) of the Senior Courts Act 1981, because the materials did not permit the necessary counterfactual assessment. Alternatively, if no full-delivery assumption had been made, the decision remained unlawful because the information about individual under-delivery was insufficient. The approaches concerning devolved administrations and the EEP baseline were not irrational.
3. Intensity of review. The section 13(1) decision was a strategic, whole-economy, predictive and evaluative judgment involving complex social, economic, environmental and technological assessments. Ordinary low-intensity judicial review applied. The importance of climate change did not itself require enhanced scrutiny, particularly given Parliament’s and the CCC’s statutory scrutiny roles.
4. Sustainable development. Section 13(3) required an evaluative assessment by the Secretary of State that the package would contribute to sustainable development. The statement that the contribution was likely to be positive did not meet the required degree of certainty.
5. Section 14. The CBDP adequately explained the proposals, their quantified contributions and how the shortfall would be met. Section 14 did not require publication of individual policy risk data, whether in RAG or narrative form, operational mitigation details, or every consideration relevant to the section 13 decision. Sectoral risk summaries were permissible but not mandatory. The terms of the final order were left for submissions.

The judgment records the earlier decision of R (Friends of the Earth Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2023] 1 WLR 225, in which Holgate J upheld a challenge to the Net Zero Strategy and ordered a compliant report under sections 13 and 14 of the Climate Change Act 2008. The present proceedings were a further first-instance judicial review, not an appeal.