Possible (The 10:10 Foundation), R (on the application of) v Secretary of State for Transport

The preparation of a sectoral decarbonisation strategy by a Secretary of State does not itself discharge, or engage, the statutory duty under section 13 of the Climate Change Act 2008. That duty rests with the Secretary of State responsible for the whole-economy carbon-budget judgment.

A public body consulting on a defined strategy may lawfully exclude an alternative strategy which it has firmly rejected, provided the consultation is fair and enables meaningful responses. The Tameside duty requires reasonable inquiry, not every desirable inquiry. Judicial review does not require quantitative projections for each high-level policy measure where the strategy is an illustrative framework. A decision-maker may reject expert advice and give a policy consideration little or no weight where the decision is rational.

Possible and the Group for Action on Leeds Bradford Airport challenged the Secretary of State for Transport’s 2022 decision to publish the Jet Zero Strategy and Possible separately challenged the 2023 decision to maintain it.

The strategy pursued aviation decarbonisation through technology, fuels, efficiency, carbon pricing and related measures, while excluding direct demand management. The claimants alleged breaches of the Tameside duty, failure to consider obviously material matters, unlawful consultation, irrationality, inadequate reasons, failure to comply with the public sector equality duty and failure to consult on the 2023 Review.

The central issues were whether the statutory climate-change duties applied to the strategy, whether direct demand management and non-CO2 effects had to be addressed, and whether the decision-making and consultation processes were lawful.

1. Disposition. Permission was granted on all grounds, but all claims for judicial review were dismissed.
2. Climate Change Act 2008. Following Global Feedback, the section 13 duty is a whole-economy duty resting with the Secretary of State responsible for carbon budgets. A sectoral strategy prepared by another Secretary of State may assist that duty but does not itself engage sections 13 and 14. The Jet Zero Strategy was therefore not subject to the statutory assessment obligations applicable to the Net Zero Strategy.
3. Inquiry and material considerations. The Tameside duty required reasonable steps to obtain information necessary for the decision. The Secretary of State was entitled to adopt a high-level strategy using an illustrative emissions trajectory and was not legally required to provide quantitative projections for every policy measure or justify each unquantified measure. The evidence showed that delivery risks, technological uncertainty, CCC advice and consultation responses had been considered. The thresholds for intervention were not met.
4. Consultation. There was no statutory or established common-law duty to consult on direct demand management. The consultation concerned a strategy based on preserving the ability to fly without directly constraining demand. Fairness did not require consultation on a different strategy which had been rejected. The consultation responses were nevertheless analysed and conscientiously considered.
5. Other grounds. Non-CO2 effects were uncertain and there was no agreed methodology or established basis for treating direct demand management as the only or most effective mitigation. The exclusion of specific planning decisions on airport expansion was not irrational. The Secretary of State had due regard to equality impacts, despite an error in the consultation summary. No general duty required reasons for an internal preparatory decision. The 2023 Review involved no fundamental policy change, so no duty to re-consult arose, and the Secretary of State reasonably decided that further detailed investigation of direct demand management was unnecessary.