Administrative Law and Climate Change

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    Executive summary

    The primary functions of administrative law are to (i) create and empower public institutions to tackle social, economic, or environmental problems; and (ii) establish the main ways those institutions can be held to account for the performance of their legal obligations, for example empowering the courts to assess the lawfulness of government action.  This overview will explain how climate change has affected the development of administrative law in both areas.

    Holding governments to account on their climate commitments is vital to achieving the net zero transition. Administrative law therefore has an important role to play as the primary mechanism through which courts ensure that public bodies are acting properly. Some pieces of legislation enable this action by imposing a legal duty on the government to address climate change. Most notably, the Climate Change Act 2008 sets out legal obligations which require, inter alia, that the government sets a net zero target and interim carbon budgets, also binding the government to various procedural requirements. Increasingly, climate change is being integrated into other statutes as an issue which various public bodies must consider and address.

    Judicial review is an important instrument for enforcing the statutory requirements mentioned above and has seen some application in the context of climate change. Cases have generally struggled to find success for multiple reasons, but in some instances claimants have won climate-related cases against public decisionmakers. In this field, all traditional grounds of review are in principle available – illegality, irrationality and procedural fairness – as well as a review based on human rights. This overview first examines the duties and obligations that UK legislation imposes on the government in relation to climate change, and then evaluates how administrative law might drive the net zero transition through judicial review.

    • The Climate Change Act 2008 mandates that the UK government sets emissions reduction targets and imposes many procedural obligations and accountability mechanisms to ensure that the government meets these targets.
    • General environmental legislation such as the Environment Act 2021 imposes further public duties that are relevant to climate change, and climate-related obligations are increasingly included in legislation primarily focussed on other issues.
    • Judicial reviews of public decisions relating to climate change have relied on both the Climate Change Act and other pieces of legislation. As the number of climate-related provisions in legislation grows, these claims are likely to become more prevalent.
    • Most cases have tested the legality of government decisions, but courts have also considered climate change decisions in the light of rules relating to irrationality, procedural unfairness and human rights.  
    • Courts’ willingness to defer to the government on substantive climate issues has been a barrier to many claims, though cases based on procedural elements of legislation have been more successful.
    Key legislationKey cases
    Climate Change Act 2008

    Environment Act 2021

    Petroleum Act 1998
    Friends of the Earth v UK Export Finance

    Friends of the Earth and others v Secretary of State for Transport

    Friends of the Earth and others v Department of Business, Industry, and Industrial Strategy

    Cox and Others v The Oil and Gas AuthorityPlan B Earth v Prime Minister

    How climate change has impacted administrative law

    Climate change’s primary impact on administrative law in the UK has been through the creation of provisions designed to hold the government to account on its climate commitments, both by creating new and amending existing legislation. While the fundamental pillars of administrative law are unlikely to change, public law principles and mechanisms dictate how these new laws take effect. As discussed below, there are three ways climate change has triggered the enactment of legislation creating and empowering climate-related institutions: (i) the Climate Change Act 2008 and the creation of new procedures, bodies, and the establishment of duties; (ii) The Environment Act 2021, and the creation of the Office for Environmental Protection (OEP); and (iii) other legislation advancing similar objectives.

    Authors have noted that climate change is legally disruptive, and this disruption has led to new legal regimes with distinct features.[1] One key feature is integration – although the Department for Business, Energy & Industrial Strategy (BEIS) takes primary responsibility, climate change must now be considered and addressed by a wide range of public bodies and decisionmakers. Another aspect is the need to act in the face of significant uncertainty – both in the physical impacts of climate change and broader political, economic and social outcomes of the net zero transition.[2] Perhaps the greatest impact of climate change on administrative law has been the introduction of the Climate Change Act 2008.

    The Climate Change Act 2008

    The Climate Change Act cements in law the UK government’s commitment to reach net zero by 2050.[3] It is the key mechanism for ensuring that the UK meets its obligations under the Paris Agreement, and sets the framework through which the country implements policies and takes actions that reduce emissions. As the Act imposes obligations on the government, it is central to the relationship between administrative law and climate change. Indeed, given its breadth and the importance of the issue that it aims to solve, many have considered what place the Climate Change Act occupies in the UK’s constitutional and administrative arrangements. Some authors have suggested that the Act is a piece of constitutional legislation, as it serves the long-term public interest by constraining short-term actions and imperatives.[4] Being deemed a constitutional statute would mean that the Climate Change Act could not be implicitly repealed or amended.[5]

    The Act has many different provisions aimed at helping to achieve its central goal of reaching net zero. While some features of the Act, such as the establishment of an independent advisory body, were not entirely new concepts, novel features such as specific target-setting requirements may inform the creation of duties and obligations in other pieces of legislation. This is already evident in The Environment Act 2021, which is explored below.

    The core duties in the Act are imposed on the Secretary of State for Business, Energy and Industrial Strategy. One of the most important obligations that the Climate Change Act imposes on the government is the duty to create ‘carbon budgets’ which dictate the volume of greenhouse gas emissions that the country can emit over five-year periods.[6] The Act includes a range of provisions specifying how the government should set carbon budgets and measure the country’s progress against them.[7]

    Part Two of the Act established the Committee on Climate Change (CCC), an independent advisory body which reports on the UK’s progress towards meeting its overarching net zero target and the carbon budgets set by the Secretary of State. The CCC has a legal duty to advise the government on its net zero target, carbon budgets, and other aspects of climate policy. It must also publish its own reports on the UK’s progress towards net zero to supplement those published by the government and support UK policy makers. Other provisions in the Act relate to issues such as emissions trading[8] and waste management.[9]

    While some aspects of the Act have been criticised, it is generally considered to have been effective in reducing greenhouse gas emissions in the UK.[10] The Act represented the first binding commitment to emissions reductions by a major economy, and experiences with the UK’s Climate Change Act have helped inform legislative efforts abroad.[11]

    Broader environmental law

    The environmental law section of this resource explores how broader environmental law is relevant to climate change. Issues such as air pollution and biodiversity loss are distinct environmental problems, but addressing each one can also benefit climate action. There are also sometimes trade-offs between reducing emissions and protecting natural areas. The Environment Act 2021 set a new framework for addressing environmental issues in the UK post-Brexit, and it imposes numerous obligations that are relevant to the net zero transition. Many of these duties are administered by the Department for Environment, Food and Rural Affairs (DEFRA) rather than by BEIS.

    Like the Climate Change Act, the Environment Act requires that the government sets targets for multiple important environmental metrics – most directly linked to climate change are targets for air quality[12] and biodiversity.[13] It also established the OEP,[14] a watchdog that is somewhat analogous to the CCC, but some critics have argued that the OEP is not sufficiently independent. Additionally, it sets out environmental principles previously listed in the EU treaties, on which the Secretary of State for DEFRA must release a policy statement.[15] These principles apply to policymaking in all governmental bodies, so they have a broad impact on administrative duties. As climate change may be relevant to all the principles, they may be a tool for ensuring effective climate action across the whole government.

    Other legislation

    Further demonstrating the integration of climate policy in all aspects of government, various other pieces of legislation have imposed obligations on public bodies to consider or act on climate change. Planning policy is highly interlinked with climate change as it can enable, block, or delay developments that are crucial to reducing emissions or adapting to climate impacts. The planning law section of this resource will explore these links in more detail. In 2022, the Health and Care Act made addressing climate change a duty of the NHS, with specific reference to the Climate Change Act and the Environment Act.[16] Bodies with direct relevance to climate change such as the North Sea Transition Authority and Ofgem have communicated their obligations and ambitions to net zero. Climate change may be integrated into other public bodies’ functions in the future – the Treasury has proposed that mitigation of climate change be explicitly mentioned in financial regulators’ principles. Legislation in Scotland has imposed broad obligations on public bodies to report on their emissions, which mirrors similar UK-wide obligations imposed on certain private organisations.[17] While the Climate Change Act remains the most important mechanism for holding government to account on climate-related issues, climate considerations are now embedded in many other pieces of legislation, and may continue to spread across different parts of the government.

    How administrative law can help drive the net zero transition

    The previous section outlined key legislation that has created new public duties and obligations related to climate change. This section will evaluate the extent to which administrative law might help drive climate action in the UK through its establishment of accountability mechanisms, especially legal accountability through the courts. In particular, this section will address how the different grounds of judicial review may help the UK achieve net zero.

    The courts will be vital to understanding the specific obligations imposed on decisionmakers in this context, and may develop their own doctrine for adjudicating on these issues.[18] To properly rule on these issues, courts and public lawyers will need not only a clear understanding of how climate fits into the UK’s legislative landscape, but enough knowledge of climate change itself to see how and why this problem is so disruptive. 

    Other administrative law concepts such as administrative torts and ombudsmen may also be relevant to the net zero transition but are not evaluated in this section. As mentioned above, planning law is a significant source of public law claims – while this section touches on some of those claims.

    Illegality

    The illegality ground of review provides recourse for situations where public bodies act beyond their prescribed powers, i.e. ultra vires.  Illegality also extends to instances where a body makes decisions for improper purposes, or where it impermissibly abdicates or delegates responsibility, or fetters its discretion. Similarly, where a decisionmaker misdirects itself in law, their decision may be challenged on grounds of illegality.

    Given the range of climate-related obligations which now constrain public decisionmakers, many decisions related to climate change may be judicially reviewed on the basis that the government has not acted in accordance with relevant statutory provisions. Claimants have already brought cases to UK courts on these grounds,[19] and while the subject matter and issues in each claim are distinct, common threads run through many cases relevant to climate change. All levels of government may be implicated in these cases – local authorities have dealt with various challenges to planning permission related to climate change,[20] whereas more systemic challenges can be brought against central ministries and departments.

    Climate litigants may seek to argue that the government has acted inconsistently with the Paris Agreement itself. This was at issue in Friends of the Earth v UK Export Finance[21] in which claimants argued that the UK government financing a natural gas project in Mozambique was contrary to obligations under the Paris Agreement to ensure climate-resilient development[22] and to support developing countries with their climate targets.[23] In the first instance, the High Court held that UK Export Finance acted lawfully in a decision that split the two judges. While one judge opined that the government could not reasonably consider its action compliant with the Paris Agreement, the other judge suggested that the courts should give the government significant deference – a common theme across many climate-related cases. The Paris Agreement was also relevant in Friends of the Earth and others v Secretary of State for Transport (the ‘Heathrow’ case),[24] a planning law case in which the claimants argued that the government should have considered the Paris Agreement before approving an airport expansion. While the Court of Appeals agreed with the claimants, the Supreme Court held that, in that case, the Paris Agreement did not constitute government policy under the Planning Act.

    Claims may also be based on the Climate Change Act. As most duties are imposed on the Secretary of State for BEIS, multiple claims have been brought against that department (and its predecessors). One example is Friend of the Earth v BEIS,[25] which challenged the UK’s Net Zero strategy. Rather than focusing on the policies outlined in the Strategy themselves, the claimants argued that the Secretary of State needed to show more detailed calculations on how BEIS assumed each individual policy would contribute to emissions reductions. The court held in favour of the claimants, and the government subsequently revised its net zero strategy, demonstrating the ability of judicial review to ensure that the government acts in accordance with its legal and policy obligations with regards to climate change. Claims based on the actual substance of the targets set under the Climate Change Act, and the policies implemented to achieve them, have been less successful. As mentioned, courts have expressed a willingness to defer to the government on climate issues in multiple cases.[26] This is not necessarily unexpected given that climate change is a technical issue on which the government should have expertise, but does limit the impact of judicial review.

    Alternatively, like in the Heathrow Case, there may be separate statutory obligations that require consideration of targets and budgets in the Climate Change Act. Other claims may rely on separate legislation, such as Cox and other v Oil and Gas Authority,[27] which challenged the Authority’s interpretation of a provision in the Petroleum Act 1998. Applications of judicial review against a wide range of decisionmakers may increase in number as climate change is further integrated across the entire government.

    Irrationality

    The irrationality ground enables judicial review of decisions on the basis that a decision is irrational or unreasonable. Courts must meet a high threshold to strike down a decision based on irrationality or unreasonableness and it is therefore difficult to bring a successful judicial review on the basis of this ground. Even where there is significant scepticism about whether a decision will contribute to a stated climate policy goal, for example to reduce emissions by a certain amount, this may not be enough to meet the traditional Wednesbury[28] definition of unreasonableness. Irrationality was one of the grounds of review considered in Cox & Others v The Oil and Gas Authority. In that case, the claimants asserted that the Oil & Gas Authority’s (OGA’s) definition of the ‘economic recovery of petroleum’, which the Authority must maximise in accordance with its statutory duty, was irrational in light of the UK’s climate commitments. In the Court’s view, this did not meet the threshold for irrationality. Like when reviewing the legality of the decision, the Court offered significant deference to the OGA when determining whether its decision was rational. Dicta from the Court suggested that a decision may be irrational for climate-related reasons where a decision clearly increases emissions, but the scope for this remains narrow. However, in areas where the impact of substantive decisions on emissions is not relevant to illegality review, rationality review may be the best tool available.[29]

    Procedural fairness

    A public body’s decision may be challenged because it failed to adhere to procedures prescribed by statute, or where there was unfairness in the decision making process.  Although review brought on grounds of procedural fairness would not directly challenge the climate impacts of government decisions, nevertheless this may be another useful tool in addressing climate change. The Climate Change Act sets out many different procedural requirements. Under the Act, the government must consult on changes to the Act’s core target and to carbon budgets.[30] These requirements help ensure that government policy is aligned with the best thinking on climate change, and that the public has a chance to engage on these issues. While the government has not deviated from them yet, judicial review on procedural grounds could help uphold these requirements. The Act includes many other procedural requirements, for example related to the preparation of government and CCC reports. Requirements derived from the duty to act fairly may also assist the UK in tackling climate change. For example, non-statutory procedural rules against bias, the right to be heard, the duty of inquiry, and the duty to give reasons may apply in limited circumstances.

    Human rights

    Despite not being a traditional ground of judicial review, section 6(1) of the Human Rights Act 1998 may provide an independent ground of judicial review where a public authority acts “in a way which is incompatible with a Convention right”. This is because under the Human Rights Act, public bodies are legally obliged to respect, protect and fulfil human rights when making decisions. The link between climate change and human rights is gaining attention at a national, regional and international level, and is evaluated in the human rights law section of this resource. While claimants have acknowledged this link in judicial reviews against government decision makers, these have not been successful. One example of this was in Friends of the Earth v BEIS which, in addition to the successful arguments outlined above, saw the claimants argue that the Secretary of State should set more stringent carbon budgets to meet its human rights commitments. Relevant European Convention on Human Rights (ECHR) rights were Articles 2 (right to life), 8 (respect for private and family life), and A1P1 (protection of property). As these rights may be frustrated by climate impacts, the claimants asserted that the relevant provisions of the Climate Change Act should be read to include more stringent requirements to be compatible with human rights in accordance with Section 3(1) of the Human Rights Act. The court rejected this application of s3(1), and was not convinced that the relevant rights were easily applicable to climate change. A similar case, Plan B Earth v Prime Minister, argued that the government had breached human rights (Articles 2, 8 and 14 of the ECHR) by failing to effectively implement the Paris Agreement. This case was not given permission to proceed.


    [1] Elizabeth Fisher, Eloise Scotford and Emily Barritt. ‘The Legally Disruptive Nature of Climate Change’ [2017] Mod Law Rev 80.

    [2] Ibid.

    [3] Climate Change Act 2008 s 1. Note that this target was initially less ambitious, being to reduce greenhouse gas emissions by 80% compared to 1990 levels.

    [4] Aileen McHarg, ‘Climate change constitutionalism? Lessons from the United Kingdom’ [2011] Climate Law.

    [5] BH (AP) (Appellant) and another v The Lord Advocate and another (Respondents) (Scotland) [2012] UKSC 24.

    [6] Climate Change Act 2008 s 4.

    [7] Ibid. Sections 5-10.

    [8] Ibid. Part 3.

    [9] Ibid. Sections 71-75.

    [10] Sam Fankhauser, Alina Averchenkova and Jared Finnegan, 10 Years of the UK Climate Change Act (Grantham Research Institute, 2018). <https://www.lse.ac.uk/granthaminstitute/publication/10-years-climate-change-act/>.

    [11] See for example Nigeria’s Climate Change Act 2021.

    [12] Environment Act 2021 s 2.

    [13] Ibid. s 3.

    [14] Ibid. Chapter 2.

    [15] Environment Act 2021. s 17.

    [16] Health and Care Act 2022. s 9.

    [17] Climate Change (Duties of Public Bodies: Reporting Requirements) (Scotland) Order 2015.

    [18] Joanna Bell and Elizabeth Fisher. ‘The Heathrow Case in the Supreme Court: Climate Change Legislation and Administrative Adjudication’ [2022] Mod Law Rev.

    [19] See for example, Friends of the Earth v BEIS [2022] EWHC 1841 (Admin).

    [20] See for example, R(Finch) v Surrey County Council [2020] EWHC 3566 (Admin).

    [21] [2022] EWHC 568 (Admin).

    [22] Conference of the Parties, Adoption of the Paris Agreement [2015] Article 2(c).  

    [23] Ibid. Article 3.

    [24] [2020] EWCA Civ 214.

    [25] [2022] EWHC 1841 (Admin).

    [26] R (Richards) v Environment Agency [2022] EWCA Civ 26; R(Finch) v Surrey County Council [2020] EWHC 3566 (Admin); R (on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWCA Civ 43, [2021] PTSR 1400.

    [27] [2022] EWHC 75 (Admin).

    [28] Associated Provincial Picture Houses Ltd. V Wednesbury Corporation [1948] 1 KB 223.

    [29] William Upton KC and Noemi Byrd, Climate Litigation and the Rationality Quagmire (Six Pump Court, 10 October 2022).

    [30] Climate Change Act 2008, Sections 3, 7 and 9.