On Tuesday 3 December 2024, Transport Action Network (TAN) will be at the High Court seeking permission for a judicial review of the National Networks National Policy Statement (NNNPS), which primarily sets policy for road schemes. This briefing sets out the context for the court hearing, then summarises the key issues in the case. A simple explanation can be found on our crowd funder page: Avoid the road to climate breakdown!

The key legal issues include:

1. Whether ministers could ignore consultation responses that referred to modal shift and demand management, despite modal shift being the Transport Decarbonisation Plan’s (TDP) first strategic priority.
2. Whether in approving the road-building policy ministers could rely on effective delivery of the TDP, “primarily” the Zero Emissions Mandate, despite the High Court ruling the Carbon Budget Delivery Plan unlawful due to its delivery risks, as well as ministers cancelling, cutting back and delaying many other key TDP policies since it was published.
3. Whether ministers were required to reconsult after having made material amendments to the consultation draft, specifically restoring the 2015 test on carbon emissions and removing the references to local and regional carbon budgets, without providing any opportunity for comment.

TAN first wrote to the Secretary of State for Transport (SoSfT) in March 2020 to ask for a review of the 2015 NNNPS in light of net zero being written into law. After over a year of campaigning and two judicial reviews, finally a review of the NNNPS was announced in July 2021, alongside publication of the Transport Decarbonisation Plan (TDP). The review was justified on the basis of stricter climate targets and “most directly the new, more ambitious policies outlined” in the TDP.

Consultation on a new draft NNNPS did not however start until March 2023. That June, the Climate Change Committee’s annual report called for a systematic review of road projects, to ensure they were only “taken forward only if they meaningfully support cost-effective delivery of Net Zero and climate adaptation”. The House of Commons’ Transport Committee held an inquiry, concluding that October that the draft required amendments to bring it in line with net zero.

Yet Conservative ministers rejected recommendations by experts and MPs, deciding to do the opposite by writing back in the previous, pre net zero climate policy into the final NNNPS. This said that carbon impacts of a road scheme should be ignored by decision-makers unless the emissions it causes are so significant that they risk breaching the UK’s entire carbon budget. As this is impossible in practice, it is effectively a fake safeguard. The Conservatives’ climate chicanery continued right to the end: Ministers held a cursory debate minutes before Easter recess, which only 11 MPs were able to attend, before designating the NNNPS on the afternoon when Parliament broke up for the election.

TAN had no choice but to bring a legal challenge within the strict six week time limit, filing a claim on the day of the general election. After that deadline, the NNNPS is unchallengeable in the courts and unquestionable in planning inquiries and examinations. This campaign is not simply about climate policy, however important that is. TAN’s consultation response highlighted how flawed the NNNPS is for a range of issues, from road safety, congestion, air quality, nature recovery, sustainable transport and devolution.

You can read more about the latest challenge here.

You can read more about the history of the previous challenges here.

For more details about the legal arguments, click on the button below: