Making things worse

We challenged the Government's failure to adequately consider climate change when agreeing the "largest ever" roads programme on 11 March 2020, its £27bn Road Investment Strategy 2 - RIS2. It wasn't until over a year later on 29-30 June, 2021 that we were able to get to court after much feet-dragging by the Department for Transport. The decision was published on 26 July 2021.

At the same time the Government was approving every new road possible, overriding the recommendations of independent planning inspectors on at least three occasions in the process. Many more road schemes have been stalled as the Government tries to find ways to approve them, even though in doing so it will make tackling climate change even harder. Now it is busy preparing for the next roads strategy, RIS3, likely to be another £30bn roads programme, making a bad situation even worse. We have challenged its priorities during the early stages of its development and produced a briefing about it.

The end of the road, or is it?

The Court of Appeal refused permission for Transport Action Network (TAN) to appeal, after its challenge to the approval in March 2020 of the £27bn second Road Investment Strategy (RIS2) was dismissed in July 2021. Yet this is far from the end of the road for TAN’s challenge to the roads programme.

Chris Todd, Founder of Transport Action Network, said:

“This is not a judgement on the climate impact of the roads programme, nor does it set any precedent for the planning process. It simply shows that at a time when courts across the world are finding against polluters, our English legal system is failing the public good, placing deference over decarbonisation.

“Respected bodies such as the Climate Change Committee and Institute for Government have called for all major decisions to be subject to a net zero test. This decision shows that a climate test, unless carefully worded and written into statute, would offer no safeguard: English courts will simply shy away from providing the scrutiny needed.”

Rebecca Lush, Campaigner at Transport Action Network, said:

“Through bringing this case we have shone a bright light into the murky depths of the Department for Transport. The case highlighted how England’s Strategic Road Network is responsible for a tenth of the UK’s carbon emissions and revealed that officials only assessed the climate impacts of just 90 miles of the 4000 miles of road planned.

“We may have lost this battle but with over a dozen flagship road schemes delayed, it’s clear the wheels are falling off the RIS2 roads programme. As public concerns, whether about climate change, road safety or levelling up mount, the “largest ever” roads programme is sinking.”

What the decision means

None of the legal decisions mean that the roads programme’s climate impact has been approved nor that National Highways’ approach in planning procedures is valid. The Court of Appeal simply considered whether there was a legal error in the High Court’s decision last July to dismiss TAN’s claim. Our lawyers had set out four grounds of appeal, two of which have practical rather than simply legal implications.

The first issue was whether ministers failed to consider “the effect…on the environment” of RIS, as required by the Infrastructure Act 2015. Rejecting this, the Court of Appeal held the degree to which climate change is looked at is “quintessentially a matter for the decision-maker …absent bad faith or manifest absurdity”. In this instance it was enough that ministers had been shown a “laconic” briefing that simply said RIS2 was “consistent” with net zero. In other words, so long as it was arguable the climate impact of RIS2 could be offset by 2050, there was no case to answer.

The second was whether DfT’s analysis behind this assertion was sound. TAN argued not, as only emissions from 90 of 4,000 miles in RIS2 were analysed, wider carbon impacts were ignored and there was no consideration of the effect of those extra emissions on carbon budgets the UK was already set to miss. The Court of Appeal disagreed, saying there was no basis upon which that analysis could or should be rejected. It confirmed the other judge’s ruling that the analysis was not irrational, rather it was “simply another difference of opinion between experts which, in proceedings for judicial review, the court is not in a position to resolve”.

The judges decided that high level (“macropolitical”) documents like the RIS, especially those that do not set out specific spatial planning or environmental controls, should not be scrutinised closely. This was all the more the case for ‘decisions involving or based upon "scientific, technical and predictive assessments"’. This is concerning as it pretty much covers anything to do with climate change.

Why TAN was right to bring this challenge

Even with the benefit of hindsight, the three reasons TAN brought this challenge are still standing.

This case was the first time the roads provisions of the Infrastructure Act 2015 were subject to judicial scrutiny. It was very timely to find out whether putting net zero into law would make a difference to decision making. Finally, it helped put the roads programme back on the agenda of bodies like the Climate Change Committee and Institute for Government. With the strategic road network alone responsible for 10% of UK CO2 emissions, this case has brought those emissions into the light.

Indeed with the Climate Change Committee arguing for a net zero trajectory test for all major policy decisions, the judgement is a reminder that, unless the test is drafted carefully and given statutory underpinning, English courts will not scrutinise how it is applied.

Why this is not the end of the road

RIS2 was approved in March 2020, months after the net zero by 2050 target was set. Since then, however, the Government has adopted far more challenging interim targets of a 68% cut by 2030 and a 78% cut by 2035. With transport the biggest contributor to emissions, the case for a turnaround has been turned up a notch. Experts agree that even a faster switch to electric vehicles will not be enough - even then they fail to tackle non-tailpipe emissions.

Essentially the courts ruled that it was not irrational to say RIS2 could be incompatible with net zero by 2050 or the previous lower target for 57% by 2030. In particular, the judge suggested that “emissions in one sector, or in part of one sector, may be balanced against better performance in others”. With a lack of action in most other sectors like agriculture, home heating and aviation, it should be obvious that surface transport cannot be cut any more slack.

So TAN is asking ministers to “reopen” RIS2 so that it can be reconsidered, in recognition that circumstances have radically changed. In the 2021 Spending Review, the budget for capital enhancements (road schemes) was cut by nearly a quarter, a proportion that has now grown further. We are also pressing that the same mistakes on climate change are not repeated in RIS3 (2025-2030). Meanwhile the number of local groups opposing schemes keeps on growing. Watch this space!