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The Road Infrastructure Strategy and climate change

The Government’s £27bn Road Infrastructure Strategy has been found to be lawful. John Litton QC and Andrew Byass analyse the High Court’s ruling.

The Road Investment Strategy 2 (“RIS2”) was made by the Secretary of State for Transport on 11 March 2020. It followed four years of work and analysis by the Department for Transport, and sets out the expenditure priorities for the operation, maintenance, renewal and enhancement of the Strategic Road Network (“SRN”), during the period of 2020 to 2025. In addition to maintaining funding for schemes committed during the first Road Investment Strategy, RIS2 commits to a further five new road schemes which will create or improve about 40 miles of the SRN.

RIS2 was challenged by Transport Network Action Limited (“TAN”) on several grounds, only one of which was granted permission to apply for judicial review, relating to the adequacy of the Secretary of State’s consideration of the effect of RIS2 on the environment and on climate change matters in particular. TAN argued that the Secretary of State was required to, but did not, have regard to the Paris Agreement, the net zero target under the Climate Change Act 2008 (“the CCA”), and the carbon budgets made under the CCA. The Secretary of State resisted the challenge, arguing that these was no obligation on the Secretary of State to consider these matters (since they were not obviously material to the relevant duty under s. 3 of the Infrastructure Act 2015), and alternatively that such regard as was required was given to these matters.

In Transport Action Network Ltd, R (On the Application Of) v Secretary of State for Transport [2021] EWHC 2095 (Admin) the Court (Holgate J) agreed with the Secretary of State and dismissed the Claimant’s challenge in a judgment handed down on 26 July 2021. The Court determined that the Claimant’s arguments in respect of the Paris Agreement could not succeed in light of the Supreme Court’s judgment in R (Friends of the Earth Limited v Secretary of State for Transport [2021] PTSR 203. It was sufficient for the Secretary of State to take account of any obligations under the CCA with the Paris Agreement not being a free-standing consideration that was obviously material to the decision (including because the “urgency” objective in Article 4.1 of the Paris Agreement is not to be treated as obviously material).

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So far as the net zero target and carbon budgets were concerned, the Court was satisfied that the Secretary of State had sufficient regard to these matters, including because the Secretary of State could be taken to be aware of the challenges facing the road transport sector regarding climate change, that there is no sectoral target for transport, or any other sector, and that emissions in one sector, or in part of one sector, may be balanced against better performance in others. As the Court held at [127]: “[a] net increase in emissions from a particular policy or project is managed within the government’s overall strategy for meeting carbon budgets and the net zero target as part of “an economy-wide transition”.”

The Court alternatively concluded that the impact of RIS2 on the net zero target and carbon budgets was de minimis, and for this reason these matters were in any event not obviously material to the Secretary of State’s decision. In 2050, the five new schemes to be funded by RIS2 were assessed to generate approximately 0.075 MtCO2e or about 0.1% of the reduction in carbon emissions between 2020 and 2050. The Court was satisfied that it was rational given the relative impact of the new schemes that the Claimant’s arguments could not in any event succeed.

John Litton QC and Andrew Byass are barristers at Landmark Chambers. They acted for the Secretary of State for Transport.

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