Heathrow third runway plans ruled illegal on climate grounds by court of appeal

Plans to build a third runway at Heathrow have been ruled illegal by the court of appeal, which judged that ministers failed to take into account the government's climate change commitments under the Paris Agreement when approving the project.

Former Transport Secretary Chris Grayling had given the go-ahead to the project in 2018, triggering a series of legal challenges by local residents, councils, the Mayor of London, and environmental groups including Friends of the Earth and Greenpeace.

The challenges were dismissed in the High Court in May 2019, but the claimants brought their case to the Court of Appeal which delivered its verdict this morning, ruling that the government should have considered the UK's climate obligations as part of its National Policy Statement and as such the current planning approval was illegal.

Campaigners immediately hailed the decision as a major victory that should set a precedent for other high carbon infrastructure projects. "The court ruling is bad news for all businesses and investors in the carbon economy, who will have to factor in the increasing risks of legal challenges," said Tim Crosland from legal charity Plan B, which brought the challenge. "But really it is good news for everyone, since all of us - including businesses and investors - depend on maintaining the conditions which keep the planet habitable."

The decision throws Heathrow's expansion plans into doubt, given Prime Minister Boris Johnson - who was a vocal critic of the project before taking office - is thought to be unlikely to pursue appeal against the ruling. Justice Lindblom today said the government had not sought permission to appeal. Johnson had said in 2015 that he would "lie down in front of those bulldozers and stop the construction".

Writing on Twitter, Transport Secretary Grant Shapps confirmed the government would not appeal, arguing it was for Heathrow to pursue any further legal action. "Airport expansion is core to boosting global connectivity," he wrote. "We also take seriously our commitment to the environment. This Govt won't appeal today's judgement given our manifesto makes clear any Heathrow expansion will be industry led."

The ruling does leave the door open for the long running saga over Heathrow's expansion plans to continue. The court made clear it was not ruling on the legality of the expansion plans themselves, rather the government's failure to adequately considering the Paris Agreement and related climate obligations in its National Policy Statement. "We have not decided and could not decide, that there will be no 3rd runway at Heathrow," the ruling stated. "We have not found that a National Policy Statement supporting this project is necessarily incompatible with the UK's commitment… mitigating climate change under the Paris Agreement."

As such, it remains possible that an updated National Policy Statement could attempt to more clearly spell out how Heathrow expansion could be deemed compatible with the UK's emissions goals and Paris Agreement obligations.

COnsequently, Heathrow today insisted its expansion plans could yet move forward. "The Court of Appeal dismissed all appeals against the government - including on "noise" and "air quality" - apart from one which is eminently fixable," a spokesman for the company said. "We will appeal to the Supreme Court on this one issue and are confident that we will be successful.

"In the meantime, we are ready to work with the government to fix the issue that the court has raised.  Heathrow has taken a lead in getting the UK aviation sector to commit to a plan to get to Net Zero emissions by 2050, in line with the Paris Accord. Expanding Heathrow, Britain's biggest port and only hub, is essential to achieving the Prime Minister's vision of Global Britain. We will get it done the right way, without jeopardising the planet's future. Let's get Heathrow done."

Plan B had argued the Paris agreement had been ratified by the government and so constituted an essential part of its climate policy, but ministers had failed to assess how a third runway could be consistent with the accord's climate goals, which include pledges to keep temperature increased 'well below 2C' and build a global net zero emission economy this century.

Grayling submitted a witness statement arguing the Paris Agreement was "not relevant" to climate policy and that the looser Climate Change Act of 2008 was sufficient.

But the Court of Appeal disagreed, delivering a unanimous ruling that stated: "the Paris Agreement ought to have been taken into account by the Secretary of State in the preparation of the [Heathrow Policy], but was not… What this means, in effect, is that the Government when it published the [Policy] had not taken into account its own firm policy commitments on climate change under the Paris Agreement.  That, in our view, is legally fatal to the [Policy] in its present form. As we have explained, the normal result in a successful claim for judicial review must follow, which is that the court will not permit unlawful action by a public body to stand."

The Court of Appeal did not overturn the High Court's dismissal of the other challenges on Thursday, relating to air and noise pollution, traffic, and the multibillion pound cost of the runway. But its landmark ruling is thought to be the first in the world to be based on the Paris Agreement and is likely to galvanise further challenges against high carbon projects, both in the UK and around the world.

The ruling was boradly welcomed by green groups, with Aviation Environment Federation deputy director Cait Hewitt calling it "a huge win for the climate" that "leaves Heathrow's third runway plans in tatters".

"The project would increase emissions at the UK's biggest airport, and the UK has since legislated to achieve net zero emissions by 2050, so it's very hard to see how the Government could now ever demonstrate that a third runway could be reconciled with the necessary scale of climate action," Hewitt added. "This ruling should mark the end of plans for any new runways in the UK. The government should stand up to the airports lobby, drop its support for airport expansion, and invest instead in low carbon transport and supporting British tourism." 

Heathrow and proponents of the third runway have argued it is necessary for boosting jobs and growth, and that advances in aviation technology would enable the additional runway to operate within long-term carbon emissions and air quality goals. Tim Alderslade, chief executive of Airlines UK, the industry body representing UK-registered airlines, called the decision "extremely disappointing." "The economic prize is enormous if expansion is done right, with airlines ready to respond to the unlocking of new capacity by creating new routes and helping to connect the UK to new markets and destinations, and Heathrow to regions across the country," Aldersdale said. "UK aviation has committed to net zero carbon by 2050 and this factors in the emissions created by Heathrow expansion. It is not a question of being pro-aviation or pro-environment."

But green groups remain unconvinced that the industry can be confident it can deliver on its long term emissions goals given the embryonic nature of green aviation technologies and the controversies that continue to surround industry offset programmes. Green MP Caroline Lucas said the onus was now on the government to halt all airport expansion plans in the UK. "Heathrow's expansion, or any airport expansion, is not compatible with climate science.," she said. "It's not even compatible with the UK's own climate targets. This [ruling] has saved Boris Johnson from the inconvenience of lying down in front of the bulldozers. But it should not have been left to the courts to rule on this. If government commitments on climate are to mean anything, they have to result in the right decisions being made on big infrastructure projects."

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• Topics
• Aviation
• Net Zero Now
• Heathrow
• Chris Grayling
• Paris Agreement
• Climate Change Act
• aviation
• legal action
• third runway
• Plan B