Last week, in a landmark British legal case brought by environmental charities, Friends of the Earth and Plan B Earth, a judge ruled that the planned expansion of Heathrow Airport is unlawful as it fails to consider provisions of international agreements to tackle climate change. The UN’s Paris Agreement, which came into force in November 2016, commits signatories to tackling climate change by taking measures to limit global warming, and the plaintiffs argued that the government failed to take account of these and other commitments when setting out support for the airport expansion.
Of course, business groups are concerned that this means London, already hopelessly short on airport capacity, will fall further behind European rivals as demand for more air traffic increases, especially from the developing world. And while we are certainly sympathetic to these concerns and have little time for the climate hysteria, there is a silver lining to the court’s decision: they have struck down a law because it doesn’t correspond to other commitments made by the government. It is, in effect, a legal ruling that says the government can’t have its cake and eat it too: they can’t just virtue signal with lofty commitments to climate change and pass laws that contradict those commitments.
Now, the courts can’t ensure that politicians are held accountable for unrealistic promises made to the electorate, you need specific acts of parliament or other official commitments: the Heathrow ruling was based on the conflict between support for the airport expansion in its National Policy Statement and pledges made in the Paris agreement, which has been ratified by Parliament. But wouldn’t it be interesting if the courts could strike down other seemingly contradictory laws? For example, if we get a budget (due on the 11th of March) which is high on infrastructure spending and other goodies intended to persuade Northern voters that the Conservatives are really a left-wing party and therefore deserving of their vote, what if the courts ruled it unlawful on the basis of being in violation of the Charter for Budget Responsibility, where the Government’s set out an objective for fiscal policy which is to return the public finances to balance by the middle of the 2020ies?
Of course, that won’t happen. While the government has already indicated that this may be the end of the road for plans to build a third runway at Heathrow, no government will ever allow the courts to adopt a broader role of blue stamping policy. Politicians see themselves as above the law, which, of course, they have the power to change anyway: Boris Johnson is free to abandon the UK’s Paris commitments and forge ahead with airport expansion, but he won’t (he’s personally against the expansion of Heathrow anyway, so he’s not crying over this). They will let this one go, because it’s not a hill the new woke Conservatives are willing to die on. But environmentalists are emboldened. They have already promised to tackle dozens of other airport, road and power station schemes through the courts, and Boris Johnson’s government is not short on absurd pledges when it comes to the environment, having recently passed a 100% undeliverable commitment to bring all greenhouse gas emissions to net zero by 2050. Now that there is precedent, no-one should bet against the environmentalist lobby using the courts to assume a new powerful role in how the UK’s transport and energy infrastructure is developed.