Heathrow Runway banned: ‘making the case’ for climate change litigation

By Emily Passmore

Plans for a third runway at Heathrow have always been controversial. However, last week, they were stopped once and for all by a ruling from the court of appeal. The plans were ruled illegal for not complying with the UK government’s commitment to reach net zero carbon emissions by 2050 (as set out in the Paris Agreement). 

This is the first case to be based around the agreement and has widely been seen as a huge boost to the commitments contained within it. It demonstrates how legal cases not only reinforce the fact climate change is a major issue, but ensure that commitments to tackle it are not merely pledged, but enforced. Whilst the case is overall a positive development, it does highlight some limitations of climate litigation addressed at the end of the article. 

The case is part of a wider growth in climate change litigation. Since 1990, over 1300 legal cases have been brought worldwide concerning climate change, and 57 of these have been in the UK. Often, these have been fought by environmental legal charities; the Heathrow case was fought by Plan B, whilst Client Earth have won three cases protesting government inaction on air pollution. 

Whilst many cases are based on existing legislation, or planned legislation, some attempt to set new precedents instead. In Colombia, the Supreme Court ruled that the Amazon has the same legal rights as a human being so is entitled to protection and conservation. It ordered the government to draw up action plans within four months to uphold this ruling. Furthermore, in the Netherlands, the Supreme Court upheld a decision stating that the government had a constitutional duty to protect its citizens from climate change, and thus must reduce emissions by at least 25% compared to 1990 by the end of 2020. 

The prevalence and success of these cases is a good sign for the climate movement as a whole; they signal an increasingly popular concern to make climate change mitigation a necessity, not a voluntary action. Five judicial reviews of the third Heathrow runway were thrown out in 2018 – success in 2020 suggests a shift in opinion from the courts that bodes well for future cases. This is likely a sign of shifting public opinion as well, as the courts would be unlikely to rule on the issue if they thought nobody cared about it. 

It particularly paves the way for cases based around maintaining the commitments set out in the Paris Agreement. This established a maximum target of 2⁰C warming and required governments to set out plans for how this goal could be achieved. At the upcoming COP26, these plans should be strengthened, thus making the court’s respect for the plans even more important for ensuring they are executed. 

The case may also act as a deterrent to the government, encouraging them to rethink plans that go against the Paris agreement’s commitments. The legal process not only exposes the government to public scrutiny but also drains the government’s time and resources. Even if the government wins a case, environmental charities have tend to bring cases back and thus drag out the process further. Being environmentally responsible at the stage of initial policy planning therefore becomes the new shortcut. 

However, court cases can only act as a deterrent if the decisions they make actually hold. As previously mentioned, Client Earth has won three cases against the government over air pollution – the second and third cases were brought because the ruling from the first was ignored. Although the third case gave the court the power to veto unsatisfactory plans concerning air pollution without the need for a court case, the process has been very long, and is still yet to yield concrete results for reducing air pollution. 

This is even more relevant for cases not based around existing policy or legislation. Creating new environmental rights is brilliant for showing a commitment to fighting climate change, but there is no precedent for how such rights should be established or protected. Thus, it is very easy for the rulings to be watered down and ignored, reduced to a symbolic gesture. 

It is also important to consider the context in which decisions are being made. The third runway at Heathrow has always been a controversial policy and was inconvenient for the government to implement, regardless of its environmental impacts. Thus, there was far less time and effort put into defending the policy than there would be if a popular policy was challenged on environmental grounds. The test of climate change litigation’s effectiveness is if firm government commitments can be challenged and brought down through the courts. We are yet to see a case such as this in the UK. 

This highlights the limitations of climate change litigation as a strategy; it is all still very tentative and unproven. Although the judgments passed so far have been excellent for the climate movement in theory, there are still many issues with implementing them in practice. It seems likely these issues could be resolved, particularly around reinforcing existing legislation; as climate change litigation becomes more common, it will become more costly to ignore judgments, as the risk of being taken back to court will rise. 

However, we don’t have infinite time and resources - we need to fight climate change now. This means using litigation as part of a wider movement of activism, adjusting its use as its strengths and weaknesses become clearer. Pursuing cases such as that of the third runway at Heathrow seems a good way to go about this, as it achieves a definite and overwhelmingly positive policy change that would be incredibly difficult to achieve any other way.