Case Analysis: R (Friends of the Earth) v UKEF  EWHC 568 (Admin)
The Paris Agreement and its legacy (so far)
The long-term goal of the Paris Agreement of 12 December 2015 (the “Paris Agreement”) is to keep the rise in the mean global temperature to below 2°C above pre-industrial levels. In seeking to achieve this, the agreement encourages “the widest possible cooperation by all countries, and their participation in an effective and appropriate international response”.
Despite this goal, the Grantham Research Institute on Climate Change and the Environment has observed that since the Paris Agreement was signed, "there has been a surge in strategic climate change litigation, with litigants continuing to adopt new strategies and legal arguments to compensate for inaction by both governments and companies". One of the "key distinguishing features" of this wave of litigation is the use of human rights and constitutional law arguments, (often referred to as the ‘rights turn’ in climate litigation).
Indeed, in jurisdictions where international agreements are held on par with domestic legislation (so-called 'monist' jurisdictions), the Paris Agreement has been invoked by Claimants with some success before the courts to further its objectives. For instance, a successful challenge was brought against the French Government regarding its failure to meet its climate obligations while the German Federal Constitutional Court ordered amendments to Germany’s Climate Change Act on the grounds that it narrowed the country’s ability to meet its obligations under the Paris Agreement in the future.
Challenges in the UK, a jurisdiction where international agreements must be incorporated into domestic law before they are binding (a ‘dualist’ system), have had less success with the recent case of R (Friends of the Earth) v UKEF calling into question whether the UK Government can be held effectively to its commitments under the Paris Agreement.
What were the issues at play in UKEF and what did the Court of Appeal decide?
Friends of the Earth (“FoE”) applied for judicial review of the UK Government’s decision to approve a $1.15bn export finance facility by UK Export Finance (“UKEF”) to a liquefied natural gas project in Mozambique. FoE alleged that the decision was unlawful and irrational as it failed to consider adequately the UK Government’s obligations under Article 2 of the Paris Agreement and challenged: (i) the decision of UKEF to provide the financing support; (ii) the decision of the Treasury to consent to the support; and (iii) the decision of the UKEF CEO to issue clearance for the project.
Following a split decision in the Divisional Court, the Court of Appeal refused FoE’s challenge and reconfirmed the longstanding position that unincorporated international treaties, such as the Paris Agreement, do not give rise to domestic legal obligations in the UK.
An opportunity to lay down a marker not taken
UKEF UKEF judgment echoed the conclusions of the High Court in the R (Elliott-Smith) v Secretary of State for Business, Energy and Industrial Strategy.
presented the Court of Appeal with a fresh opportunity to hold the UK government to the Paris Agreement. Before this decision, such challenges had been met with limited success. The
Meanwhile, in R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd  UKSC 52, the Supreme Court rejected FoE’s argument that the Airports National Policy Statement (favouring the development of a third runway at Heathrow Airport) was unlawful because it failed to take account of the Paris Agreement. In that case, the Supreme Court found that neither the UK’s formal ratification of the Paris Agreement nor ministers’ statements expressing the government’s intention to enshrine the net zero emissions commitment constituted ‘government policy’.
In UKEF, perhaps unsurprisingly, the Court of Appeal was reluctant to “second guess the executive’s decision making in the international law arena where there is no domestic legal precedent or guidance”. As for the decision-making itself, the Court concluded that the Secretary of State had asked the right question and taken reasonable steps to familiarise itself with the relevant information to answer it correctly (applying the so-called ‘Tameside principle’). In applying the principle, the Court noted that where a decision involves the application of scientific knowledge, in line with precedent, the decision maker is afforded greater discretion.
Nevertheless, there is no sign that climate change related legal challenges to government action in this area more generally are abating. Greenpeace are challenging the North Sea Transition Authority’s approval of the Jackdaw gas field development, which they argue constitutes a breach of the UK government’s duty to consider the environmental impact of new fossil fuel projects.
Further afield in the US, arguments are being raised in Held v State of Montana alleging that the State of Montana’s support of fossil fuels accelerates climate change and infringes on the claimant's constitutional right to a clean and healthful environment.
Room for challenging government policy?
It may well be that NGOs see more success where they are able to demonstrate that a government decision is irrational on the basis that it contravened existing government climate change policy. Interestingly, in UKEF, the Court of Appeal, noted (obiter) that FoE did not contend the decision was irrational on the basis that it would, "if it had been made some 6 months later, have contravened the UK Government’s then climate change policy".
Results of previous challenges to policy statements have been mixed. While the government’s 2050 Net Zero Strategy was found to be unlawful as it failed to meet net zero ambitions set out in the Climate Change Act 2008, ClientEarth’s challenge to the Secretary of State’s decision to grant development consent to two Drax turbines was not successful. In this case the court found that in the context of the Planning Act 2008 it is within the Secretary of State’s discretion as to how to strike the balance between acting in accordance with a “relevant national policy statement” (in this case the need to invest in additional fossil fuel infrastructure) and the adverse impacts of the proposed development (i.e. the known environmental impacts).
The Grantham Research Institute on Climate Change and the Environment observed that “there is a growing expectation that those with historical responsibility for emissions will take action to address the climate crisis, and that this expectation is starting to inform perceptions of reasonable standards of conduct” and that “avoiding a fully transparent appraisal of climate risks is becoming increasingly untenable”.
Despite this, the record of judicial review challenges in this jurisdiction suggest that civil society may have to find routes outside the courts to exert pressure on the executive to deliver on what it has ostensibly committed to support.
 R (on the application of (1) Friends of the Earth Limited (2) ClientEarth (3) Good Law Project and Joanna Wheatley v Secretary of State for Business, Energy and Industrial Strategy  EWHC 1841 (Admin)