Bylined Articles

Climate Change - A Wind of Change for Construction?

By Vijay Bange
June 2020
Construction Law

Vijay Bange

Vijay Bange

On Friday 28th February there was an incredibly well supported and organised Youth Strike for climate change protest in Bristol, at which Greta Thunberg addressed the masses. Thousands were there in support. There were safety concerns given the number of children attending this protest. There were clearly some mixed views given the disruption caused to locals, with anger at the damage to the college green in front of the Anglican Cathedral grounds.

What resonated with me was a local man’s comments during an interview for national news. He said that “it won’t change anything”. However, we then had the decision of the Court of Appeal in favour of climate campaigners that has sent a real wakeup call. The Court ruled that the transport secretary at the relevant time, who made the decision for the new third runway at Heathrow Airport, should have taken into account the latest government commitments on climate change before granting permission for the proposed expansion at Heathrow.

The Paris Agreement, to which there are 175 signatories, marked a new era in the fight against climate change. The Agreement is the most ambitious attempt to tackle the threat of climate change that the world has ever seen and the buyin from governments across the globe evidences that this is a matter at the top of many people’s agendas. The key aspects of the Agreement are wide-ranging, but include things like keeping temperature increases within certain levels and pledging a commitment to minimising the adverse effects of climate change.

It was the Paris Agreement that formed the basis of many of the Court of Appeal’s objections when considering whether the decision to build a third runway at Heathrow was lawful. The Court was at pains to make it abundantly clear that their job was to review the legality of the decision, not the political agenda or the public controversy. The Appeal Judges determined that the government had failed to take into account the Paris Agreement when making their decision over the third runway and accordingly “had not taken into account its own firm policy commitments on climate change under the Paris Agreement”. In the first UK judgment concerning the Paris Agreement, the Court said that this failure was wrong and unlawful. In addition, there had been a failure to properly consider the Habitats Directive, Planning Act and the SEA Directive.

There have been protests before on majornfrastructure schemes by environmentalists, and climate change activists. Newbury by-pass involved the felling of hundreds of trees and the long protests throughout the course of the project were often reported on. Similarly, HS2 has attracted plenty of protests concerning what the campaigners say will be damage to wildlife and plant eco systems, ancient woodlands sites along the route, and the English countryside. However, objections raised by protesters in the past whilst often generating sympathy and support, failed to find a foothold to mount any legal objection.

If change was going to happen it would most likely have its basis from individual conscience. The green agenda is relevant with an acceptance that climate change needs to be actioned now. The government has made a commitment to reducing the environmental impact of cars on roads, to phase out polluting cars by 2030 and replace withelectric and hydrogen. Local authorities have already introduced their own restrictions on motor vehicles in certain parts of cities to reducecarbon emission. Climate change is certainly on the agenda at the local political level.

Coming out of the austerity measures, the present government has made a commitment to deliver major infrastructure projects to boost theeconomy, promising £28.8 billion more on new roads programmes, with considerable investment for the north. As for rail, HS2 following a review was given the green light by the government.

The ministers making decisions and assessments on the go ahead for the third runway at Heathrow did so based on guidelines (updated 2019) when the UK made a commitment to cut its carbon emissions by 80% by 2050. However, two months later the carbon emissions target was raised to 100% by 2050. The Guidelines for making the assessments for benefits, weighing up the benefits and drawbacks of potential increased carbon emissions, have not yet been updated. The Court ruled that the then Transport secretary was required to have taken into account the latest carbon emissions commitments on climate change that the UK had committed to, rather than applying the previous standards, before hegranted the go ahead for the Heathrow expansion scheme. The Court ruled that the government acted unlawfully in not referencing its decision to the Paris Climate Agreement.

The question now is whether there will be Heathrow type legal challenges in relation to the proposed new road schemes and other infrastructure projects that the government has in mind - if the situation is that schemes appear to go ahead without proper consideration of the implications for net zero carbon emissions. The Welsh government has on environmental grounds scrapped plans for a ring road scheme in Newport. A local authority has stopped the expansion of Bristol Airport, again apparently for climate emission reasons.

On 3rd March, it was reported that Chris Packham CBE (naturalist and broadcaster), had launched a legal challenge as to the approval of the HS2 project on the basis that the decision fails to take account of the UK’s commitments to reducing carbon emissions to zero, and the climate impact of the project. The fresh legal challenge is being crowd funded, and has followed on the back of the Heathrow ruling.

These major infrastructure projects are part of the economic plans to fuel growth outside London and for the economy as a whole, by linked up infrastructure. Is there a tussle with economic growth, meeting the ever-increasing public demand and climate change, and does this fall for reconciliation of individual conscience over economic reasons? The reality is that careful consideration will need to be given as part of the planning and decision making process on schemes that need to give consideration to the Paris Agreement, and perceived or indeed actual failures run the risk of legal challenge.

Since this there has been a global pandemic which has brought the world economies to a grinding halt. Airline travel, and motor usage has fallen dramatically to unimaginable levels. However, there are serious concerns about a global recession, and discussions about stimulus to eventually get economies back up and running will dominate the economic and political agenda once the pandemic is over. The economic consequences globally are catastrophic, and the question is whether this will push back the climate agenda.

Will governments now push these large infrastructure projects more aggressively with a view to creating jobs in a struggling economy? On the other hand, political leaders may decide to postpone any non-essential “vanity” projects choosing to invest public funds into other causes. Perhaps we might see a resurgence of alternative funding models and the return of PFI. Only time will tell, but climate change and the environment will undoubtedly maintain high priority on the world’s agenda.

Republished by permission.