The Court of Appeal’s judgment on the expansion of Heathrow airport manages to be both momentous and unexceptional at the same time. It is momentous because the Court, despite recent populist noises from the government about courts meddling in political decisions, did not shy away from holding the government to account for its decision-making on the third runway. In its judgment it held that the government, under a planning Act governing large infrastructure projects like Heathrow, was legally obliged to take into account its own ‘policy’ on climate change. This policy included not just domestic policy, as the government had tried to argue, but also the government’s international policy commitments, notably in terms of the Paris Agreement on climate change. Because the government had failed to consider how Heathrow expansion would fit with the government’s commitments under this Agreement, it had therefore acted unlawfully. The judgment is unexceptional because the Court is not saying that Heathrow expansion cannot go ahead, full-stop. What it means is that the government must go away and address that question. What is unusual about the case is that the Court went out of its way, in a separate explanatory statement, to point out precisely how it was not taking the political decision away from ministers and was acting only to ensure the legality of the relevant decision. Not, in this particular instance, that the government is likely to be put out by the judgment. Indeed one might well suggest that, unlike recent judicial review cases on deportation where the government has found its actions thwarted (albeit only temporarily), Boris Johnson will welcome this one because it enables him to point to being forced to reconsider, in a way that may otherwise have been politically awkward. His personal stance against Heathrow expansion has long been quite clear, but it sits uneasily with the post-Brexit, globalist, open for business mantra propounded by many on the right of the Conservative party. It is, nevertheless, difficult to see how expansion of air transport – decarbonisation of which is realistically a long way off – can be regarded as compatible with the UK’s climate change commitments. If Heathrow goes ahead, something else will have to give and it is currently not clear what that ‘something’ might be. Furthermore, whatever sector is hit instead is likely to have good grounds for arguing that aviation should be taking its fair share of the burden of cutting our carbon emissions under the polluter pays principle. As a matter of climate justice, we are all in this together.
Professor Chris Hilson
Director of the Centre for Climate and Justice, University of Reading