The National Adaptation Programme and climate change litigation

A recent challenge to the Government’s climate change adaptation programme failed – yet, it signalled key climate litigation trends. Ryan Kohli explains why.

In R (on the application of Friends of the Earth) v Secretary of State for the Environment, Food and Rural Affairs [2024] EWHC 2707 Friends of the Earth together with two climate-impacted citizens launched a legal challenge seeking to impugn the lawfulness of the Government’s third National Adaptation Programme (“the Adaptation Programme”). Chamberlain J handed down Judgment on Friday, 25 October 2024. The challenge failed. However, the importance of the case derives from its illustration of the manner in which climate change litigation is developing and its focus on the margins of appreciation to be afforded in respect of identifying mitigation and adaptation aims as well as the margin to be afforded in respect of the means chosen to achieve those aims.

The Adaptation Programme was published pursuant to the obligation on Government, under s. 58 of the Climate Change Act 2008, to lay programmes before Parliament setting out the Government’s objectives in relation to adaptation to climate change.

The challenge was brought on the basis that in preparing the Adaptation Programme, the Secretary of State:

  • erred in law by misconstruing the requirements for “objectives” in s. 58(1)(a) CCA 2008 which must be read in accordance with s. 3 Human Rights Act 1998 and the UK’s positive obligations under Articles 2, 8, 14 and A1P1 of the European Convention on Human Rights to have in place an effective framework addressing climate change, and specifically adaptation risks (Ground 1).
  • unlawfully failed to consider the risks to delivery for the “proposals and policies for meeting those objectives” produced under s. 58(1)(b) of the 2008 Act (Ground 2).
  • unlawfully failed to discharge the public sector equality duty under s. 149 EA 2010 (Ground 3); and
  • acted contrary to the Claimants’ procedural and substantive rights under Articles 2, 8, 14 and A1P1 ECHR and so contrary to s. 6 HRA (Ground 4).

Ground 1

The Court considered whether the Secretary of State misdirected himself in law in respect of what was required of him by way of “objectives”. Section 58 imposes a duty to set out objectives “in the form of substantive, specific and measurable outcomes”. The Claimants argued that the risk reduction goals set out in the Adaptation Programme did not comply with that duty.

Chamberlain J held:

  • The word “objectives” in s. 58(1)(a) must be construed by reference to s. 58(1)(b) and (c), which require the SoS to lay before Parliament policies and proposals “for meeting” those objectives and time scales for introducing them. The only way that requirement can be complied with in substance is by setting quantifiable targets which can be either achieved or missed.
  • The Judgment of the Grand Chamber of the ECtHR in Verein KlimaSeniorinmen Schweis v Switzerland (App No. 53600/20) (“VKS”) significantly developed climate change jurisprudence. It was held that the state’s positive obligations extended to adopting measures capable of mitigating the “existing” as well as the “future” risks of climate change and to setting climate targets and taking effective steps towards meeting them. In relation to the adaptation to climate change, the obligation is to put in place and effectively apply adaptation measures in accordance with the best available evidence.
  • There is a narrower margin of appreciation in respect of the setting of requisite aims and objectives but a wider margin of appreciation in respect of the choice of means designed to achieve those objectives.
  • Parliament chose not to impose any express constraint on how ambitious or specific the objective must be and no such constraint can be properly implied. If an objective is thought to be insufficiently ambitious, the remedy lies in the ability of the Climate Change Committee to say so and in the requirement in s. 57(4) to publish the CCC’s report. The Secretary of State will then have to answer to Parliament before which the programme must be laid.
  • Compatibility with the ECHR does not require a different result. The focus of the VKS decision was on the State’s positive obligation to adopt mitigation measures. Switzerland was in breach of its positive obligations to adopt mitigation measures because of a series of lacunae in its domestic regulatory framework. The United Kingdom, by contrast, has an established legislative framework which sets a legally binding target of carbon neutrality by 2050 consistent with the Paris Agreement.
  • In the field of adaptation (as opposed to mitigation), States are to be accorded a wide margin of appreciation in setting the relevant objectives and a wider margin still in setting out the proposals and policies for meeting them.
  • The interpretation of s. 58 by the Court falls within the UK’s margin of appreciation under Articles 2 and 8 ECHR. It is unnecessary to read down s. 58 in the way contended by the Claimant.

Ground 2

  • There was no obligation to consider delivery risks. The “objectives” which the Secretary of State is required to set under s. 58(1)(a) are not required to be quantified or even quantifiable. If the Secretary of State had chosen the adaptation objectives in a specific and quantifiable way, rationality would dictate an emphasis on delivery risk when preparing proposals and policies “for meeting” those objectives.

Ground 3

  • Chamberlain J held that the PSED was not complied with at the time of the publication of the Adaptation Programme. However, on the facts, there had been adequate consideration of the PSED post publication. As a result, Chamberlain J held he was bound to refuse relief pursuant to s. 31(2B) and (3D) of the Senior Courts Act 1981. He correctly pointed out that post the introduction of those provisions, the position was no longer one of discretion.

Ground 4

  • The substantive human rights claims under s. 6 HRA 1998 failed. The Strasbourg Court would likely regard the decision to identify adaptation measures as more closely akin to the decision to select the means by which internationally agreed mitigation objectives are pursued. Such decisions, therefore, attract a wide margin of appreciation.

Although the challenge ultimately failed, the case serves as an extremely useful illustration for how climate change jurisprudence is developing. Paragraph 105 of the Judgment highlights that the margin of appreciation for identifying adaptation aims is wider than that for identifying mitigation aims. The narrow margin of appreciation in respect of mitigation aims is justified by reference to the internationally agreed objective or carbon neutrality by 2050. The margin of appreciation in respect of deciding on the means by which adaptation and mitigation objectives are achieved is wider still. This means that states will continue to enjoy latitude om the proposals and policies chosen to meet climate aims. If an adaptation aim is not thought to be ambitious enough, it is clear that the remedy lies with lobbying the climate change committee.

Further, the Judgment highlights that there is clear authority from Strasbourg (VKS) that the State’s positive obligations extend to adopting measures capable of mitigating the “existing” as well as the “future” risks of climate change and to setting climate targets and taking effective steps towards meeting them. In relation to the adaptation to climate change, the obligation is to put in place and effectively apply adaptation measures in accordance with the best available evidence.

Ryan Kohli is a barrister at Cornerstone Barristers.
A&M Bacon