The rule of climate change law
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The day after protestors from the Just Stop Oil Group drew significant criticism by spraying paint on Stonehenge, the Supreme Court gave judgement that practically stopped the development of oil production in Horse Hill, Surrey (for the time being). This is a significant moment.
It reminds me of talking to my friend's teenage child, who was complaining about the adult world 'doing nothing' about climate change. He was surprised when I challenged him, starting with Climate Change Act in 2008, running through to the Environment Act 2023 and into regulatory and market ESG considerations for business. That has basically influenced the work I have done over the last 20 years or so in renewable energy projects. Those projects, I concluded, have contributed to a drop in emissions for electric power production in the UK from over 500g/kwh to under 150g/kwh. Sadly, he was quite startled that we had already made this progress.
Let us pick that apart.
The Horse Hill judgement was essentially that the planning considerations ought to take account of not just the immediate build but the impact of using the project for the intended purpose - here, using the oil produced. As you can appreciate, the last part of that is very significant indeed.
Like much law, it was not as dramatic as the court 'banning' oil developments - they just said the planning authority had not properly considered everything. So, planning authorities can still take into account other points which might make them consider it acceptable to proceed with such projects. However, with Surrey County Council having declared a 'Climate Emergency' on 9 July 2019 it will be exceedingly hard to justify that the balance of considerations falls in against the greater environmental impact.
Likewise, most councils in the UK have declared a 'Climate Emergency', so the additional impact consideration is likely to have a very wide effect. Even if there is no such council declaration, there is now plenty of space for challenge from an objective point of view.
This represents a longer state of progress that I have been observing since I started my first windfarm projects in the early noughties. The Climate Change Act set the first significant marker in 2008 - the consequences of which have slowly been filtering through.
Carrot and stick approach
Of course, there are two primary ways in which the law can impact behaviour - carrot and stick. The stick is limitations on what is permitted. The carrot is market incentivisation - primarily setting up structures to create opportunity. In the renewables sector the latter has clearly been a major driving force, with subsidy systems and contract arrangements making projects feasible until the market could stand on its own feet etc. But the regulation has slowly been creeping up on us since the original CO2 targets were set by the Climate Change Committee.
Planning permissions and long-term impact
But then you get something like this case - you cannot obtain planning permission without thinking about the long-term climate impact. That is not a ban or incentive, but a persuasive shift. I observed the same when considerations of ESG in investment decisions came into play - not only whether your investment may be directly hit by climate issues, but whether the investment may fail due to change in consumer/economic thinking. Or perhaps even more significantly now, whether someone might eventually sue.
And it is the wider, long-term direction of legal travel which I wish to mention here. From the cranking up of such cases, it is not that hard to see the equivalent of the tobacco cases being brought on environmental impact across certain part of advanced economies in due course. Just last month, the ECHR handed down judgement to the Swiss KlimaSeniorinnen against the Switzerland - a group of ladies winning their case for the state not doing enough to deal with the daily impact of climate change on their greater vulnerability as older people. And Shell had a significant judgement against them in the Netherlands to reduce emissions by 45% (which will include their supply chain).
Here in the UK, there have been more and more attempts at climate change actions and, whilst not many have been successful, you could see it all edging closer until you get something like this Horse Hill case.
Cumulative effect of decisions
When paired with the investment decision requirements, I would suggest such risk is not to be taken lightly. And there will be a cumulative effect of such decisions, such that the impact potentially becomes much wider. I accept the reaction by Switzerland was to threaten to withdraw from the ECHR and Shell are appealing. Similarly, the UK could technically reverse the Climate Change Act if the political wind changed. But we cannot ignore the fact there has been a significant underlying structural change in the way that societies must be thinking to get this far in their institutions from 20 years ago.
Long-term impact
And that change may be too far beyond reprieve given, so far as I can see, the next generation is not likely to back out of dealing with climate change as the practicalities of it bite harder (which just appears to be an agreed scientific and statistical reality). There is a new vested interest in those who see the need to deal with the consequences of climate change in the longer term. And that new vested interest is organising itself. There are many not-for-profit organisations and charities which are supporting such cases. In the Surrey case, it was Friends of the Earth, but organisations like Client Earth, the Good Law Project and Greenpeace are all holding the Governments to account. In fact, the former three successfully challenged the Government twice on Net Zero requirements.
I then argued very early on that, irrespective of attitude towards climate change itself, the opportunity it represented would inspire new investment. And that showed itself in the massive amount of capital seen flowing into the renewables sector. But not only the major corporations saw/have started to see the light, innovating for new markets.
And so back to our paint spraying protestors. Theirs was a reaction of those without agency. However, we do have agency in UK society - the rule of law. The people speak, influence and make the laws by which they wish to be governed. And then they are enforced; in this case inspiring human technical innovation to produce the enormous practical changes that I set out above. It is not fast, it is not perfect, but it has been an observable fact.
And so many of you have worked alongside me to mould a society we hope will be better for the next generation. Like my child's friend, it is now for us to tell our story and inspire them they have the agency to do the same.
Contact James to discuss this further.
