- On 13 May, the Court of Appeal handed down an important judgment on the ambit of the Aarhus Convention in HM Treasury v Global Feedback Ltd [2025] EWCA Civ 624.
- That case concerned a claim for JR bought by Global Feedback Ltd (“GFL”) against HM Treasury and SoS BEIS seeking to impugn a decision made in February 2023 to make regulations1 (the “2023 Regulations”) giving effect to a Free Trade Agreement (“FTA”) agreed between the UK and Australia in 2021 (coming into force in May 2023). GFL claimed the Regulations would lead to a substantial increase in greenhouse gasses (“GHGs”) as (i) beef production methods in Australia produce more emissions than those in the UK and (ii) the lower prices of Australian beef will lead to an increase in production. Moving production from one country to another resulting in higher net GHG emissions GFL termed “Carbon leakage”. GFL alleged the Treasury/SoS BEIS unlawfully (illogically/irrationally/misread art. 4(1) UNFCCC2) declined to assess the carbon leakage impacts.
- GFL argued that the “national law relating to the environment” (art. 9(3)) which was contravened was Part 1 of the Taxation (Cross-Border Trade) Act 2018 (the enabling Act which allowed the 2023 Regulations), s. 28 of which required regard to be had to international obligations) and the 2023 Regulations themselves. GFL did not rely on the Constitutional Reform and Governance Act 2010 (requiring scrutiny of FTAS) or s. 42 Agriculture Act 2020 (statutory requirement for a report explaining to what extent FTA measures are consistent with the maintenance of UK levels of statutory protection for the environment). (See §17).
- In a hearing before Lang J, HM Treasury/SoS BEIS argued the claim should not benefit from Aarhus costs protection. They lost: [2024] EWHC 1943 (Admin). They appealed.
- The Court of Appeal allowed the appeal. In so doing, it provides helpful commentary on both procedural and substantive matters.
- Procedurally, the CA made clear that when applying for Aarhus costs protection, it not only needs to state whether and why the claim falls within Arts 9(1) (2) or (3), but also which provision of the “national law relating to the environment” is said to be contravened: §73.
- On the substance, the Court of Appeal conducted an in depth review of the history of, and jurisprudence relating to, the Convention. It summarised at §132 that:
Public law principles regulate the legality of the administrative actions of public authorities exercising a wide range of functions in many areas of public service, not simply environmental protection and regulation. Public law principles do not form part of our law relating to the environment. Their purpose is not to protect or regulate the environment. Instead, they form an important part of the rule of law within the constitutional separation of functions between Parliament, the Executive and the Courts. Where a principle of public law is contravened, it would be wrong to say that that in itself amounts to a breach of environmental law, or for that matter any other type of law in the context of which the decision or action under challenge has been taken or carried out.
- At §132 the Court set out that the question in this case was “does Art.9(3) of the Aarhus Convention apply where a claim alleges that a defendant’s decision or act under a legal provision not relating to the environment is vitiated by a public law error in some way connected to the environment or an effect on the environment?”
- GFL and WWF (the intervenor) maintained that a claim raising any public law error in some way connected with the environment fell within art. 9(3), even if it had been taken under a legal provision which did not relate to the environment. The Court of Appeal disagreed: §135.
- It stated:
“136. In R (Friends of the Earth Limited) v Secretary of State for Transport [2021] PTSR 190 the Supreme Court set out key principles on a decision maker’s obligations to have regard to relevant considerations ([116]- [121]). First, there are considerations which a statute requires, whether expressly or impliedly, a decision-maker to take into account. Second, there are considerations which a decision-maker must take into account, because they are not merely relevant but are “obviously material”, in the sense that it would be irrational not to take them into account. Third, there are considerations which are simply relevant and a decision-maker may choose whether or not to take them into account. However, in relation to that third category, a decision-maker is not obliged to go through every matter which could be relevant and to decide whether or not to take them into account. In my judgment it follows that the mere fact that a decision-maker does not take into account a consideration in the third category cannot found a legal challenge. Finally, whether a decision-maker is required to take a consideration into account or whether he chooses to do so, the weight he gives to that matter, including whether to give it no weight, are matters for him, subject to review on the ground of irrationality.
137. In determining the extent to which Art.9(3) may apply to any of the above scenarios, an essential question is whether the claimant is able to allege that the defendant has contravened a national legal provision for the protection or regulation of the environment. That will depend upon the wording, context and purpose of the provision under which the defendant has acted.
138. Take for example a defendant which has acted under a statute the purposes of which are not in general for the protection or regulation of the environment. The legislation may nonetheless contain a provision which requires a particular factor to be taken into account and the language or context demonstrates that the object of that provision is to protect or regulate the environment. In that situation Art.9(3) will most likely be engaged. But another piece of non-environmental law may simply impose a general obligation to take into account all relevant considerations without more. Venn indicates that a provision of that kind does not engage Art.9(3). I agree. The purposes of such a provision is not to protect or regulate the environment.
[…]
142. What should be the court’s approach where a claimant alleges that a defendant, when acting under a legal provision not relating to the environment, failed to take into account an obviously material consideration, such as the alleged effect of his decision or action upon an environmental interest or issue? […] As previously stated, the purpose of a bare principle of public law is not to protect or regulate the environment. Its purpose is to regulate the lawfulness of decisions, actions or omissions of public authorities, irrespective of the various functions they carry out. Therefore, a principle of public law, without more, does not form part of our law relating to the environment. It does not become so by being applied in a factual matrix which involves environmental impact or effect, nor could that matrix alter the non-environmental nature of the legal provision under which the defendant acts. Article 9(3) is not engaged. […]
143. The same analysis applies to the situation where an authority acting under a nonenvironmental legal provision takes into account an obviously material consideration or simply a relevant consideration, but acts irrationally in the handling of that matter. The mere fact that this concerns the environment, or an effect upon the environment, does not turn the breach of a public law principle into a breach of national environmental law. It does not alter the non-environmental nature or purpose of that legal provision. In such circumstances, Art.9(3) is not engaged”
- In this case neither the 2018 Act nor 2023 Regulations were national law relating to the environment. The challenges were straightforward allegations of breaches of public law principles, not law relating to the environment. It fell outside article 9(3) and did not benefit from Aarhus costs protection (§148). In so doing, the Court also held that the earlier High Court decision inR (Friends of the Earth Ltd) v SSIT [2021] EWHC 2369 (Admin) was wrongly decided (§150).
- The Court’s approach is helpfully summarised at §151:
“it would be wrong for a judge simply to ask whether a claim or ground of challenge is to do with the protection of the environment or with the effect of a decision or legal provision on the environment. Instead, it is necessary to return to the language of the Convention and its purposes as established in the case law, and to have in mind the principles for the interpretation of international treaties (see e.g. [88]-[90] and [121] above). Put in a nutshell, what matters is whether the purpose of the national law that has allegedly been contravened is to protect or regulate the environment, not, whether the decision being challenged has an effect on, or some connection with, the environment.[…]”
This blog post was written by Nick Grant.
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Authors of the Aarhus blogs
– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.
– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.
– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).
– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.
