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The Court of Appeal has today dismissed an appeal in the case of R(Boswell) v Secretary of State for Transport.
In the proceedings the Claimant sought a quashing order in relation to three development consent orders (DCOs) for road improvements to the A47 near Norwich.
The Claimant contended that there had been no assessment of the significance of the cumulative carbon emissions of the schemes and thus there was a breach of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017.
Agreeing with Thornton J’s first instance decision, the Court of Appeal concluded that the Secretary of State had not erred in law in granting the applications for the DCOs.
The Court identified (Judgment paragraph 53) that the 2017 Regulations require a decision maker to assess the likely significant effects of a scheme in “an appropriate manner”. Thus, which assessment methodology to adopt when considering the likely significance of an effect is a matter of judgment for the Secretary of State which is only challengeable on rationality grounds.
The Secretary of State’s decision to adopt the methodology which National Highways had utilised to assess the cumulative effects of the Schemes was not irrational given that the methodology included consideration of the total cumulative emissions on the affected route network with all three schemes in place and that each individual schemes’ emissions were considered against the relevant carbon budgets, which themselves are a measure of the total cumulative emissions permissible nationally (Judgment paragraph 49).
The Court of Appeal placed importance upon the fact that when assessing the impact of carbon emissions, unlike in respect of other environmental impacts, the receptor is the planet as a whole. The Court emphasised (Judgment paragraph 27) the guidance set out in “Assessing Greenhouse Gas Emissions and Evaluating their Significance” (“the IEMA Guidance”) which states:
“There is no greater local climate change effect from a localised impact of GHG emission sources (or vice versa)”
“All global cumulative GHG sources are relevant to the effect on climate change”.
“Effects of GHG emissions from specific cumulative projects therefore in general should not be individually assessed, as there is no basis for selecting any particular (or more than one) cumulative project that has GHG emissions over any other.”
In this context, the Court concluded that the Claimant’s contention that, to avoid an error of law, the significance of the carbon emissions of each scheme had to be assessed in combination with carbon emissions from the other schemes against the national carbon budgets was to be rejected since there is “no logical basis upon which any such wider exercise could have been founded, and the inevitably arbitrary choice of the other sources of carbon emissions to be considered would only have given a spurious impression of precision to the resulting assessment.” (Judgment paragraph 51). Indeed, the Court described such an exercise as “scientifically pointless” and that there was no “meaningful way” in which a wider assessment of cumulative emissions could be carried out given the lack of any geographical boundary for such emissions (paragraph 52).
Ultimately, the Court of Appeal concluded that the Secretary of State had considered the issue of the significance of the schemes’ cumulative carbon emissions and reached a reasoned and rational conclusion upon that matter (Judgment paragraph 54).
Reuben Taylor KC acted for National Highways.
A copy of the judgment can be found here.
