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High Court battle to block £27bn Highways England plans dismissed

28th Jul 2021 | Trade & Construction

A High Court legal challenge to block Highways England’s £27.4bn RIS2 plans on environmental grounds has been struck down.

On Monday afternoon, Justice Holgate threw out the case, which centred on whether transport secretary Grant Shapps had considered the carbon emissions of the construction work on RIS2, and if emissions would have a “material” impact on overall climate targets.

The case had been brought by campaign group Transport Action Network (TAN) against Shapps and Highways England. The group had won an earlier case against the approval of a third runway at Heathrow on similar grounds. The RIS2 case had a two-day hearing last month.

TAN had made two main claims against Shapps: that the secretary of state had broken the law by failing to sufficiently consider the environmental impact of the five-year investment plan, calling for a judicial review of the decision process; it also claimed that the carbon emissions created by the construction of schemes in RIS2 would contribute to climate targets being breached.

In its defence, the Department for Transport (DfT) said it had taken the climate change aspect into account and, additionally, that the carbon created will be so small, in relative terms, that the government was not legally required to consider it.

On the first point of environmental impact, Justice Holgate ruled that “adequate” consideration had been provided to the secretary of state via a briefing note. The judge acknowledged that the briefing had been short and had not provided Shapps with a detailed analysis, but that it was still “legally adequate”.

On the second point, regarding the carbon impact of RIS2, the DfT argued that 97 per cent of road carbon emissions are from vehicles using the network. As such, the carbon contributed by the construction of schemes for RIS2 is “immaterial” with regards to overall targets. Justice Holgate agreed with this point.

“I see no reason to question the judgment reached by the DfT that the various measures of carbon emissions from RIS2 were legally insignificant, or de minimis, when related to appropriate comparators for assessing the effect on climate change objectives,” he said.

TAN director Chris Todd said the government had been “let off the hook” thanks to the low bar set for proving that consideration had been given. “The judgment has failed to grapple with the clear requirement created by parliament that ministers must carefully consider environmental impacts. He [the judge] reasoned that the more important the decision, the less a court should be willing to scrutinise decision-makers.”

A DfT spokesperson said the department “welcomed” the decision, adding that it was committed to decarbonising the UK’s roads and highlighted recent net-zero targets set by Highways England. These included zero-carbon construction by 2040 and for the organisation to be net-zero by 2030.

TAN has sought permission to appeal the decision.

The campaign group has another case against the transport secretary pending regarding the National Networks National Policy Statement. It claims the document, which was released in 2014 and sets the guidance for bringing forward nationally significant road and rail projects, is “seriously out of date”.

On 22 July, the DfT said it would review the policy, but TAN’s challenge remains live.

By: David Price