Use of evidence and expertise in UK climate governance

This review has been provided on behalf of Prof Maria Lee, Faculty of Laws, UCL

I think this is a great paper, interesting, challenging – it wouldn’t make it into one of the top law journals, but that is clearly not necessary. I should say that I agree with the author on the principle around the coal mine. I don’t think that the evidence points are the most interesting part of the paper – the question of linking (in law / policy) climate targets with individual decisions / projects is crucial.

A few things.

1. It isn’t accurate to say that it is clear / uncontested that new fossil fuel / coal developments are incompatible with the Paris Agreement. That gives the impression that everyone agrees this would be a breach of international law, whilst actually the status of the different parts of Paris (legally binding, and on whom, or not) is extremely complex. Better would be to say that many respected scientists agree that they would make meeting Paris’ 1.5 degree target impossibly difficult on current technology or even would / may be incompatible with meeting the 1.5 target set out in Paris. (This point recurs throughout.)
2. P 4 para at line 138 doesn’t cover all of the points expanded on in this section (misses the planning point).
3. A few points on section 3.2 (which I think leads into a crucial critique).
   1. I wouldn’t cite the NPPF as 2012 – it’s been updated multiple times, and presumably we’re working with the 2021 version here?
   2. The decision in Finch (cited and relied on by the SoS) is significant re downstream emissions. It’s a complex decision, but essentially leaves the inclusion of those emissions in the evaluative discretion of the planning decision maker. (And note that the appeal will be heard by the Supreme Court in June.)
   3. I’m not sure it’s quite nuanced enough to say that the inspector’s job is (solely) about compliance with planning law. The decision is one of evaluative planning judgment. The decision must be lawful of course, and it must comply with all law, not just planning law. The point (and the criticism in this paper as I read it) is that as currently interpreted, no single decision can readily be argued to be unlawful in respect of climate targets. (This point recurs)
   4. Line 198-99 – yes.
4. I think that the claim at 314-315 might be softened – not convinced all of these points are planning matters in law.
5. Line 353-55 – this is a matter of evaluative judgment I think rather than technical evidence? The law on material considerations in planning is fairly complex – the courts (the law) tell us what is and is not capable of being a material consideration, but the decision maker decides what weight to give to those material considerations, including giving them no weight as long as that is not irrational.
6. I take the point and I don’t disagree with the author, but the arguments about neutrality and evidence are going to cut in both directions – climate campaigners, NGOs and local people will also have their own values and beliefs, and we’ll see that challenged in other cases. Similarly with the credentialling that goes on in the table – usually going to help developers rather than under resourced local campaigners. But it’s a really good challenge.
7. The suggestions in 6.1 re the legislation are good, but potentially ever so complex in law.

Additionally, I am not particularly comfortable star rating academic work, but I understand that this is required.

Prof Maria Lee, Faculty of Laws, UCL

The article is an in-depth analysis of the UK government’s approval, following an extensive public inquiry, of a coalmine in December 2022.  Given the UK’s advanced climate legislation, this decision is surprising; given the conservative government’s bias regarding environmental matters, it is not.

The author unpacks the multiple reasons behind this startling decision, inter alia the:

►         fuzziness of the UK’s Climate Change Act of 2008 as regards implementation focus and accountability.  Especially, the greenhouse gas reduction targets are not operationalized and responsibility is diffuse: several government departments are responsible for various sectors; local government has no statutorily assigned role;

►            legislative ambiguity that provides scope for developers to push through destructive ventures even while claiming adherence to climate ambitions.

►         acceptance without evidence of the claim that the coal mine would be ‘zero carbon;’

►         less than scrupulous assessment of the quality of expertise and evidence, also that a false balance between serious and spurious evidence was tolerated.

In short, the UK climate legislation’s lack of clarity all but invited a flawed process and a flawed outcome.  The article proposes a range of reforms to facilitate achieving the UK’s net zero target, such as:

►         instituting clearer rules governing fossil fuel phase-out;

►         ensuring greater transparency and better handling of conflicts of interest in decision-making;

►            devolving climate responsibilities to local areas;

►         separating the targets for the reduction of greenhouse gas emissions from the targets of the removal of greenhouse gases from the atmosphere – so that the latter are assuredly additional, not a ruse to avoid the former.

The author is explicit about her opposition to the Woodhouse Colliery, a declaration that is refreshing and certainly not a detraction from the quality, logic or conclusion of her analysis.