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R (Friends of the Earth, ClientEarth & Good Law Project) v Secretary of State for Energy Security & Net Zero [2024] EWHC 995 (Admin)

29/10/2025

Written By: Zoë Leventhal KC 

Background 

  • The three claimants challenged, for the second time, the lawfulness of the Secretary of State’s strategy for meeting the UK’s net zero target for the sixth carbon budget (2033-2037) under the Climate Change Act 2008: known as the “Carbon Budget Delivery Plan.” 
  • The original plan, known as the “Net Zero Strategy”, had already been found unlawful in July 2022 by Holgate J in the first judicial review of the same name ([2022] EWHC 1841 (Admin)). The Court in that case considered for the first time the Secretary of State’s duties under ss. 13 and 14 of the 2008 Act, to “prepare such policies and proposals as the Secretary of State considers will enable the [relevant] carbon budgets to be met” (s.13(1)) and to set these out in a report to be laid before Parliament (s.14).  
  • The focus of that claim, and of this, was whether the Secretary of State was properly informed about the level of risk associated with the policies in the plan, and any shortfall which might result from those policies in meeting the overall budget.  
  • Holgate J had held (among other things) that the Secretary of State had not taken into account the obviously material consideration of the risk to delivery of individual policies and proposals for meeting those budgets. 
  • In the second claim, the claimants contended that the Secretary of State had still not been given proper information about the risk, such that he could not properly have concluded that the relevant targets would be met. Further, it was contended that he had applied the wrong test under s.13(3) namely that the proposals and policies “must be such as to contribute to sustainable development.” 

Decision  

  • The Court held (among other things): 
  1. There was no statutorily prescribed way in which the information about risk needed to be provided to the Secretary of State nor any freestanding obligation to do so.  
  • However, the ministerial submission on which the Secretary of State’s decision was based failed to identify which, and by how much, individual proposals and policies were likely to miss their targets. That meant that the information provided to the Secretary of State on risk was incomplete. The ministerial submission was based on a package of policies and proposals “being delivered in full.” 
  • Accordingly, the Secretary of State had made his decision on the basis of a mistaken understanding of the true factual position by proceeding on the assumption, which he reasonably understood the ministerial submission to convey, that each of the proposals and policies would be delivered in full. That was not in fact the case on the evidence (as Counsel for the Secretary of State accepted). In making that assumption, the Secretary of State had made an irrational decision based on reasoning not justified by the evidence. 
  1. Finally, the Secretary of State had also erred in applying the wrong test to s.13(3) of the 2008 Act. The term “must” denoted a degree of certainty that a particular outcome would eventuate, and the Secretary of State’s conclusion that this would be “likely” did not meet this higher threshold. 

Comment 

  • The claims have had had an immediate and important practical effect: the plan for the UK’s carbon reduction strategy has now twice been found to be unlawful, and largely for the same reason: a failure to confront the risk that the relevant policies would not meet the full carbon reduction target. 
  • Sheldon J ordered that the Secretary of State lay before Parliament a further report under s.14 by 2 May 2025. Following the 2024 General election, this was extended to October 2025, so the publication of the new plan is imminent.  
  • In legal terms, these case tested the ‘teeth’ of the Climate Change Act 2008 for the first time, with Holgate J’s earlier approach to s.13 since approved by the Court of Appeal in Global Action Feedback [2023] EWCA Civ 1549. First Holgate J and now Sheldon J have concluded that a lawful plan needed to be based on a proper understanding by the Secretary of State (himself or herself) of the risk of under-delivery on the specific polices identified. Otherwise, any plan will not be capable of demonstrating that it “enables” the legislative targets to be met.  

Matrix members  

David Wolfe KC and Catherine Dobson acted for Friends of the Earth in both claims. 

Jessica Simor KC and Emma Foubister acted for ClientEarth in both claims.