Court of Appeal Upholds Decision on Cumulative GHG Emissions Assessment in A47 Trunk Road Case

Introduction

The case of Andrew Boswell, R (on the application of) v The Secretary of State for Transport represents a judicial review into the decisions made by the Secretary of State for Transport concerning development consent for three road improvement schemes around Norwich. Key to this case is the challenge of how the cumulative greenhouse gas (GHG) emissions were assessed in relation to the road schemes under The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (the IEIA Regulations). This article will dissect the case law and identify the legal principles applied, linking them to relevant parts of the provided summary.

Key Facts

Dr. Boswell appealed against decisions to grant development consent for three A47 trunk road schemes, questioning the lawful discharge of the obligation to examine and assess the cumulative GHG emissions likely resulting from the proposed developments. His challenge was dismissed in the Administrative Court, prompting an appeal to the Civil Division of the Court of Appeal. The appeal focused on whether the Secretary of State’s assessment of the cumulative impacts of carbon emissions was lawful under the IEIA Regulations.

Legal Principles

Several legal principles were highlighted in the judgment, key among them:

Judicial Review and Environmental Impact Assessment (EIA)

The court clarified the scope of judicial review in matters of environmental impact assessment, aligning with precedents that such assessments involve a measure of judgment not typically considered a hard-edged question of law. As seen in cases such as Bowen-West and Preston New Road, the existence and nature of cumulative effects depend on the facts of each project.

Cumulative Impact Assessment

The IEIA Regulations require that the EIA must identify and describe the likely significant environmental effects of a development, taking into account cumulative effects with other existing or approved projects. Cumulative impact assessment, in turn, is bound by current scientific understanding and the practicability of undertaking such an assessment.

Significance of Impact

Another critical point was the assessment of the significance of an impact, which is not for the courts to decide but for the appointed decision-maker, consistent with the approach outlined in the R (Law Society) v The Lord Chancellor case.

National Comparators for GHG Emissions

An intriguing legal principle discussed in this judgment is the appropriateness of using national carbon budgets as comparators for assessing the significance of GHG emissions from a proposed development, as GHG emissions lack a geographical boundary and cumulatively affect the global environment.

Outcomes

The Court of Appeal affirmed the decision of the Administrative Court, agreeing that the Secretary of State lawfully discharged the obligation under the IEIA Regulations in each decision letter. The court found no legal error or irrationality in the approach taken by the Secretary of State concerning cumulative impact assessment. It was ruled that the comparison with national carbon budgets was appropriate given the global nature of GHG emissions, and that any other cumulative assessment would lack a logical basis and provide no additional value.

Conclusion

The case law revisits the evaluative nature of EIA and the importance of judicial restraint in cases of environmental impact, emphasizing the decision’s reliance on scientific understanding and practicality. The challenge mounted by Dr. Boswell ultimately failed due to the acceptance of the Secretary of State’s rationale for assessing cumulative GHG impacts within the legal requirements and the scientific context relating to carbon emissions. As the court observed, the Secretary of State’s approach, despite being criticized for its lack of explicit cumulative analysis, remained within the bounds of reasonable responses available and did not evidence flawed reasoning. The judgment thus upholds the principle that GHG emissions are unique among environmental impacts due to their lack of geographical limit and the consequent use of national carbon budgets as the only meaningful benchmark for assessing their cumulative impacts.