The Northern Ireland Climate Change Act: Unintended consequences?
TLT Solicitors Partner for Planning, Environment and Future Energy, Andrew Ryan, examines the link between the Climate Change (Northern Ireland) Act 2022 and the recent High Court’s Alternative A5 Alliance case.
At the time of writing, the Court of Appeal has yet to hear the appeal brought by the Department for Infrastructure against the High Court’s judgment in the Alternative A5 Alliance case. The challenge is the third time that the A5 upgrade project has been taken to court. The attempt to get the A5 project over the line on this occasion failed largely due to a failure to properly consider the climate impacts of the project; a legislative trap arguably of the Executive’s own making.
The last time that a decision to approve the A5 was brought down was in the wake of the seismic decision in the Buick challenge against Arc21’s proposed energy from waste project in north Belfast. Buick established that devolved departments could not make major planning (or other) decisions when no Minister was in post. The finger of blame at that time could be pointed squarely at the collapsed Executive, and requirements relating to ministerial decision-making stemming from the Northern Ireland Act 1998.
The main cause of the A5’s latest downfall was the more recent Climate Change Act (Northern Ireland) 2022 (CCANI), specifically the duty for departments to exercise their functions in “a manner that is consistent with” achieving carbon reduction targets. The Court of Appeal will further consider the nature and scope of that duty and its decision, however it falls, will be invaluable in understanding the CCANI’s relevance to infrastructure decisions.
This raises the question of whether the full implications of the CCANI, laudable though they are in dealing with the climate emergency, were fully thought out when the legislation was agreed. The implications of the 1998 Northern Ireland Act that arose in Buick were almost impossible to have predicted. However, in imposing a duty to consider the 2050 net zero target and associated carbon budgets, the CCANI seems, with the benefit of hindsight, almost bound to cause difficulties for projects that may result in significant carbon emissions, even where such projects are seen as critical infrastructure.
On the flip side, the implications for projects such as major renewable energy development where the benefit is positive remain equally obscure at this point. Whatever the Court of Appeal concludes, expect more litigation on the CCANI over coming years as other projects with significant carbon emissions or reductions grapple with impacts on carbon targets. This, inevitably, is a major headache for the Department for Infrastructure, and one that could not have been in the mind of the legislators when the CCANI was drafted. The road to planning hell is paved with good intentions.
The implications of the CCANI are just one of many factors in major infrastructure projects that require expert legal advice right from the outset. Alongside our home-grown infrastructure expertise here in TLT’s Belfast office, significantly reinforced by recent partner appointments in construction, banking, and corporate, TLT’s new 32-strong Infrastructure, Planning and Parliamentary Team brings unrivalled expertise in nationally significant infrastructure projects across the UK.
We are here to help get the detail right and minimise the risk of legal challenges that have delayed so many projects over the last decade or more.
Andrew Ryan
Partner, Planning, Environment and Future Energy
T: +44(0)333 006 0967
E: andrew.ryan@tlt.com
