The Court of Appeal has dismissed an appeal in Andrew Boswell, R (on the application of) v The Secretary of State for Energy Security and Net Zero & Anor [2025] EWCA Civ 669, relating to a decision by the Secretary of State for Energy Security and Net Zero (SoS) to grant a development consent order (the Decision) for the Net Zero Teeside Project, a new gas-fired power station with post-combustion carbon capture (the Project).
Key points
- The courts will not allow judicial review to be misused by claimants who are seeking to dispute the environmental, economic or social merits of Government policy or to continue a campaign against a specific development.
- When granting development consent, the evaluation of greenhouse gas (GHG) emissions in the course of an Environmental Impact Assessment (EIA) and their acceptability are matters of fact and judgment reserved for the decision-maker – this includes any choice of benchmarks (or choice to not use any) by the decision-maker to aid in that decision.
- The court clarified the distinction between the appropriate scope of an EIA, to which the Supreme Court's decision in Finch is relevant (see our blog post here), and the judgment reached on the significance of particular environmental effects, such as GHG emissions, which remains a matter for the decision-maker undisturbed by Finch.
- The EIA process is not an end in itself, but rather a means to achieving better-informed decisions. It is meant to facilitate decision-making, not to hamper or impede it by setting up unnecessary obstacles.
Background
The SoS's decision (the Decision Letter) relied heavily on a report submitted by the Examining Authority in response to the development consent application. In the Decision Letter, the SoS noted that the Project would emit 20 million tonnes of CO2 during its operational life and referred to the fact that National Policy Statement (NPS) EN-1 stated that operational GHG emissions were a significant adverse impact from some types of energy infrastructure which could not be totally avoided. The SoS recognised that the Project's emissions would have significant adverse effects but ultimately concluded that the Project would help to deliver the Government's net zero commitment. The SoS also agreed with the Examining Authority's conclusion that the Project would contribute towards meeting the urgent need for new electricity capacity.
The appellant had lost on all grounds of challenge in the High Court. For further background and a summary of the first instance decision, see our previous blog.
The appeal focused on whether the first instance judge erred in finding that the SoS did not commit any legal error when assessing the significance of GHG emissions related to the Project.
Judgment
The appeal was based on three grounds, which were all rejected.
Ground 1: How the conclusion on "significant adverse effects" was reached and whether there was inconsistency in the decision
The appellant argued that the SoS's assessment that GHG emissions would be a significant adverse effect was carried out in accordance with the Institute of Environmental Management and Assessment guidance (IEMA Guidance), which is intended to assist practitioners in assessing GHG emissions. This was then said to be incompatible with her conclusion that the development would help the Government achieve its net zero commitment based on NPS EN-1. The appellant cited six ways in which the SoS applied the IEMA Guidance in her decision-making process, including the fact that the Decision Letter referred to the IEMA Guidance and did not refer to any other source or method for assessing significant adverse effects.
The Court of Appeal concluded that this ground had no merit as it was based on an obvious misreading of the Decision Letter and the Examining Authority's report. The Court of Appeal considered it "plain" that neither the Examining Authority nor the SoS applied section 6.3 of the IEMA Guidance when deciding that the GHG emissions from the development would have a "significant adverse effect". Although the Examining Authority's report and the Decision Letter referred to the IEMA Guidance, those references were to other sections of that document which were irrelevant to ground 1.
Both the Examining Authority and the SoS evaluated the significance of the GHG emissions in absolute terms, by "contextualisation" and by reference to the relevant policies in EN-1. The Court of Appeal found no inconsistency within the Decision Letter.
In addition, the SoS discharged her obligation to give reasons by adequately explaining the approach she took to the evaluation of GHG emissions.
Ground 2: Assessment of GHG emissions under NPS EN-1 and the relevant balancing exercise
The appellant argued that Lieven J at first instance erred in concluding that paragraph 5.22 of NPS EN-1 "encapsulates the assessment of significance of GHG emissions for the purposes of the EIA Regulations as well as the weight to be given to the assessment of significance as part of a planning balance exercise". The Court of Appeal disagreed with this argument, concluding that both Lieven J and the SoS's approach was entirely legitimate. While EN-1 states that CO2 emissions are a significant adverse impact, it is also clear that this is not regarded by Government as an automatic basis for refusing development consent, which is a broader question taking into account other factors in the planning balance.
The court also commented on the appellant's reliance on R (Finch) v Surrey CC [2024] UKSC 20, noting that that decision was not relevant to the issues in the present case since there was no contention that the scope of the EIA undertaken was deficient or had failed to assess any impacts that should have been included. The court clarified the distinction between the appropriate scope of an EIA (to which Finch is relevant) and the judgment reached on the significance of particular environmental effects, such as GHG emissions. The latter is a matter of judgment for the decision-maker. Nor does Finch affect the principle that where a public authority has the function of deciding whether to grant planning permission for a project requiring an EIA, the authority must decide whether the environmental information is sufficient to meet the relevant requirements (subject to review on Wednesbury principles).
The court took the opportunity to reiterate the point made at first instance that the EIA process is not an end in itself, but rather a means to achieving better-informed decisions. It is meant to facilitate decision-making, not to hamper or impede it by setting up unnecessary obstacles.
Ground 3: Failure to give a lawful and reasoned conclusion
The appellant argued that the SoS failed to comply with her obligation to give a reasoned conclusion under the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (EIA Regulations) in that she did not assess the amount of GHG emissions against a benchmark or by contextualisation.
The court explained that the EIA Regulations do not specify how such matters should or may be approached, nor is there any legal principle requiring a public authority to contextualise the GHG emissions or compare them with a benchmark. The evaluation of the significance of an estimated amount of GHG emissions and its acceptability is a matter of fact and judgment for the decision-maker. Nonetheless, the SoS had contextualised the emissions by making a sectoral comparison. It could not be said that the SoS failed to give legally adequate reasons, or otherwise acted unlawfully.
Comment
The Court of Appeal started by making it clear that it was not concerned with the merits of energy policy or how net zero should be attained within the timescale set by the Government, emphasising that the "environmental rule of law" relies on the independence and impartiality of the judiciary. The authoritative judgment of Sir Keith Lindblom, Stuart-Smith LJ and Holgate LJ also opined that the appellant's approach "is, we think, a classic example of the misuse of judicial review in order to continue a campaign against a development (and the policy in a NPS) once a party has lost the argument on the planning merits. Such an approach is inimical to the scheme enacted by Parliament for the taking of decisions in the public interest." This echoes the strongly worded sentiments made by the first instance judge to the same effect and demonstrates that the courts are seeking to discourage the use of unmeritorious judicial review claims as a campaigning tool in matters of climate change and energy policy.
Having said that, this is an area in which law and policy are rapidly changing, as demonstrated by the Government's recently published supplementary guidance on EIA assessment for oil and gas operators following the judgment in Finch, which impacts how emissions are to be assessed for certain projects going forward.
Courts, developers and potential claimants must therefore keep a close eye on new caselaw and policy, but be careful to interpret and apply new developments appropriately, as the court made clear when explaining that Finch had no relevance to the current proceedings. While some things have changed, not everything has changed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
