Report of public meeting 20 February 2025
Our guest speaker for February was Niall Toru, senior lawyer at Friends of the Earth, who spoke to us about ‘Climate in the Courts’. Niall’s slides are available to download1.
Apologies but due to a technical problem there is no recording of this month’s meeting. This also means that these notes couldn’t be reviewed against the recording, so may be less detailed than usual.
Present: Adrian Sherlock, Alexina Cassidy, Andy Wallace, Anthony Arthur, Clare Robertson-Marriott, Dave Pearson, David Garlick, Eva Pennycate, Harry Mellor, Jane Wood, Jasmine Cassidy, Jean Troy, Leonie Beale, Maria Lee, Mick Lorkins, Mike Longman, Nici Wilcox, Olivia, Peter Conquest, Rupert Knowles, Russell Hickman, Teresa Cox, Tim Allen
Apologies: Clare Slater, Emmie Williamson, Hilary Haynes, Stephen Clark
Introduction
Niall is originally from Northampton and went to university here, before moving to London for work and now lives back in the town.
He mainly works on climate litigation. Friends of the Earth (FoE) has a team of 4 lawyers and 2 legal interns. They take on a small number of strategic cases, selected on the basis that they will have impacts wider than the facts of the case, such as leading to policy change or getting significant media coverage.
What is Climate litigation?
This can take a number of forms as climate cases can be brought in various ways:
- Judicial review. This is a way of ensuring that those who hold political power don’t abuse it – e.g. councils. Has been used quite effectively in climate litigation. Note that judicial review and other legal processes are tools that FoE are using, often quite effectively, however they are not enough to close the gap between where we are and where we want to be. What is really needed is strong policy and legislation. Litigation is good but it can’t do everything.
- Consumer protection law. Can be effective against greenwash.
- Company law. This enables shareholders to keep their directors honest and anyone can buy shares, become a shareholder, and use that as a launchpad for litigation. This is not easy and hasn’t succeeded so far but the number of cases is growing.
- Tort law eg negligence claims. This can be used if you’re injured or your property damaged. This has been used to take on fossil fuel companies, mostly in other countries so far rather than the UK.
- Employment law and workers’ rights. It’s inevitable that current laws in this area are going to be really stretched as the impacts of climate change worsen.
- Human rights law. This is a very interesting area - the European Convention on Human Rights is about 75 years old and doesn’t mention environment at all. Cases include someone in Turkey who was living next to a rubbish dump and suffering substantially from pollution. The recent case brought by elderly Swiss women against the Swiss state has opened up a new argument including in the UK about new opportunities to bring climate litigation. The UK government’s climate adaptation plan is being legally challenged, relying on the Swiss case.
Climate litigation is not all good – there is another side to it. For example:
- Damages claims against protest organisations
- Backlash against corporate ESG (environmental, social and governance). For example disputes about the principle of investing – where pension funds want to take their funds out of fossil fuel companies on ethical grounds there has been pushback on the basis that profit should be the overriding principle. This has mainly been in the US but may happen over here.
- Strategic litigation against public participation (SLAPPs), which means using the courts to silence critics.
- Anti protest injunctions.
Cases about fossil fuel projects
It is known that fossil fuels are a fundamental driver for the climate crisis, and that we can’t open new fossil fuel projects if we want to meet climate change goals. This is inconvenient if you are a politician who wants to look good on climate issues but still wants to open new projects for other reasons. To get round this creative accounting is used to make it look as if a new fossil fuel project is within carbon targets i.e. count flaring of gas from the oil rig is counted when calculating the carbon impact of a project, but not emissions from use of the oil being produced. This is a tactic commonly used across industry and government which has been successfully pushed back on through litigation.
Weald Action Group
The Weald is an area in SE England, historically an area of oil production including a site in Surrey called Horse Hill. In 2019 Surrey County Council granted permission to drill for oil at Horse Hill for 20 years, claiming that emissions from the oil produced weren’t relevant. The Weald Action Group, led by Sarah Finch, took legal action and was supported by FoE. The case was rejected in court and this decision upheld by the High Court but the Supreme Court by a majority of 3-2 struck down the planning permission. The fossil fuel industry have fought really hard to ignore the results of their activities and we need to put a stop to that including by giving the public full information about the impact of fossil fuels - “you can only care about what you know about”.
Whitehaven
This was the first proposed new deep coal mine in the UK for 30 years. The intention was that it would produce coal for steelmaking until 2050. Planning application was made in 2017 and has been fought by local people, including by a fantastic group called ‘the Nanas’ who have also been successfully resisting fracking.
FoE opposed the planning application including at a planning enquiry in 2021. In 2022 Michael Gove, then Communities Secretary, decided to grant planning permission. The legal challenge to this decision succeeded last year.
The grounds on which this case was won included the argument about taking account of carbon emissions from the coal produced. Another significant challenge was to a claim often made that because a proposed coal mine is more efficient than another one proposed elsewhere, this one will provide cheaper coal and price the other one out of the market. Therefore, building this coal mine will mean lower emissions than if the other one went ahead instead. Often this is just an assertion with no actual evidence behind it to prove that the investors in the other coal mine won’t just go ahead anyway. The judge in Whitehaven called that out which means in future such assertions will need to be backed by evidence.
Finch fallout
The Weald/Sarah Finch case has had a domino effect, with a number of individual on and off shore projects quashed or withdrawn because they failed to properly measure climate impacts. This doesn’t mean the projects are gone, it means the decisions to consent to them have been struck down. It is possible for the developers to reapply so there may be more battles in the future.
The government has advised that in late spring this year there will be new guidance about what the Finch ruling means for assessing climate impact. FoE reviewed and made comments on a draft version, unfortunately it is much too weak.
An analogy that has sometimes been used is one of a national 'carbon bucket', arguing that each new proposed project only adds a little to the bucket. This ignores the climate science which is telling us that the bucket is already overflowing with no room for more.
The guidance will come from Ed Miliband’s department – so far he has toed the line, e.g. on the Heathrow third runway, but hopefully he will decide to push back at some point.
Cases about national plans
In the UK these are based on the Climate Change Act 2008. This requires 5-yearly plans for both mitigation (cutting emissions) and adaptation (preparing for impacts).
The Act introduced carbon budgets, which are set 12 years in advance, for example the 6th carbon budget covers mid 2030’s. The government then has to publish a plan showing how it’s going to meet the budget. The government has done that for the 6th carbon budget and been successfully sued because the plan was inadequate - it didn’t say how much each policy was expected to cut emissions by. The government then published a carbon budget delivery plan, was sued again and lost again. The new government now has to produce a third plan. FoE really don’t want to have to challenge it again, what they want is for politicians to start pulling the levers available to them to drive down carbon emissions. As mentioned before climate litigation can only get you so far.
The next (7th ) carbon budget for the years around 2040 will come out in 2026. Next Wednesday the UK Climate Change Committee is due to publish advice on how to deliver this budget. This is going to be interesting because the UK government has now taken all the ‘low hanging fruit’ for cutting emissions, such as moving away from coal – this reduced emissions without having much impact on how people live. To achieve further emissions cuts will require changes such as flying less or cutting consumption of meat and dairy. There is now no political consensus on climate change, so there will not be cross party agreement on the 7th carbon budget.
Adaptation
On slide 3 is a photo of Doug Paulley and Kevin Jordan. Doug is disabled and a disabled rights activist; he suffers from overheating and lives in a care home where he has had to buy air conditioning for his room and can’t leave his room in hot weather. Kevin Jordan had a house in Hemsby on the Norfolk coast which had to be demolished around Christmas 2023 because of coastal erosion caused by climate change. This case2 was lost in the High Court but is being taken to the Supreme Court for permission to appeal and could also go to the ECHR if necessary.
Cases about protest
Niall doesn’t do so much of this himself but colleagues at FoE do; FoE as an organisation is very much about nonviolent peaceful protest.
5 members of Just Stop Oil were convicted of conspiracy to cause public nuisance because they held a Zoom call to talk about a potential protest. They received prison sentences of 4 and 5 years. Until recent changes in legislation it was unknown to have any custodial sentence for peaceful protest. These protesters have appealed, supported by FoE. Their appeal was heard in the Court of Appeal in January – it’s worth noting that they are appealing against their sentences, not the verdicts, using Human Rights arguments. The outcome of this is awaited.
Q&A
Daniel Shaw (one of the JSO 5) has been released from prison on bail this week but is not allowed to have any contact with friends or fellow members of JSO for 4 years – is this usual?
It sounds like these are licence conditions for being released.
Is it possible to take legal action against local authorities in relation to climate change?
The most likely approach would be judicial review. The Climate Change Act doesn’t apply targets at a local level. Any local targets set by councils are not legally binding so it would be difficult to sue. Potentially legal action could be taken if a council issues a plan and there is a legal error. It would all depend on the facts of each case.
Do you know about the Better Business Act? This is a campaign to change company law to require businesses to take legal responsibility for their impact on people and the environment, not just their shareholders3.
Not aware of this specifically but it sounds like a very good idea. The bit of law it’s trying to change is the duty on directors, to expand it beyond just shareholders. Challenges so far in the UK against directors just haven’t worked. Climate Earth have tried and failed, and the response was quite dismissive. This shows the law does need strengthening.
Some companies have gone down the route of voluntary ESG commitments but this seems to be going in the wrong direction now with commitments being rolled back. Legislation is needed – FoE is part of the Corporate Justice Coalition campaigning for a Business, Human Rights and Environment Act4.
Do you work with other organisations like Client Earth?
Yes, definitely. FoE have worked with Client Earth and with the Good Law Project, and they meet regularly. The other organisations have a slightly different background so a lot of their lawyers have commercial and corporate law experience which is useful for FoE to tap into.
Legal action is expensive – how does FoE fund litigation?
FoE saves money by having its own legal team but needs to use external barristers and solicitors too. They are lucky in having a network of sympathetic lawyers who work for them at less than the going rate. Costs are met through normal fundraising, though occasionally there may be a specific funding appeal for some cases. The real cost exposure is the opponent’s costs – the general rule is that if you lose you pay the other side’s costs and this can be huge. It is possible to ask the court to limit exposure to the other side’s costs, because of the international Aarhus convention, which says it shouldn’t be too expensive to stop challenges being brought. As a result of this FoE’s exposure to costs is usually only £10,000, otherwise it could be millions.
How about when you’re working with local groups?
FoE legal team can’t act for local groups, partly because they don’t have capacity but mainly because there are professional rules which limit who you can act for. In the Sarah Finch case FoE intervened but didn’t act for her directly.
Would it be possible to use the principles of Natural Justice against a local council?
Natural Justice is a legal principle used mostly in cases of an individual’s civil liberties. For example if someone applied for a taxi licence and was unfairly shut out, that’s quite a strong case under Natural Justice. But it would always depend on the facts of the case and the process.
If a planning committee chose to ignore points made in public – who do you appeal to?
Planning decisions can be appealed to a planning inspector but that’s a different scenario. Complaining about the process would be done through judicial review. But how do you show points have been ignored rather than listened to and disagreed with? This would be a difficult evidential point. Judicial review is also very expensive.
Is FoE looking at how procurement of goods and supply chains can be improved so that companies take more responsibility?
Yes, not by Niall but a colleague at FoE is. This is about better due diligence etc - there is a lot of campaigning to improve the law in this area.
How did you get into law?
A degree in anthropology followed by a conversion course. Niall didn’t always want to do climate law – he qualified in local government and then did planning inspector cases in the High Court before finding a home at FoE.
DONM:
Thursday 20th March. The speaker will be Alan Ryan, Programme Manager of the Flood and Water Team, WNC
Subsequent meetings:
April 17th – Climate Adaptation risk workshop. Something we haven’t done before and would very much like people to attend and contribute to.
May 15th - Natasha Ginks from https://www.renovategreen.co.uk/ and Cosy Homes Oxfordshire; her company is focused on sustainable retrofit for older houses and she also lectures on retrofit for traditional buildings.
References
1. https://ca-wn.org/MemberDocs/Climate_change_and_the_courts-CA-WN_20.2.2025.pdf
3. https://betterbusinessact.org/
4. https://corporatejusticecoalition.org/our-campaigns/due-diligence-law/