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The English Court of Appeal handed down a blockbuster decision last week which held that the British Government had to take into account the impact on global warming from adding a long-planned and long-delayed third runway to Heathrow Airport. The reason: Britain’s decision to sign the Paris Agreement of December 2015. The Heathrow runway project is estimated to cost some £14 billion and take until 2028 to complete. When completed, the third runway would accommodate 700 additional flights per day, which would significantly increase carbon emissions.
The judicial decision did not scrap the project, but it branded as “legally fatal” the transportation authority’s failure to consider British obligations under the Paris Agreement in formulating its Airports National Policy Statement (ANPS), which sets the standards for the expansion of Heathrow. Accordingly, any new determination to build the third runway there—or indeed any other airport expansion—could easily be challenged again given that ANPS uses an open-ended test that requires the transportation authority to prepare “an Environmental Impact Assessment to identify, describe and assess effects on human beings, fauna and flora, soil, water, air, climate, the landscape, material assets and cultural heritage, and the interaction between them.” (¶ 4.12).
The Government has decided not to appeal the decision, and it is uncertain exactly what the new inquiry must cover. But the court did stress that “the Government’s commitment to the Paris Agreement was clearly part of ‘Government policy,’” which “followed from the solemn act of the United Kingdom’s ratification of [the Paris Agreement] in November 2016.” At the same time, the waters are further muddied as the airport owners have indicated their intention to press forward with a judicial appeal to a higher court.