The High Court ruled that the Secretary of State for Transport (“the SoS”) did not break the law in approving the £ 27.4 billion road investment strategy 2: 2020-2025). (‘RIS2’) (R (Transport Action Network Limited v. Secretary of State for Transport [2021] EWHC 2095 RIS2, which set the objectives and financial resources of Highways England (“HE”) for the expansion of the United Kingdom’s strategic road network, was found to comply with legal obligations and, contrary to the challenge of the Transport Action Network (“TAN”), has not failed to comply with environmental considerations under the Infrastructure Act of 2015.

Background

RIS2 was launched on March 11, 2020 and detailed the government’s long-term strategy for the expansion and funding of the strategic road network in England. The strategy includes projects such as the Thames Underpass, the A303 Stonehenge Tunnel and the A417 Missing Link. HE is responsible for achieving the objectives of the SIF, as the designated road authority.

The Infrastructure Law of 2015 gives the Secretary of State the power to define an IRS containing the objectives to be achieved by the PE and the funding resources for the achievement of these objectives. However, article 3 (5) of the 2015 law provides that when the Secretary of State adopts a road investment strategy (RIS), he must take into account, in particular, the effect of the IRS on the environment and the safety of motorway users. .

TAN’s challenge

TAN, a nonprofit campaign group for sustainable transportation, has filed for judicial review against the adoption of RIS2. TAN argued that the SoS did not properly take into account the effect on the environment, in particular to ensure compliance of RIS2 with (i) the Paris Agreement, (ii) the net zero target of the United Kingdom and (iii) the fourth and fifth carbon budgets set out in the 2008 Climate Change Act.

In particular, TAN argued that by adopting RIS2, the SoS was subject to a legal obligation “”(a) to take into account a quantitative assessment of the carbon emissions of projects in RIS 2 not only in 2050 but also in the period up to this year and (b) to form a judgment on how these emissions would affect the achievement of these three objectives [i-iii above] UK.’ Although TAN accepted that the 2015 law did not require these issues to be taken into account, the application for judicial review was submitted on the grounds that these considerations were “”obviously material ‘ and so that it was irrational for them not to be taken into consideration.

It has been recognized that when a decision maker decides to consider an issue, it is up to him to decide how and how hard to investigate it. The decision-maker’s judgment can only be challenged for irrationality. Therefore, TAN’s challenge was based on the alleged irrationality of the SoS for failing to take into account “obviously important considerations”, such as the Paris Agreement. This argument would only succeed if TAN were able to demonstrate that the SoS’s decision to adopt RIS2 was irrational. To be irrational, a decision must have gone beyond the range of rational responses of different decision makers with the same information, or be based on flawed logic.

The SoS disputed TAN’s comments. The SoS argued that the above issues had been considered by the Department of Transport (“DfT”) and by the SoS itself. His consideration was based on his knowledge of relevant policies and client change objectives and on a briefing of managers on the impacts of RIS2. Moreover, even though the High Court found that it had disregarded the elements identified by TAN, they were not “”obviously materialthe considerations that the SoS was obliged to take into account. The SoS argued that the emissions from the various projects within RIS2 were minimal and would have insignificant effects under the 2008 Climate Change Act and the Paris Agreement. Therefore, they were too trivial to be considered.

It was recognized that the role of the High Court in this application was to ensure that public bodies act within the limits of their legal powers and in accordance with relevant legal principles. It is not for the court to be concerned with the merits of political decisions or the associated political, economic or social choices.

What was the judge’s decision?

Justice Holgate dismissed TAN’s application for judicial review. The main findings on the legal issues submitted by TAN’s challenge were as follows:

  1. That the IRS was a high-level strategy focused on public investment in the strategic road network and rejected TAN’s claim that the IRS was an environmental decision-making document. This meant that only a low intensity approach to judicial review was needed and TAN would have the heavy burden of proof to prove that the decision was “”irrational, absent in bad faith or manifest absurdity “ (citing R (Spurrier v. Secretary of State for Transport [2020] PTSR 240).
  2. Knowledge of SoS when configuring RIS2 was sufficient. For example, its understanding of the content of RIS1 and the relevant objectives under the 2008 Climate Change Act. It was determined that the SoS’s awareness of national policy, supported by briefings from officials on the implications of RIS2, meant that it was irrelevant that the SoS was shown to support numerical analysis. The hardware with which the SoS could have been supplied was’not the test for a public law challenge ‘.
  3. The SoS did not have to take into account the numerical assessments of the planned carbon emissions. The SoS had not been irrational in failing to take into account an “obviously important” consideration. That said, Justice Holgate accepted the DfT ruling that RIS2’s carbon emissions would be legally insignificant. Thus, even if the SoS had taken them into account, they would not have materially affected its decision.

What are the practical consequences of this case?

This decision comes less than two weeks after the publication of the “Transport Decarbonization Plan” which outlines the government’s path towards net zero transport. The plan also promises a government review of the National Policy Statement for National Networks, which underpins the current road investment and planning policy, but that review will not be completed until spring 2023. TAN has already said publicly that it is “unacceptable” to keep the National Policy Statement for National Networks in effect for a further two-year period.

In a time of unprecedented heat waves, fires and floods, tackling carbon production in the transport sector will continue to be of critical and urgent importance. It is not for the courts to determine whether the government’s current road investment policy is sufficient, but it will likely continue to be at the forefront of public scrutiny.


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