With one bound Boris was free! That seems to have been the government’s reaction to the Court of Appeal’s decision in relation to Heathrow, at least judging by the Transport Secretary’s somewhat disingenuous statement that as this was a private sector project the government would not be appealing the decision. Given how quickly the statement was made and how long the 2 related judgments were (143 pages) one wonders whether they were even read, let alone considered. 

But in all the excitable commentary about judges making Heathrow expansion unlawful, what has been overlooked is that the victory for green campaigners is much narrower than it seems. The key points are:-

• It was none of the court’s business whether Heathrow should be expanded or not. Its ruling was not about that nor about whether expansion was compatible with the government’s climate change obligations. The merits or otherwise of aviation expansion “are the Government’s responsibility and the Government’s alone.” Similarly, it was perfectly possible for there to be an aviation expansion policy compatible with Britain’s legally binding climate change obligations. Nothing in this judgment forces the government towards any one particular view on this topic. Rather than interfere in such a highly charged political decision, the courts lobbed the ball straight back at the government.
• All the challenges to Heathrow expansion were lost, save for one. Importantly, all but one of the challenges on environmental grounds by a range of groups were dismissed.
• The challenge which won was on a technical planning point relating to the “Airports National Policy Statement: new runway capacity and infrastructure at airports in the south east of England” (“the ANPS”). This had failed to set out how the Government had taken account of its commitments under the 2015 Paris Agreement on climate change. 
• The point is a narrow one under planning law. The updated 2008 Planning Act requires the Transport Secretary to take account of the government’s obligations under the Paris Agreement and give an explanation of how this has been done. The ANPS did not contain such an explanation and since this was a legal requirement, the ANPS had not been done properly and was, therefore, unlawful. (In this case, Grayling (yes, Britain’s very own reverse Midas strikes again!) appears to have been given the wrong legal advice, apparently being told that he was obliged to ignore the Paris Agreement). At any event, like most of his other decisions, it will be left to someone else to sort out the consequences.
• Until the defect is remedied, the decision to go ahead has to be paused.
• Paused. Not stopped. The onus is now on the Transport Secretary either to amend the ANPS to take climate change matters into consideration, withdraw it as a national policy statement or leave it as it is. The decision not to appeal does not remove this obligation.
• So it is perfectly possible for Grant Shapps to set out how the government is taking the Paris Agreement into account in the ANPS, thus making it lawful and permitting Heathrow expansion to go ahead. Indeed, it would be odd for him not to consider these obligations and leave an unlawful policy statement out there. 

The Supreme Court may yet overturn this decision, of course. But enough of law. What of the politics? 

If the policy decision is reissued with a clear statement about how the government has considered its climate change responsibilities and determined that aviation expansion is compatible with these, runway 3 can still go ahead. (Expect green groups to challenge again though a challenge on the substance of a decision is very much harder to win.) Would a Minister wish to embarrass his PM? Or would he assume that the voters who care about Heathrow are largely lost to the Tories anyway? It’s not as if Boris is particularly anti-a large London airport. He just wanted one in a different place. 

Shapps could withdraw the statement and not issue another one. That would kill Heathrow expansion certainly. More importantly, it would send out a very important message about the government’s approach to one of its key priorities. This government is very keen on infrastructure projects of all types. “An Infrastructure Revolution” as the manifesto put it. (The manifesto’s environmental section was very much shorter and largely focused on trees, national parks, fly-tipping and reducing the use of plastics.) Pretty much every infrastructure project will need to comply with planning law and will have carbon and other environmental consequences. Even without legal challenge, getting them built takes time. The Tories will want voters, especially new Northern Tory voters, to see tangible rewards for their votes well before the next election. There is not much time. Infrastructure spending is also key to preventing or mitigating any Brexit and/or virus-induced recession. 

So the government will surely want to avoid giving the impression that it will cave in to “green” challenges, if this risks slowing down or stopping infrastructure projects closer to the government’s heart. It will want to show that it can do it more infrastructure, building, transport links, roads, railways, hospitals etc and still achieve its climate change targets. Expect a revised ANPS in due course. 

How easy will it be in practice to build, build, build and still reduce carbon emissions? Technical ingenuity can achieve much. But it is not a panacea. Or not yet anyway. The Climate Change Act 2008, as amended in 2019, is vaulting in ambition but vague with the details. It provides a very large stick with which to beat incompetent Ministers with, a high bar for the government’s lawyers to meet to make a government decision challenge-proof but few practical steps to achieve its goals. It does not set out any way of assessing how to measure the costs of this necessary development here versus those carbon reductions over there. Nor does it make clear whether a project can be assessed on its own merits or has to take into account externalities (the “green” terminal becomes less green if all those extra journeys are added back in). It is the equivalent of a New Year’s resolution to “get fit” turned into a legally binding contract with penalties, but without a plan for how or when. 

This is where individual detailed national policies matter, where the trade-offs between this road or that necessary hospital and the associated carbon emissions/reductions/costs come sharply into focus. This is where the politicians’ desire to make much admired gestures on the world stage come up against voters’ wish for practical improvements to their lives. The government may well be able to reconcile both. But if it can’t, might it sacrifice the vaulting ambition?  Might it seek to modify the Climate Change Act to give itself more room for manoeuvre to achieve what it believes its voters will care about in 4 years time?

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