Evaluating the environmental impacts of roads only locally but not also nationally is wrong, lawyers plan to tell a High Court judge on October 29 in the latest stage of a legal challenge to the U.K. government’s £27 billion road building progam.
Acting for campaign group Transport Action Network (TAN), the lawyers will argue that the U.K. government must no longer assess each proposed road scheme’s pollution impact individually—what TAN calls “salami slicing”—but should carry out a cumulative assessment.
Part of TAN’s challenge was earlier rejected by a judge and now the campaign group aims to renew its claim via an oral—albeit remote—hearing.
TAN started its legal challenge in April, demanding that the Department for Transport (DfT) and Highways England must scrap their five-year road building plan saying it breaches the government’s legally binding commitment to reach net zero emissions by 2050.
The “stop the salami slicing” argument will be delivered to planning court judge Mrs Justice Laing over Microsoft Teams tomorrow.
TAN is seeking permission to bring a judicial review of the DfT’s roads program on air quality grounds. It was granted the right to challenge its climate impacts in July.
TAN is represented by the same legal team which, in February, halted the DfT’s plan to expand Heathrow.
The Court of Appeal ruled Heathrow expansion plans were illegal because the DfT’s plans did not meet its obligations under the Paris climate agreement of 2015. (Heathrow later appealed this decision.)
At its launch alongside the budget in March, the U.K. government’s Road Investment Strategy 2 (RIS2) was described by Chancellor Rishi Sunak as England’s “largest ever” roads program.
A commitment to ramp up spending on mainly strategic roads was a key manifesto pledge in the Conservative Party’s general election campaign last year.
TAN, a campaign group formed earlier this year, claims that the plan breaches climate and air quality laws, and they charged solicitors Leigh Day to act on their behalf. The firm, in turn, retained the services of David Wolfe QC of Matrix chambers and Pete Lockley of 11 KBW, the same legal team that was victorious for Friends of the Earth and others in the Heathrow case.
In April, TAN director Chris Todd said: “How can the DfT claim to take climate change seriously when it is set to burn billions on the ‘largest ever roads program’ to make things worse?”
The campaign group launched a £25,000 crowdfunder to pay for the legal challenge—this total was reached within less than a week. More than £53,000 has been raised to date.
Friends of the Earth (FoE) pledged its support for TAN’s legal challenge.
“Pushing ahead with a massive road-building program completely destroys any pretence of the U.K. being a world leader in fighting the climate crisis, or of bringing the clean air we all need,” said FoE’s Jenny Bates in April.
“More roads will only mean more traffic, and more planet- and health-wrecking emissions being pumped into the air. The government needs to ditch its dangerous fixation with roadbuilding, and instead boost clean transport options such as trains, trams, bicycles and buses.”
“Road building is a bad idea. Counterintuitively, expanding roads won’t solve the U.K.’s traffic problems. It will encourage more people to buy cars, generating ever more enormous amounts of traffic. This will increase pollution, congestion and greenhouse gas emissions—and make it even harder to clean up our air and stop climate breakdown.”
In March, the DfT released a plan to “decarbonize” transport. In a foreword, Secretary of State for Transport Grant Shapps said that “public transport and active travel will be the natural first choice for our daily activities” and that “we will use our cars less.”
This was hard to square with the road-building plans announced by the Chancellor earlier the same month.
In April the DfT stated that RIS2 is “consistent with our ambitions to improve air quality and decarbonize transport.”
TAN wants the government to spend the money saved on road building plans to be diverted into public transport, rail freight, cycling and walking.
The legal challenge in the Heathrow case was to the airport’s national policy statement—that is, the government’s policy on airport expansion.
“We tried to challenge the equivalent policy for roads—the very dull sounding national networks national policy statement—but the government did not respond,” said TAN’s Ralph Smyth in April.
“What we could move forward on, though, was to challenge the decision to publish the Road Investment Strategy 2.”
That decision did not adequately address the legal obligations in the Paris climate agreement, said Smyth.
“The government could say ‘we think that building roads is so important for the economy, we’ve got to go ahead and we’re going to increase the roll-out of electric cars, so you don’t need to worry about climate change,’” imagined Smyth, but such an approach won’t wash.
“The government started planning this roads program in 2015 but the big decisions on it were taken in 2018. Now, can [the government] really say that in a [few weeks they were] able to rethink everything totally?”
“While TAN has permission to challenge the £27 billion roads program on climate grounds, we didn’t receive permission on the papers on air quality or Strategic Environmental Assessment,” Smyth now says.
On behalf of TAN, barrister David Wolfe will be seeking to renew this permission on Thursday.
TAN and the DfT have submitted “skeleton” summary arguments to the planning court.
It is expected that the main thrust of the DfT’s argument will be that the U.K. government is entitled to assess each road scheme’s pollution impact individually, in effect treating national roads as local ones with no U.K. wide pollution impacts.
“The DfT has refused to do any [national] assessment of the environmental effects of its largest ever road program,” complained Smyth.
“Instead, DfT is ‘salami slicing’ the impacts by only considering them scheme by scheme.”
Highway England’s Strategic Road Network is 2% of England’s roads but accounts for 39% of road carbon emissions.
Tomorrow’s hearing will be about an hour long and it’s expected that Mrs Justice Laing will give directions for an exchange of further documents. She may also decide how long any full hearing would need to be.
TAN believes that the Coronavirus lockdown could “reset” how Britons feel about roads, and that there’s never been a better chance for challenging the green credentials of the U.K.’s road building program.
The Royal College of Physicians says that exposure to air pollution is the top environmental risk to human health in the U.K., with new research suggesting a fifth of COVID-19 deaths are linked to air pollution.
TAN director Chris Todd said: “While the High Court has already agreed to put the DfT in the dock on its climate record, it’s only right ministers should answer to the public how on earth their roads plan is compatible with clean air.”
He continued: “The government is increasingly telling our cities how to run their transport systems. Meanwhile it is letting its roads company, Highways England, off the hook on air pollution, so it can build ever bigger roads. It’s another case of ‘them and us’, with there being one rule for local authorities and another for the government.”
The DfT has been contacted for this story.