CASE COMMENTARIES : CHALLENGING POLICY ON CLIMATE CHANGE GROUNDS : CALVERT , GILBERT : 27 ( 3 ) ENV . LIABILITY 79
In dismissing the claim , he held the following :
• That the scope of the defendant ’ s duty to inform themselves was defined and circumscribed by the nature of the decision they had to take ; 11
• The Decision was not whether the Project should go ahead and , therefore , would have no material impact on emissions generated by the Project which was to be developed in any event ; 12
• The Decision was multi-faceted , requiring a range of judgments to be made across a wide spectrum of policy areas involving questions of political policy , economic and scientific judgment . The decisionmakers ’ judgment about what information was required in order to make their decision is entitled to a wide margin of appreciation and a relatively low intensity of enquiry and review ; 13
• There was no legal or policy obligation to quantify Scope 3 emissions . Nor was quantification of Scope 3 emissions necessary for the purposes of the Decision ; 14
• It was implicit , obvious and accepted that the development of a major LNG field would lead to very high levels of emissions . Quantification of GHG emissions ( if it could be achieved ) would not advance arguments in relation to the decision that the defendants had to take . UKEF was entitled to decide that , although it chose to include consideration of climate change impacts and the Paris Agreement alongside other factors in making its decision , it was not obliged to give them greater prominence or weight or to obtain further and more technical information than it did ; 15
• The CCR did not set out or purport to provide a comprehensive calculation and assessment of the Project ’ s Scope 3 emissions . It was not obliged to , not least because ( a ) the defendants ’ decision would have no impact on emissions ; ( b ) Scope 3 emissions ( and how they could be accommodated in carbon budgets ) would be the responsibility of purchasing countries in the light of the use to which the LNG was put ; ( c ) UKEF was entitled to accept advice that the variables affecting future use and generation of Scope 3 emissions would render any calculations too uncertain to be of value ; and ( d ) the defendants could rationally take the Decision without having quantified estimates of Scope 3 emissions ; 16 and
11 ibid para 236 . 12 ibid . 13 ibid . 14 ibid para 237 . 15 ibid .
• UKEF ’ s approach to whether the Project was in alignment with Mozambique ’ s stated climate policies involved recognition of the conflicting aims and aspirations of the Paris Agreement and an evaluative balancing exercise . 17 It was entitled to form the view that the support for the Project that was in contemplation was in accordance with Mozambique ’ s obligations under the Paris Agreement as properly understood and that view was at least tenable . 18
Mrs Justice Thornton respectfully disagreed with Lord Justice Stuart-Smith ’ s analysis .
She concluded that :
• UKEF failed to discharge its duty of inquiry in relation to the calculation of Scope 3 emissions and that UKEF ’ s judgment that a high-level qualitative review of the impact was sufficient was unreasonable ; 19
• There is well-established methodology for quantifying the full emissions impact of a project and that UKEF was given clear advice by its own experts that the failure to quantify the Scope 3 emissions undermined the credibility of its climate assessment ; 20
• UKEF had set out to produce a climate impact assessment that would ‘ fully acknowledge ’, ’ fully consider ’ and ‘ evidence ’ the climate change risks presented by the project so that they could be ‘ coherently presented to the ultimate decision makers , alongside the other project considerations ’ but that the climate assessment did not , however , include a calculation of the Scope 3 emissions ; 21
• That , accordingly , UKEF failed to make reasonable and legally adequate enquiries in relation to a key consideration in the decision making ( namely climate risks ); 22 and
• That the failure to quantify the Scope 3 emissions , and the other flaws in the CCR meant that there was no rational basis by which to demonstrate that funding for the Project is consistent with Article 2 ( 1 )( c ) of the Paris Agreement and a pathway to low greenhouse gas emissions . 23
16 ibid para 238 . 17 ibid para 231 . 18 ibid para 240 . 19 ibid para 331 . 20 ibid para 333 . 21 ibid paras 332 and 333 . 22 ibid para 333 . 23 ibid para 335 .
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