Where now for net-zero carbon strategy?

The future of the UK government's net-zero carbon strategy hangs in the balance after the High Court ruled in Friends of the Earth Ltd & Ors, R (On the Application Of) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin) that it was unlawful.

The claimants successfully argued that the Net Zero Strategy: Build Back Greener, published in October 2021, contravened the government's obligations under the Climate Change Act 2008 because it prevented carbon targets set under that legislation from being met.

The court agreed that the strategy lacked detail as to how exactly emissions would be cut, which in turn breached the government's legal duties under the 2008 Act.

The claimants had argued that the strategy's reliance on predictive, qualitative data as opposed to quantitative data meant that it would be impossible to set any effective, accurate targets, thus undermining the act and compromising the credibility of the strategy itself.

In short, the strategy had been approved prematurely, they said, without the requisite empirical data to support its rollout.

Notably, while the strategy was criticised and labelled 'inadequate' by the court, the overall framework and the need to reduce carbon emissions were not, as the Department for Business, Energy & Industrial Strategy (BEIS) previously maintained. Given the strong position BEIS' held at the time of the ruling, there was speculation that any revamped strategy is likely to be similar in both form and approach.

However, in September 2022, the department announced that it would not be appealing the court's decision, which suggests that perhaps, on reflection, it has recognised that there is more work to be done than it originally anticipated. A major focus of the strategy was on eliminating carbon emissions in the built environment, which mounted pressure on contractors and developers alike to align themselves with new industry requirements.

With the built environment accounting for 25% of greenhouse gas emissions in the UK, the construction sector had been getting to grips with the strategy and its implications.

The current strategy does not contemplate any uniform testing to measure a building's emissions. Standardising the regime will be key to tracking and assessing the carbon associated with a building.

Furthermore, with no new regulations that specifically address the way carbon will be reduced, any efforts by the industry to comply with the strategy's obligations are voluntary and often ineffective, largely because other UK legislation and international treaties indirectly impose obligations which support some of the strategy's objectives. Both issues will have to be addressed if the strategy is to have any teeth.

For instance, a new strategy is almost certain to have an impact on the price and availability of sustainable building materials, which will in turn affect the affordability of projects.

Contractors will not only have to be mindful of this when considering a green design but also be aware of other factors that could affect the carbon footprint of a building. These include the potential for using recycled materials rather than sourcing anew, and likewise whether the building – or at least demolition waste – can be reused at the end of its life cycle.

Lenders are also likely to be influenced by any changes to the law, and may also require developers to prove they comply with relevant environmental regulations to access finance. Such compliance may involve upskilling workers, adopting green clauses in contracts and procuring sustainable materials.

Although these are not formal requirements as yet, it will be prudent for the construction industry to step up its efforts to go green, as the built environment is clearly heading in this direction.

Now more than ever, contractors and architects will have to tailor the specifications of a building they design for efficiency as well as procure green materials for it. This will reduce exposure to energy cost rises and the need for near-future retrofitting to comply with more stringent regulations.

Better use of logistics may also help minimise emissions and carbon footprint, and reduce construction costs and waste, which all add value to a project. Making a green investment in the built environment is likely to pay big dividends in the long run.

Time will tell just how and when the new strategy takes shape. However, if the government's growing zeal for the UK to achieve its net-zero targets is anything to go by, the strategy is sure to return in one form or another.