Blog: 20th October 2023 - Corporate Partner, Browne Jacobson

Local Government and the Green Agenda

Climate change and the loss of biodiversity are two of the most pressing matters affecting the world today. A reflection of this is that over 300 local authorities have declared a climate emergency and many have made great progress with their green initiatives.  We’ve seen the introduction of a range of measures to reduce carbon emissions, such as Clean Air Zones, installing electric charging points, promoting cycling, installing cycle lanes and using electric buses, to name just a few.  These schemes have been progressed pursuant to the priorities of the relevant local authority.

Dealing with these twin challenges is often referred to as the Green Agenda. The Green Agenda is currently very topical due announcements made by the PM on 20 September 2023.

The announcements on 20 September included:

• A delay on the ban of new diesel and petrol vehicles until 2035 (previously 2030)
• Announcement of an expectation to phase out fossil fuel boulders by 2035, pushing it back from 2026
• An increase in the Boiler Upgrade Scheme grants
• Scrapping the policies that would force landlords to upgrade energy efficiency in their homes
• Confirmation that polices such as discouraging flying, reducing meat intake, and having seven recycling bins would not be brought forward.

Also in the news has been the expansion of the ultralow emissions zone in London, the 20mph speed limit in Wales and the concept of 15 minute cities.

Whilst none of this changed the law (the Net Zero target by 2050 remains, as do the legally binding targets in the Environment Act 2021) it is still significant, as it seeks to create a political divide on the Green Agenda. Previously the Green Agenda has enjoyed a largely bi-partisan approach.

The role of local authorities

Despite legally binding climate targets, and numerous higher-level policies such as the net strategy, precisely who should take what action and when is still unclear.

Local authorities are a critical player in furthering the Green Agenda, acting as a role model and a driver of change. They have significant input over areas such as housing, transport, health and well-being, but no additional funding or steer to take particular decisions.

As set out in Browne Jacobson’s recent joint report with the Local Government Information Unit (LGiU) on Net Zero and local democracy, maintaining democratic support is essential for furthering the green agenda, because it will enable shared understanding and build public support for change.

The recent announcements from central government are likely to have a chilling effect on areas which have previously enjoyed a large amount of cross-party support. This is likely to make it increasingly difficult (but not impossible) for local authorities wishing to take more novel action to further the green agenda, due to increased political and public opposition. 

What does this mean for local authority lawyers?

The role of a local authority lawyer is broad. A key aspect is about ensuring that their local authority takes lawful decisions. Whilst local authority powers are significant, if local authorities decide to undertake green initiatives (many of which are novel and therefore have little or no precedent) above and beyond their statutory duties then this increases the risk of challenge.   

This is especially the case given the precarious position of local government finances and the anti-green agenda rhetoric used by central government. New green initiatives often are about driving change (for example in how we navigate our urban spaces). It is a key part of the local authority place maker role. However as change is often controversial this increases the chance of challenge.

Unfortunately the risk of successful challenge is also increased, as is often the case when new and controversial polices are implemented as there are more legal uncertainties. This means that the role of the lawyer is more important than ever.

It is important that lawyers recognise that the law hasn’t changed. But equally the public perception and business confidence in the Green Agenda has been altered by government announcements. This needs to feed into the assessment of legal risk by lawyers.

Accordingly it has never been more important that decisions need to ensure they follow procedural requirements exactly. Proposals may need to acknowledge that there are a number of ways of achieving an objective and explain why particular options are chosen (often there is no perfect option to further the Green Agenda – there are trade-offs and these shouldn’t be used to stop action from being taken). They may need to ensure that whatever is agreed is flexible enough to adapt as our understanding of the impacts improves. Risks may also be reduced by engaging directly with lawyers in other local authorities. In our experience other local authorities who have undertaken similar initiatives are very happy to share their experience and learning.

Overall lawyers need to be able to advise that, as with anything new, that the legal risks with new proposals pursuant to the Green Agenda have the potential to be greater. However by taking legal advice at appropriate stages the risk of legal challenge can be reduced. History is likely to judge favourably those local authorities are prepared to be brave, and lead the Green Agenda within their areas! 

Ben Standing

Partner

Browne Jacobson