Using de minimis to do the minimum

THOSE TRACKING the evolution of UK Government thinking on its responses to climate change and the achievement of decarbonisation will have found more evidence of back sliding than renewed zeal in the tranche of policy statements just produced by the recently-established Department for Energy Security and Net Zero.

Three documents of note were published: the Powering Up Britain Energy Security paper, the Carbon Budget Delivery Plan and the Consultation on the implementation of the Zero Emission Vehicle (ZEV) Mandate, together amounting to several hundreds of pages.

The reason for their publication is worth recalling too. The Government was forced to present a new Net Zero Strategy after the High Court ruled last year that its previous version Building Back Greener in 2021 was “unlawful” and “inadequate”, in a case brought by climate activists including Friends of the Earth. The court’s decision was that the Government must publish a new strategy by 31 March 2023 – so here we are, just in time, with the replacement Powering Up Britain: Net Zero Growth Plan.

Few will find either the presentational message or the new raft of documents very reassuring. There is little to suggest the Government has been thinking hard enough about its position. On the contrary, there appears to be a concerning degree of complacency.

The highly anticipated strategy comes just a week after the latest report by the United Nations’ Intergovernmental Panel on Climate Change (IPCC), which warned the world has one last chance to avoid catastrophe.

The IPCC said there must be a 60% cut in the planet’s carbon emissions by 2035 – compared with 2019 levels – to stay below 1.5°C of warming, seen as the minimum to control increasing serious climate instability problems.

A report from the UK’s own independent Climate Change Committee (CCC) condemned the Government on 29 March for “a striking lack of climate preparation”.

The CCC’s Baroness Brown, chair of the Adaptation Committee, said: “This has been a lost decade in preparing for and adapting to the known risks that we face from climate change.” She added: “We have laid out a clear path for Government to improve the country’s climate resilience. They must step up.”

Given the background of Grant Shapps, the first Secretary of State for the Department for Energy Security and Net Zero, established in February, it could have been expected that he would have ensured that this Government update to its net zero strategy would have been more thoughtful about the role of transport. After all, Shapps was Secretary of State at the Department for Transport between July 2019 and last September, and authored its Transport Decarbonisation Plan.

In transport, as in other sectors of the economy, including energy generation, the Government’s approach to reaching its carbon budget commitments seems to be to go slower in the removal of the use of fossil fuels, and to claim the headroom for this with greater use of technologies such as carbon capture and storage. But these are not yet proven at scale, and will not deliver early in the budget period. Indeed, almost two years on from the publication of the Transport Decarbonisation Plan we see measures such as increasing vehicle occupancy as requiring “further development”.

Demand reduction measures in the transport sector, led by the UK Government, appear to be off the table, at least until after the next election.

As Professor Greg Marsden puts it, there is very little now expected of the transport sector for the period 2023-2027. The average annual emissions estimated for this budget period are no lower than the emissions recorded in 2021 (although there were some Covid-related reductions then), he points out. Nor is there a budget line included in the Carbon Action Plan setting out what is expected from local authorities, and no new money announced to deliver a step-change in outcomes at the local level.

Indeed, the recent watering down of cycling and walking funding commitments and the limited expectation of decarbonisation from active travel in the Carbon Action Plan is reflective of the emphasis on new technology across the plan, says Marsden. This will be very disappointing to many local authorities that have set ambitious carbon reduction targets for zero emissions from 2028 onwards in anticipation of a requirement to that end in the next iteration of Local Transport Plans, for which regrettably there is still no official guidance issued by the DfT.

As the Committee on Climate Change has pointed out, achieving climate goals requires systemic changes across all sectors, beyond just energy generation, which the Government now seems to be predominantly concerned with. That means action extending to other significantly unsustainable sectors such as transportation, agriculture, and infrastructure development and land use. Collaboration and innovation at all levels – governments, businesses, and individuals – will be key to a sustainable, low-carbon future and adapting to the ways in which our climate has already changed.

Rising to the challenges posed by climate change will require organisations and individuals to ensure every decision they make is climate-informed. This will need to be at both the mega level that the Government itself can directly influence on matters like energy supply and carbon capture, if that is possible, and a much more detailed micro level where the operative phrase might be “every little helps”.

Indeed, it is in this area of neglect of the smaller elements of action that the DfT is becoming more and more vulnerable to criticism. In the draft National Network National Policy Statement, on which we commented in the last issue, there seems to be a core principle emerging between both the DfT and National Highways, that the carbon costs from individual elements of the road programme can continue to be effectively dismissed as ‘insignificant’, ‘immaterial’, ‘negligible’ and effectively legally ‘de minimis’.

This convenient and questionable use of the de minimis exclusion looks set to be a key area for challenge in road scheme development and appraisal.

De minimis is a legal principle that allows for matters that are small scale or of insufficient importance to be exempted from a rule or requirement. It can be used by the courts as an exclusionary tool to dismiss trivial matters from litigation.

But the DfT/NH position has been described by critics, including Professor Phil Goodwin, and in this issue, by Professor Glenn Lyons in his critique of the draft NNNPS, as a unique definition of ‘insignificant’ applying to roads. This fails to recognise the significance of carbon emissions from the sector, they say, and applies low carbon values to the effects of additional road traffic and other consequences of road building. In this it is not consistent with how matters of scale and impact from carbon in the activities in other sectors of the economy are treated — both in industrial and consumer-facing practices where reduction, offset or aggregate ’net carbon’ objectives are generally being followed.

Two years ago, the environmental campaigning group the Transport Action Network (TAN), started a legal challenge to the DfT’s second road investment strategy (RIS2), arguing that it breached climate and air quality laws, and questioning the de minimis approach. This was supported by an expert witness statement about whether the appraisals carried out by Highways England (as NH then was) and the DfT gave a proper assessment of their impact on carbon emissions.

In his part of this, Professor Goodwin focused on those aspects of the carbon appraisal that touch on the principle of de minimis, which he described as being usually translated as “the law does not concern itself with trifles”, under a legal doctrine by which a court can refuse to consider trifling matters.

De minimis had been cited by the DfT as applying in this case, and that the practice of Highways England was to report that the carbon effects of specific schemes are “negligible”, “not significant” and would “not have a material impact”.

Goodwin argued that these impacts were far from trifling, and not all carbon effects of road capacity expansion had been included in the appraisals. The unusual criterion used for ‘small’ did not reflect importance; and there was an inadequate treatment of uncertainty especially in the traffic forecasts.

Increasing road capacity leads to additional CO2 emissions in five main ways, Goodwin has pointed out. Firstly, this happens during the construction period itself, notably in land clearance and preparation, embodied carbon used in the production of concrete and other materials, and tailpipe emissions from contractors’ vehicles and other activities; Then further carbon is emitted during operation from road maintenance, servicing, lighting etc and from road users during the lifetime of the scheme, particularly the tailpipe emissions of that proportion of traffic that has actually been generated or ‘induced’ by the presence of the road itself, including the effect of changes in traffic speed.

There were also the consequential effects of the roads on settlement and activity patterns, notably when they enable developments of housing, workplaces and retailing, and of increasing car-dependent lifestyles, increasing car ownership (and thus increasing the embedded carbon from vehicle manufacturing), and from new patterns of warehousing and freight logistics. The synergetic effects were such that the impact of each single road improvement on its own may be small, says Goodwin, but the combined effects of many, in the context of prevailing transport policies, pricing and management, give a much greater total than the sum of their parts.

Some of these effects are currently neither being acknowledged in the specific situations of individual road schemes nor being taken into account by adding up scheme appraisals as a whole. This is because the DfT’s appraisal rules treat each scheme as a separate entity, and do not include the effects of general policies. The omitted elements (or those that are only partly included) will inevitably lead to an underestimate of the carbon consequences of the road programme, Goodwin has stressed.

On this basis he has calculated that the total emissions of carbon forecast from RIS2 schemes, when added together, give a number that is roundly 100 times greater than that suggested by the DfT as relevant to appraisal of the effects of the programme as a whole.

The DfT had not itself published any assessment of the overall effect of RIS2 on carbon, that is for all the schemes taken together for the whole appraisal period. A suggested figure of 0.28 million tonnes, on examination, only related to the fifth carbon budget period (a five-year window), and only included five schemes, the latest to be added to the programme. It did not include the total capital/construction emissions as specified above.

By contrast, Highways England was understood to have calculated very much higher quantities, though the total was not declared, only the individual schemes and not all elements of carbon generation were included. Thus, Goodwin concluded, when HE’s separate calculations were added up, it gave that figure over a hundred times larger than that suggested as relevant to the programme’s appraisal by the DfT – though neither figure includes all five elements of the different categories of emissions listed above.

These new road scheme estimated carbon emissions – even if they had been correctly calculated – when expressed as a percentage of all CO2 from all sources in the whole economy must inherently look minutely small – a tenth of one percent or less. But this does not sensibly measure the importance of the impacts, and is not consistent with the way in which all other benefits and costs are appraised. By this standard, no initiative to reduce carbon in a local area would be worthwhile but, quite rightly, the Government does not take this view when considering measures to reduce carbon, only applying it to measures that increase it.

All this leads to the conclusion that the total impact of the road programme on carbon emissions is substantially larger than has been suggested by DfT, whose de minimis application is an artefact of an inappropriate standard of what constitutes ‘small’.

It is surely time for there to be proper judgement made on the DfT’s (and National Highways) questionable approach to the de minimis concept with respect to road investment. In this regard it is good that the House of Commons’ Transport Committee is just beginning what looks set to be a detailed examination of the National Networks National Policy Statement, in which the application of this approach is clearly a significant shortcoming. But it might properly be for HM Treasury to take a look at this issue itself, as in its guidance on Governmental departmental sustainability reporting, and the use of de minimis thresholds and other exemptions, all government bodies are expected to comply with the targets set, with any dispensation not to do so requiring permission to be formally requested.

These issues continue to ask very awkward questions of the real status of the Government’s transport decarbonisation plan, and the realities of its stated intentions being achieved, including the excessive dependence on the transition to electric vehicles to vastly reduce emissions.

Even when all cars are electric, building new roads and encouraging more cars means adding carbon emissions from construction, manufacturing and maintenance, so the emissions impact of roads policy is a much bigger envelope than the DfT and NH appear prepared to admit.

Regrettably, as yet there are no standards that govern what activities actually count as delivering net zero, and how calculations on the implications of particular policy ideas are done. “The ‘net’ is always there in front of the ‘zero,’ but the ‘net’ part is a bit vague, especially with country-level commitments,” Derik Broekhoff, a senior scientist at the Stockholm Environment Institute, has said. The nebulous term ‘Net Zero Strategy’ can obscure a lot of important differences in how countries and companies actually plan to limit their contributions to climate change, and the de minimis issue is surely one such.

In the light of the latest findings from the Intergovernmental Panel on Climate Change, the UN Secretary General Antonio Guterres said that all countries should bring forward their net zero plans by a decade.

Sadly, in contrast, the UK Government’s new statements of its net zero intentions suggest that it is still slow pedalling and seeking wriggle room over the commitments it has already made. The matter of the ‘de minimis’ treatment of the impact of new road infrastructure looks like a classic example of that behaviour, and one which needs to be challenged.

Peter Stonham is the Editorial Director of TAPAS Network

This article was first published in LTT magazine, LTT866, 3 April 2023.