Judicial Review, Climate Change and Argumentation: The Case R (on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy and Drax Power Ltd.

We live in a world when 'climate crunch time' is upon us, and governments are failing to deliver on the commitments they have made to mitigate or adapt to this threat. In efforts to challenge such inaction, environmental campaigners in the UK have increasingly turned to judicial review as a means of holding government to account. But judicial review remains highly contested, dividing campaigners, politicians and legal practitioners over its democratic legitimacy, and indeed its effectiveness, in scrutinising government. This thesis critically evaluates such alternative assessments of judicial review in the arena of climate change action. In this evaluation, it examines the critical case of R (on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy and Drax Power Ltd. This case concerned ClientEarth using judicial review to challenge the government decision to give development consent for Drax to construct a very large gas powered generating plant. Concerned by the impacts of this plant on greenhouse gas emissions and climate change, ClientEarth attempted to use judicial review to overturn this consent. The thesis first problematises the predominant approaches towards judicial review, identifying and characterising two dominant accounts, the Optimist and the Pessimist frames, both of which are grounded in the ‘messiness’ of the UK constitution. Generating a detailed analysis of the Drax case, which critically examines the grounds for review and the argumentation strategies of legal teams in the Court of Appeal, the thesis then develops a third problematisation of judicial review, which it calls the Realist problematisation. This novel Realist account challenges the binary ‘win or lose’ scenarios of dominant accounts of judicial review, foregrounding how litigants can construct spaces of challenge to government, and new argumentation possibilities, which in turn open up more nuanced accounts of the outcomes of judicial review such that 'everyone can win'. Armed with this new way of ‘seeing’, the thesis finally identifies the practical lessons from the study for judicial review in the climate change landscape. It thus concludes by identifying six lessons for those involved in the litigation of climate change action, notably underlining the value of extrinsic victories and the nuances that can exist in argumentation, combined with the spaces that can be excavated in judicial review and the longer term battle versus war scenarios.

Name dc:type.qualificationname

PhD

Level dc:type.qualificationlevel

Doctoral

Grantor dc:publisher.institution

De Montfort University

Year dc:date.issued

2025

Author dc:creator

• Wincott, John

Licence

• https://dora.dmu.ac.uk/bitstreams/f64fec2d-b352-4037-9c4e-811ab672c1c2/download