Environmental Law News Update

February 5, 2021

In this latest Environmental Law News Update, Charles Morgan, Noémi Byrd and Mark Davies consider a recent case involving the application of Energy National Policy Statements to nationally significant infrastructure projects, developments on legislation to curb sewage overflows and further delays for the Environment Bill.

Who’s counting? 

The winter of 2020-21 has seen the revitalisation of government climate policy in the so-called “race to net zero”: first the long-awaited Energy White Paper and the updated Oil and Gas Authority Strategy, with further policies expected before the end of the first quarter. Glasgow is to host COP26 in the autumn. Against that forward-looking context, the judgment of the Court of Appeal in R (Client Earth) v Secretary of State for BEIS [2021] EWCA Civ 43 is a timely reminder that Energy National Policy Statements (“ENPS”) EN-1 and EN-2, designated in 2011 under the Planning Act 2008, pre-dating ratification of the Paris Agreement and the statutory net zero target, are still very much in play. The ENPSs apply principally to nationally significant infrastructure (“NSIP”), and emphasise the “need” for continuing fossil fuel energy generation to support the transition to a low carbon economy, to make up for intermittent power from renewable sources.

The judgment confirms that a project’s actual contribution to this established need is not required to be quantitatively assessed. Nor is a proposal’s potential impact on the statutory carbon budgets a matter for the decision-maker. That impact has been taken into account at a strategic level, and is ‘baked in’ to the policy. Notwithstanding the anticipated review of the ENPSs by the end of 2021 (the government’s failure to review was challenged in different proceedings), the Energy White Paper makes it clear the government considers that need for the broad mix of energy infrastructure in the current policies – excluding coal-fired power – will continue. It would be surprising if the ENPSs were radically altered insofar as they set out the approach to assessing need and impact on carbon budgets.

The NSIP in question, two gas-fired units at Drax power station in North Yorkshire, would if operational have the biggest generating capacity in Europe (it is said), over a period of 25 years. The Examining Authority (“ExA”) recommended refusal, partly on the basis that consent would undermine the government’s commitments under the Climate Change Act 2008.

The Secretary of State took the view that the ExA was wrong to conduct an assessment of the need for this particular development, as distinct from the general need for energy NSIPs established by EN-1 (which should be given significant weight) and also wrong to take into account evidence of changes in energy generation since designation of the policy in 2011. While the significant adverse impact of the proposed development on GHG emissions was “acknowledged”, EN-1 makes it clear that this should not displace the presumption in favour of granting consent. Material changes in climate law and policy since 2011 do not change that policy presumption. The Secretary of State decided, and the Court of Appeal agreed, that the UK’s GHG emissions reduction targets have already been taken into account in preparing EN-1 (in 2011), and that further quantitative assessment or reference to current projections of need is unnecessary.

The Court found that the absence of any quantitative definition of need in the policy is “striking”, “deliberate” and “explicit”. Other, non-planning and market-based mechanisms exist to influence the delivery of energy NSIPs. It followed that proposals are to be assessed on the basis that need has been demonstrated and is as described in the text of the policy itself. Consequently, Client Earth was wrong to argue that “quantitative” assessment of need, necessarily influenced by current evidence, is always required. However, the Court of Appeal left the door ajar on this issue: the policy does not compel a quantitative assessment, but there may be some circumstances in which it is appropriate. Still, it is hard to envisage the circumstances in which an ExA would invite a quantitative assessment knowing that the Secretary of State may lawfully give it no weight.

The Court further held that GHG emissions alone are not always an “automatic and insuperable obstacle” to consent –  but that they might be. The Court diverged at this point from Holgate J at first instance, who had found that GHGs were not capable of being a freestanding reason for refusal. Again, the door is left ajar: in some circumstances, GHG emissions could be “significant or even decisive”.

As the policies stand (and as they seem likely to remain) the net zero target duty and the carbon budgets in the Climate Change Act 2008 have little to no impact on NSIP decisions which are likely to bear on whether those targets will be met. That might well be a gauntlet for a public interest claimant to take up, if the right argument can be found.

Wishin’ and a-hopin’

We have already commented on the Sewage (Inland Waters) Bill being promoted by the Rt Hon Philip Dunne MP. Like so many other measures, it has at least temporarily foundered on the rocks of the pandemic. Its second reading, due on 22 January, has been indefinitely deferred despite it having gained considerable cross-party support from 106 MPs.  In the same week, Defra announced that the Storm Overflows Taskforce, a joint industry-government group created in August 2020, has agreed a new objective to prevent damage from storm overflows.

Sewerage undertakers have agreed to provide all-year-round real-time data on CSO discharges into bathing waters, to accelerate the installation of monitoring devices generally and to publish annually the data obtained, to be complied by the Environment Agency. Defra also states that “The Government has committed to continuing to work with Mr. Dunne on the best way to make progress in reducing the harm caused by sewage spilling into our rivers.” Whilst unfortunately the use of the expression “committed to” by any organisation, particularly in the public sector, is almost invariably the immediate prelude to the identification of its area of greatest weakness rather than strength and generally constitutes no more than an acknowledgement of the chronic nature of that weakness, we must take such comfort as we can and trust in the sincerity of the statement.

The cynic might say that given that several adverse decisions of the CJEU did not promote a UK solution, the disappearance of the supervisory jurisdiction of the Commission and the faltering progress of both Mr. Dunne’s Bill and the new Environment Bill do not augur well for the effectiveness of this new, voluntary initiative.

Defra’s acknowledgement in its press release that “water infrastructure has not kept pace with development growth over decades”, is perhaps itself a small step forward. Not sure that it would ever had said that whilst the Commission was still looking over its shoulder. Whether these words will translate into action remains to be seen.

Water UK (the undertakers’ representative body) is a constituent member of the Taskforce. Its response has avoided the pitfall of the use of the expression “committed to”. It tells us instead that its members are “passionate about protecting and enhancing our nation’s rivers”. Phew, thank goodness for that. Now all we need is for next year’s Miss World to tell us that her ambition is to make all our rivers clean again and it’s all sorted.

The Environment Bill has been delayed (again)

Continuing on a theme this week, more news of delay to the hugely important Environment Bill. Originally introduced in July 2018 by then Prime Minister Theresa May, it first entered Parliament under Boris Johnson in October 2019. Since then it has been plagued by a series of unfortunate events: a general election, wrangling over Brexit and, of course, Covid-19. It will not be returning until the next Parliamentary session.

The delay is frustrating. The Environment Bill was supposed to introduce those measures required to fill the gap at the end of the transition period, including, of course, the Office for Environmental Protection. No Bill, no OEP, less protection for the environment (both here and abroad) post-Brexit.

Given that the Government has been publicly criticised (indeed by high-profile sources as wide-ranging as the Committee on Climate Change and former global warming researchers from Nasa) for its decision not to intervene in the grant of permission by Cumbria County Council for a new deep coking coal mine, one might have expected some progress of the Bill to mitigate that criticism. Not so.

The failure of the Environment Bill to proceed is all the stranger given the emphasis being placed on the importance of the COP26 in Glasgow later this year. Whilst the UK’s goals on climate change are distinct from the Environment Bill, the commitments on the former might be viewed as somewhat hollow against the failure to progress the former.

One has to hope that as the vaccination programme takes effect, the controlling minds of Government will be able to refocus efforts onto the Environment Bill.

To keep up-to-date follow us on Twitter @6pumpcourt or click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk