Radioactive releases and Community law

Although Greenpeace and Lancashire County Council failed in their recent legal challenge concerning the THORP nuclear fuel reprocessing plant at Sellafield, the ruling of the High Court raises substantive issues of law which are likely to have longer term repercussions on the way in which nuclear decisions are handled in the future.

The judgement of Mr Justice Potts in R v Secretary of State for the Environment and others ex parte Greenpeace and Lancashire County Council (High Court, 4 March) runs to nearly 80 pages, and encompasses complex questions of both EC and administrative law.

The case centred on a challenge to a radioactive waste disposal authorisation granted last December by the Environment Secretary, the Minister of Agriculture, Fisheries and Food ("the Ministers") and HM Inspectorate of Pollution (HMIP) to British Nuclear Fuels (BNFL). The authorisation was essential to allow the start-up of BNFL's new thermal oxide reprocessing plant.

Earlier last year, there had been a series of legal applications by Greenpeace to challenge an initial authorisation necessary for commissioning to begin at THORP. The group lost that case (ENDS Report 225, pp 42-43 ) but, against strong opposition from BNFL, established that it had sufficient standing to bring the action before the courts.

The initial ground of challenge concerned the factors that the authorising bodies were legally bound to consider before reaching a decision. An application for the discharge authorisation had been made in April 1992, and HMIP had prepared draft authorisations. During a ten-week period of consultation some 84,000 representations were made, but HMIP eventually reported to the Ministers that the draft authorisations would provide effective protection for human health, the food chain and the environment generally.

But HMIP also pointed out that wider policy issues had been raised during the consultation, including the justification for THORP, which it considered to be outside its remit. In June 1993, the Ministers initiated a further round of public consultation to allow these wider issues to be considered, but made it clear that they did not feel these were strictly relevant within the terms of national law.

Greenpeace and Lancashire County Council challenged this legal interpretation. The relevant national legislation is the Radioactive Substances Act 1993, which replaced the 1960 Act of the same title. The provisions deal with procedural requirements, but are effectively silent as to the scope of legal considerations relevant to authorisation decisions.

In 1982, the Department of the Environment had issued a guide to the 1960 Act which laid down basic policy objectives of radioactive waste management, including the critical requirement that all practices giving rise to radioactive waste must be justified. But Mr Justice Potts ruled that in itself the guide could not be used to require that justification had to be considered as a matter of law: "Primary legislation is not to be construed by reference to general policy statements or departmental guidance."

The applicants' main argument, however, turned on the Government's obligation to construe national law in a manner consistent with European Community law. In 1980, a Directive under the Euratom Treaty had been adopted, establishing basic standards for human health protection against radiation. The Directive, which was amended in 1984, established general principles governing the exposure of both workers and the general public, including the requirement that "the various types of activity resulting in exposure to ionizing radiation shall have been justified in advance by the advantages which they produce."

Following the 1990 Marleasing decision of the European Court of Justice, the High Court accepted that national legislation had to be interpreted consistently with the requirements of Community law, allowing words to be read into a statute when it was silent, though not going so far as to distort the plain meaning of the legislation.

Although Mr Justice Potts accepted that there were some difficulties in interpreting various provisions of the Euratom Directive, he concluded that the concept of justification related to particular practices which affect individuals; in this case this involved the operation of THORP. He rejected the argument that the original Windscale planning inquiry in 1977 concerning the plant had performed this exercise: "There has been no justification of this activity involving the decision-making being satisfied that the benefits flowing from the activity outweigh the detriment."

He then went on to hold that the 1993 Act both could and should be interpreted so as to require justification in the sense of the Euratom Directive to be considered in advance of an authorisation. In this respect, the Ministers had erred in law in concluding that they were not legally required to have regard to justification.

This ruling, though, was not sufficient to ensure that the decision was quashed. Mr Justice Potts held that the Court still has a discretion to refuse relief if it considered that the Ministers had in fact taken on board the wider considerations. He reviewed at length the factors they had considered following their wider consultation, and decided that they had in fact carried out a careful process of weighing the benefits against the detriments which could not reasonably be challenged.

The applicants then challenged the procedures adopted during the consultation process. The 1993 Act gives the Secretary of State a discretion to hold a public inquiry, and the applicants argued that in this case he should have exercised this discretion. This was always likely to be the most difficult of their arguments to sustain, and Mr Justice Potts stressed that in this context the Court could not substitute its own judgement for the discretion entrusted to the Secretary of State.

It had to restrict its approach to asking whether the discretion had been abused in the sense that a reasonable decision-maker could not have reached the decision he did: "Provided the Secretary of State applied his mind genuinely and rationally to the issue of whether or not to hold a public inquiry, his decision cannot be impugned."

In reviewing the Ministers' decision letter, Mr Justice Potts concluded that all the issues relevant to the decision concerning a public inquiry had been properly addressed. He accepted the strength of the argument that scientific and economic issues ought to be considered and tested in public, and went on to observe that "it may be thought that a Minister sensible to the scale of representations...and the desirability of allaying public anxiety would have directed an inquiry", but held that this was not a matter for the courts.

The applicants had also argued that the 1985 EC Directive on environmental assessment applied to the decision to authorise the discharge. It was accepted that the Directive applied to "projects", which included under Annex II of the Directive installations for nuclear fuel reprocessing, but the applicants argued that two separate projects were involved here - the construction of THORP, and the operation of the processes within THORP which gave rise to radioactive releases.

However, Mr Justice Potts rejected this interpretation, holding that the Directive applies to the decision entitling the developer to proceed with the project, which in this context meant the planning permission granted following the Windscale inquiry. "It is a distortion of language to regard the authorisation of emissions as such a decision."

The High Court's reluctance to overturn the decision not to hold a public inquiry was to be expected, given prevailing principles of British administrative law. The language of the judgement, though, can be read to suggest that given the scale of representations and the complexity of the arguments it might have been politically more sound to have done so, and it may be that the Court's refusal to award costs against Greenpeace reflected a veiled criticism in this respect.

On the other hand, the Court's interpretation concerning the 1993 Act clearly has longer term ramifications concerning nuclear-related decisions. In the immediate future, it implies that decisions concerning discharge authorisations for the new Sizewell B nuclear power station will now legally have to take on board the wider consideration of justification as elaborated by Mr Justice Potts, and that these must relate to the nuclear facility itself. And once again, the decision underlines the ever-growing significance of Community law and the sometimes surprising manner in which it interacts with national legislation.

Richard Macrory, Denton Hall Professor of Environmental Law, Imperial College.

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