Legal fears force energy policy re-consultation

DECC is to revise and re-consult on its energy national policy statements following warnings of legal challenge.

The energy and climate department (DECC) has confirmed it will re-consult on the controversial draft energy national policy statements (NPSs) released in November 2009.

The move follows concerns that the NPSs would not have been legally robust and could have been subject to legal challenge.

DECC confirmed the statements will now be revised and subject to a new consultation in the autumn. They are likely to be put to parliamentary vote next spring and could be designated shortly afterwards.

The energy NPSs cover overarching energy supply policy, nuclear power, renewable energy and fossil fuels (ENDS Report 418, pp 31-32). With the Infrastructure Planning Commission, they formed the centrepiece of Labour’s efforts to cut planning delays and deliver urgent, large-scale energy investment.

But the NPSs have proved controversial with environmental groups who had threatened legal action, several professional planning bodies and the Environment Agency. The Conservatives had committed to retain them and put them to a vote in parliament.

In coalition, the Liberal Democrats’ opposition, particularly to nuclear power, has complicated the nuclear NPS, though the party has undertaken to abstain rather than oppose it (ENDS Report 424, p 3).

Even so, the decision to submit the NPSs to a full re-consultation is unexpected. DECC’s key reason is that a number of serious concerns over application of appraisals of sustainability (AOSs), essentially a form of strategic environmental assessment, were raised in consultation. 

In a statement, energy minister Charles Hendry said: “We have decided to take a further look at the appraisal of sustainability of our draft energy policy statements to make sure that they are fit for purpose.”

Several bodies considered the AOSs as applied could breach the EU Strategic Environmental Assessment Directive, while environmental NGOs were considering joint legal action.

Mr Hendry said the key issue was the AOS covering the overarching energy NPS, but DECC told ENDS it had been legally advised the re-consultation would have to apply to all NPSs.

In its consultation response, the Environment Agency said that without a more strategic approach, with energy efficiency as a prerequisite, the energy NPS could lead to the UK breaching its carbon budgets under the Climate Change Act 2008.

It called for a tightening of the AOSs, including better monitoring, full carbon capture and storage for coal by the 2020s, and more emphasis on combined heat and power. In the nuclear NPS, it called for fuller assessment of waste management. 

Martin Baxter, executive policy director for the Institute of Environmental Management and Assessment (IEMA), welcomed the re-consultation: “IEMA highlighted significant flaws in the appraisal process, including a failure to properly assess demand management. There was a real risk that the NPSs could have been successfully challenged in the courts, delaying decisions on critical national energy infrastructure projects,” he said.

In its evidence to the House of Commons energy and climate change committee inquiry (ENDS Report 423, pp 57-59), IEMA stressed the AOS process in all the NPSs “is considered to carry risk related to compliance with the SEA Directive (2001/42/EC)”.

Simon Marsh, head of planning and regional policy at the RSPB welcomed the re-consultation so long as it went beyond the minimum to make the NPSs compliant. He added the nuclear NPS was flawed, but the main concern was over the overarching energy NPS.

The RSPB had been advised the AOSs were not an adequate substitute for SEAs required under the directive, he said, and did not take proper account of alternative policies.

He said the group has been considering launching a judicial review once the NPSs are designated by the secretary of state.

Despite the setback, energy minister Charles Hendry was keen to stress that “plans for the first new nuclear power station to begin generating electricity by 2018 remain on course”. DECC is shortly to issue its decision on the government’s justification for new nuclear power required by EU law (ENDS Report 416, pp 36-40). ENDS understands this is likely from September 2010. 

Meanwhile, French utility EDF Energy launched a pre-consultation on its proposed nuclear plant at Hinkley C on 9 July.

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