DECC launches redrafted energy national policy statements

The government’s energy national policy statements, aimed at helping speed up large-scale planning applications, have been relaunched after intense redrafting to avoid legal challenges.

The government’s suite of six energy national policy statements (NPS) (ENDS Report 418, pp 31-32 and pp 32-33), forming the core of a new streamlined planning system to speed up crucial infrastructure development, were finally relaunched by the energy and climate department (DECC) in redrafted form for a second consultation on 18 October.1

The launch followed a parliamentary statement by energy and climate secretary Chris Huhne stressing the urgent need for policy certainty to attract new investment.2

Each NPS was accompanied by an appraisal of sustainability (AOS), required under the Planning Act 2008, together with an overall draft monitoring strategy for all six. Both are required by the EU Strategic Environmental Assessment (SEA) Directive. The government’s response to the first NPS consultation was also published alongside.3

Legal threat

The move follows adverse comments from the consultation process and during parliamentary scrutiny by the Energy and Climate Change Committee (ENDS Report 423, pp 57-59). These raised fears that inadequacies in the transposition of the SEA directive through AOSs could have led to legal challenges (ENDS Report 426, p 46).

The energy NPSs are centred on an overarching energy NPS (EN-1), which describes the overall energy policy context and the need for new generation capacity. The NPSs cover fossil fuel, renewable energy (see p 42), nuclear power, gas and oil supply infrastructure and pipelines and electricity networks infrastructure.

The Infrastructure Planning Commission, which is to be replaced by a Major Infrastructure Planning Unit within the government’s Planning Inspectorate (ENDS Report 426, p 52), must consider these when deciding individual planning applications.

The NPSs are considered a crucial step towards creating conditions for large-scale, low-carbon energy investment of some £200bn over the next ten years, replacing a quarter of current electrical generation capacity as many coal-fired plants retire under the Large Combustion Plants Directive and ageing nuclear plants close.

Launching the NPSs, together with a justification decision in favour of new nuclear plants (see pp 42-43) and a controversial decision to reject calls for a public inquiry on new nuclear plants, Mr Huhne said: “I’m fed up with the stand-off between advocates of renewables and of nuclear which means we have neither. We urgently need investment in new and diverse energy sources to power the UK. We’ll need renewables, new nuclear, fossil fuels with CCS, and the cables to hook them all up to the Grid as a large slice of our current generating capacity shuts down.”

He stressed: “The market needs certainty to make this investment happen, and we are determined to clear every obstacle in the way of this programme.”

But a portfolio of technologies would be needed for energy security and the precise mix would be determined by the market, he added.

Public comment and parliamentary scrutiny of the NPSs was critical of the overarching energy and nuclear NPSs in particular. The most serious objection was that the overarching energy AOS did not give adequate consideration to alternatives to the programme proposed, risking infringement of the SEA Directive. There was no real consideration of higher energy efficiency as an alternative strategy. Crucially, cumulative impacts of plants on the UK’s binding carbon budgets were not addressed.

It was also unclear whether the “imperative reason of overriding public interest” criterion in habitat regulation assessments (HRAs), that would allow developments in sensitive habitats, had been approved at NPS level or whether it would apply to each project, or both. There was also criticism that higher level nuclear waste arisings from new plant would not be assessed by the IPC.

On AOSs and HRAs, the risk of legal challenge was most severe in the overarching and nuclear NPSs, but there have had to be minor changes to all of  them.

The real test of the new NPSs is whether they have been redrafted in line with good practice or merely aim to be legally compliant and achieve this minimal objective.

The overarching energy NPS and AOS now includes discussion of cumulative environmental impacts. The baseline for assessing NPS policy impacts is current environmental status, rather than the impact of implementing the same energy policies without an NPS.

And there is more on alternative scenarios aimed at achieving the same energy outcome. Broadly, alternatives include: a business-as-usual case for energy leading to higher emissions; a low-cost energy strategy, with a large role for gas and avoidance of costly mitigation measures such as carbon capture and storage; tighter local environmental restrictions on plant; and a low emissions strategy with more emphasis on renewable, nuclear and CCS. Overall, these are rejected, falling foul of either energy security concerns, emissions increases, or local planning impacts.

Energy efficiency is not considered as an alternative strategy in itself, and it says this is not a planning issue. But within the low-emissions alternative, DECC points to various measures in the pipeline including the green deal package on borrowing to improve household energy efficiency. It says that reductions in electricity demand will ultimately be insufficient as electrification of homes, transport and industry increases in the 2020s, and it points to supporting analysis in its 2050 pathways research (ENDS Report 427, pp 16-17).

But alternatives are only sketchy and there is little formal consideration of non-structural alternatives such as demand management.

Other changes to the NPSs include reference to the need to comply with an eventual emissions performance standard (see p 53) that would limit emissions intensity or hours of operation.

The nuclear NPS has been updated with new site assessments. Two Cumbrian greenfield sites, at Kirksanton and Braystones, have been dropped, leaving eight. The statement now clarifies that there is an imperative economic need for all these sites, not necessarily because all will host plants, but to ensure sufficient options remain for potential developers. And there is no requirement for the IPC to compare between listed sites in making a decision.

On higher level radioactive waste from new plants, including spent fuel rods, it stresses that the government has identified deep disposal as the long-term solution, in line with recommendations by the Committee on Radioactive Waste Management (ENDS Report 416, pp 36-40).

Disposal ‘no barrier’

The government’s response rejects the current lack of a final disposal site as a barrier to new plant and stresses that interim storage on-site will be safe. It accepts community concerns over prolonged on-site storage, but points out that the need for up to 160 years’ temporary storage is based on conservative assumptions and is likely to be substantially less. 

The nuclear NPS says the UK has “robust legislative and regulatory systems” for higher level waste management. Consequently, it says this should not be considered by the IPC except insofar as an associated waste facility is planned alongside a new plant. 

One of the most serious concerns raised by the energy and climate change committee was that the open-ended nature of the NPSs risked a possible breach of the UK’s legally binding carbon budgets under the Climate Change Act 2008 through the cumulative impact of emissions from new fossil plant, notably gas turbine.

But in its response to the consultation, DECC states: “The government does not believe that the IPC needs to take into account the potential contribution that a proposed new plant would make to meeting carbon budgets.”

It adds “this is a matter for wider government intervention in energy markets, not a planning issue”, and that its wider proposals including energy market reform and a forthcoming white paper on energy next spring will address these issues.

The government says it already reports annually on energy trends and that the advisory Committee on Climate Change tracks progress towards decarbonisation annually. It also adds consented plants may not all be built, making cumulative emissions projections difficult.

Most agree the new NPSs and AOSs are an improvement on the previous drafts, but NGOs that raised serious legal concerns last time round are underwhelmed.

Harry Huyton, head of climate change at RSPB told ENDS: “Compliance of the appraisals of the revised national policy statements with EU SEA legislation is questionable given the inconsistent and relatively superficial consideration of alternatives.”

Ivan Scrase, RSPB senior planning officer, also points out that while there is more on alternatives in the AOSs, these have been rejected within the document itself. This contradicts practical guidance to the SEA Directive issued in 2005 by the Office of the Deputy Prime Minister, which points out the SEA should be restricted to informing decision-makers on alternatives.

But there is some relief over clarification that while impacts on habitats from NPSs as a whole are justified by imperative economic need, habitat regulation assessments will still need to be carried out at individual plant level for the most protected Natura 2000 biodiversity sites.

Asked whether legal challenge could now be discounted, Mr Huhne told ENDS he considered a challenge unlikely, but could not rule it out. Energy and climate minister Charles Hendry added that he believed the documents were now “as robust as possible”, and that it was in everyone’s interests to proceed quickly.

The consultation on the revised NPSs closes on 24 January, 2011. If all goes well, the finalised NPSs will then be presented to Parliament for ratification in spring 2011.