Government threatened with legal action over approval of Drax carbon capture plans

An anti-biofuel campaign group has threatened legal action against the government decision to approve the installation of carbon capture technology at Drax Power Limited’s Yorkshire power plant.

Last month, the energy secretary, Claire Coutinho approved the installation plans, which are set to see the company develop the world’s largest bioenergy with carbon capture and storage (BECCS) project.

Coutinho did so in the face of concerns about the impact the project could have on air pollution and protected species, and wider anxiety about the climate impact of Drax’s reliance on burning imported wood pellets to generate electricity.

In the development consent order (DCO) decision document, Coutinho concluded that when the Energy Security Strategy and the government’s duty to achieve net zero by 2050 were taken into account, the public benefits associated with the proposed development “outweigh the harm identified”.

According to the company’s plans, the £2 billion project will see carbon capture technology installed at two of the four biomass units at Drax’s power station site near Selby, North Yorkshire. It is intended to remove up to eight million tonnes of carbon dioxide (CO2) per year, or 95% of the CO2 that is currently emitted by the same units.

After the CO2 is removed it is set to be transported for permanent storage under the North Sea via a pipeline. The BECCS proposal includes the construction and operation of the carbon capture technology and associated equipment, and the integration of the units into the existing power station.  

MORE: Why is the government ‘banking on biomass?’

However, Biofuelwatch UK, which campaigns against the burning of biomass, announced today that it has sent a letter before claim - which is sent to a potential defendant ahead of any formal legal challenge - to Coutinho arguing that the decision was “unlawful”.

The group said that in its letter, it states that it is believed that unabated biomass burning “would be economically unviable beyond 2027, meaning emissions from its continued use were additional and should have been assessed”.

The group continued: “Biofuelwatch made detailed submissions to the Examining Authority (ExA) during its examination of Drax’s application for the carbon capture installation. However, the ExA accepted an Environmental Statement prepared by Drax, which Biofuelwatch UK says did not meet the requirements of the Infrastructure Planning  (Environmental Impact Assessment) Regulations 2017. For example, it failed to assess the significant greenhouse gas (GHG) impacts of the proposed development and the combined environmental impacts of the proposed development.

“The secretary of state accepted the ExA’s conclusion that the GHG emissions from the combustion of biomass at the Drax power plant should be zero rated, i.e. treated as producing no GHG emissions from combustion, despite the obvious and indisputable fact that the combustion of biomass releases huge quantities of GHG emissions.”

Biofuelwatch UK said that any captured carbon at the plant “would be subtracted from a baseline of zero combustion emissions, purporting to give a net reduction in emissions of 7,975,620 tCO2e per annum”, which the group argues is “a dangerous assumption to make when we are at a tipping point in the climate crisis”.

The group also argues that the carbon capture installation “fails to address both the storage of captured carbon and the transport of it from the Drax power plant to the storage site”, with the development consent application for the transport and storage parts of the project being made separately, it said.

Robert Palgrave, a member of Biofuelwatch UK, said that Drax's plan to develop carbon capture for its biomass power station “will perpetuate decades more mass-burning of trees”.

He continued: “Far from slowing climate change, Drax BECCS will do the opposite, and it will continue to damage forests and biodiversity in the countries supplying Drax's woodfuel. At the heart of our challenge is a fundamental point - that carbon emissions from burning wood impact the climate with immediate effect, just like those from coal or gas. They must no longer be discounted when planning decisions are made. 

“In granting development consent for Drax BECCS, Claire Coutinho ignored the self-evident fact that burning wood produces carbon emissions, hiding behind an obscure accounting convention that says such emissions can be zero-rated in national greenhouse gas inventories."

Leigh Day solicitor Rowan Smith, who represents Biofuelwatch UK, said: “The government claims that it can ignore greenhouse gas emissions from the operation of Drax simply because an entirely separate regime says those emissions are reported in the country from where the biomass is imported.”

Biofuelwatch’s arguments “seek to expose that legal fiction,” he said, adding that they “also highlight inconsistencies between the government relying on the full benefits of carbon capture storage, but not assessing the full environment[al] harms”.

The campaign group has specified three ways in which it states the secretary of state breached EIA regulations when approving Drax’s carbon capture installation plans. 

Firstly, it argues that there was “a failure to assess the significant GHG impacts of the proposed project lawfully, by irrationally deciding that it would lead to a net reduction in GHG emissions by zero rating the combustion emissions, in breach of reg 21 of the 2017 regulations”.

Secondly, the group says there was “a failure to account for the GHG emissions from the combustion of biomass at the units to be fitted with carbon capture technology”, adding that Coutinho “wrongly decided that the combustion emissions were not an effect of the project that needed to be assessed in their own right.”

Thirdly, Biofuelwatch states that there was “a failure to consider the combined environmental impacts of the proposed project with the additional works to construct and operate transport and storage facilities for the captured carbon”. 

The Department for Energy Security and Net Zero confirmed it had received the letter, but said it would not be appropriate to make a comment.

A Drax spokesperson said: “Drax welcomed the secretary of state’s decision to grant planning consent for our BECCS project at Drax Power Station. This project will enable Drax Power Station to be a long-term source of energy security, as well as creating thousands of jobs in the Humber during the project’s construction. It will also be essential in ensuring that the UK can deliver on its 2050 Net Zero commitment.

“Any legal challenge of the secretary of state’s decision would be a matter for government. We remain confident in the development timeline for the project.”

This piece was updated with Drax and the government's responses