R ClientEarth v Secretary of State for Business, Energy and Industrial Strategy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 22 May 2020 |
| Neutral Citation | [2020] EWHC 1303 (Admin) |
| Date | 22 May 2020 |
| Docket Number | Case No: CO/4498/2019 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2020] EWHC 1303 (Admin)
THE HON. Mr Justice Holgate
Case No: CO/4498/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Gregory Jones QC and Ms Merrow Golden (instructed by ClientEarth) for the Claimant
Mr Andrew Tait QC and Mr Ned Westaway (instructed by Government Legal Department) for the Defendant
Mr James Strachan QC and Mr Mark Westmoreland Smith (instructed by Pinsent Masons LLP) for the Interested Party
Hearing dates: 28 th – 30 th April 2020
Approved Judgment
Introduction
The Claimant, ClientEarth, applies under s. 118 of the Planning Act 2008 (“PA 2008”) for judicial review of the decision by the Defendant, the Secretary of State for Business, Energy and Industrial Strategy, on 4 October 2019 to grant the application made by Drax Power Limited (“Drax”) for a development consent order (“DCO”) for a “nationally significant infrastructure project” (“NSIP”): the construction and operation of two gas-fired generating units situated at the existing Drax Power Station near Selby in North Yorkshire (“the development”). The Order made by the Secretary of State is The Drax Power (Generating Stations) Order 2019 (SI 2019 No. 1315) (“the Order”).
The Claimant is an environmental law charity. Its charitable objects include the enhancement, restoration, conservation and protection of the environment, including the protection of human health, for the public benefit.
This challenge raises important issues on (a) the interpretation of the Overarching National Policy Statement for Energy (“EN-1”) and the National Policy Statement for Fossil Fuel Electricity Generating Infrastructure (“EN-2”), both of which applied to the proposal, and (b) their legal effect in the determination of the application for a DCO, particularly as regards the need for the development and greenhouse gas emissions (“GHG”). These National Policy Statements (“NPSs”) were designated in July 2011.
The proposal by Drax gave rise to a number of controversial issues which were considered during the examination of the application. Some of those issues are raised in grounds of challenge in these proceedings. It is important to emphasise at the outset that it is not for the court to consider the merits of the proposed development or of the objections made to it. It is only concerned with whether an error of law was made in the decision or in the process leading up to it.
On 29 May 2018 Drax made its application under s. 37 of PA 2008 for the Order. On 26 June 2018 the Secretary of State accepted the application under s. 55. On 16 July 2018 a panel comprising two members was appointed to be the examining authority (the “ExA” or “Panel”). Their responsibility was to conduct the examination of the application and to report on it to the Secretary of State with conclusions and a recommendation as to how it should be determined (under chapters 2 and 4 of Part 6 of PA 2008). The examination began on 4 October 2018 and was completed on 4 April 2019.
The Panel produced their report dated 4 July 2019. They recommended that consent for the development be withheld. The Secretary of State disagreed with that recommendation and on 4 October 2019 decided to make the Order (with minor modifications). The decision was taken by the Minister of State acting on behalf of the Defendant.
The development
The development involves the construction of two gas-fired units (units X and Y) utilising some of the existing infrastructure of two coal-fired units currently in operation at the site (units 5 and 6 with a total output of 1320 MW), which are due to be decommissioned in 2022. Each unit would comprise combined cycle gas turbine (“CCGT”) and open cycle gas turbine (“OCGT”) technology, with a capacity of up to 1,800 MW. Each unit would also have battery storage of up to 100 MW, giving the development an overall capacity of up to 3,800 MW.
The development also includes switchgear buildings, a natural gas reception facility, an above ground gas installation, an underground gas pipeline, underground electrical connections, temporary construction areas, a reserve space for Carbon Capture Storage (“CCS”), landscaping and biodiversity measures, demolition and construction of sludge lagoons, removal of an existing 132 kV overhead line, pylons and further associated development. The development would also involve a 3 km gas pipeline connecting to the National Grid Feeder lying to the east of the site.
The construction of Unit X was expected to begin in 2019/2020 and be completed by 2022/2023. If Unit Y were to be built, the construction was expected to start in 2024 and be completed by 2027. The development is designed to operate for up to 25 years, after which Drax has stated that it would review the development's continued operation. The Order does not contain any condition restricting the period for which the facility may be operated.
Need for the development
The Claimant participated in the examination, by attending hearings and submitting a number of written representations. The Claimant objected to the development on the grounds that its adverse impacts outweighed its benefits, both as assessed under the NPSs and through the application of the balancing exercise required by s 104(7) of PA 2008 (see below). The Claimant's position was that there was no need for the proposed development and that it would have significant adverse environmental impacts, particularly in respect of likely GHG emissions, the risk of “carbon lock-in” and impact on climate change.
Drax's position throughout the examination was that the need for the development, being a type of generating station identified in Part 3 of NPS EN-1, was established through that NPS and that substantial weight should be attributed to the contribution the development would make to meeting the needs for additional energy capacity (both security of supply and to assist in the transition to a low carbon economy). Drax contended that the substantial weight attributable to the development's actual contribution to meeting needs identified in EN-1 was not outweighed by the adverse impacts of the development.
Climate change and GHG emissions
The Environmental Statement (“ES”) submitted with the application contained an assessment of the likely significant effects of the development upon climate change. It estimated that the development would cause GHG emissions to increase from 188,323, 000 tC02e to 287,568, 000 tC02e over the period 2020 to 2050 against the baseline position, a 90% net increase. But at the same time, there would be an increase in the maximum generating capacity from 1320 MW to 3600 MW for the development (excluding the battery storage capability), representing an increase of 173% in the maximum electricity generating capacity.
Relating the emissions produced to the generating capacity, the ES assessed that the GHG emissions intensity for the existing coal fired units would be 840 gC02e/kWh in the period 2020 to 2025 and fall to 450 gC02e/kWh in the period 2026 to 2050 in the baseline scenario. For the development, the figure would be 380 gC02e/kWh, representing a 55% reduction in GHG intensity for the period 2023 to 2025 and a 16% reduction in the period 2026 to 2050.
According to the Claimant's assessment, the development would result in a 443% increase in emissions intensity (using an average baseline emissions intensity of 70 gC02e/kWh) and a 488% increase in total GHG emissions.
There was no disagreement as to the possible extent of future emissions from the proposed development; the disagreement was over the baseline against which they should be assessed and thus the likely net effect of the development. It was common ground between the parties during the examination that an increase in total GHG emissions of 90% represented a significant adverse effect.
An overview of the conclusions of the Panel and the Secretary of State
The Panel concluded that “a reasonable baseline was likely to be somewhere in between” the figures assessed by Drax and by the Claimant and so the increase in GHG emissions was likely to be higher than had been estimated by Drax (paras. 5.3.22 and 5.3.27–5.3.28).
The Panel concluded that whilst the NPSs supported a need for additional energy infrastructure in general, Drax had not demonstrated that the development itself met an identified need for gas generation capacity when assessed against EN-1's overarching policy objectives of security of supply, affordability and decarbonisation. It found that the development would not accord with the Energy NPSs and that it would undermine the Government's commitment to cut GHG emissions, as set out in the Climate Change Act2008 (“CCA2008”) (paras. 5.2.4, 5.3.27, 7.2.7, 7.2.10, and 11.1.2)
Applying the balancing exercise in s. 104(7) of the PA 2008, the Panel concluded that the adverse impacts of the development outweighed the benefits, the case for development consent had not been made out and so consent should be withheld (section 7.3).
The Secretary of State disagreed with the Panel's recommendation and decided that the Order should be made, concluding at DL 7.1 that “there is a compelling case for granting consent for the development” and that:-
“… The Secretary of State considers that the Development would be in accordance with the relevant NPSs and,...
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