R (Friends of the Earth Ltd and Another) v Secretary of State for the Environment Food and Rural Affairs and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 15 November 2001 |
| Neutral Citation | [2001] EWHC 914 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 November 2001 |
| Docket Number | Case No: 4012/2001 |
[2001] EWHC 914 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Hon Mr Justice Collins
Case No: 4012/2001
Lord Lester of Herne Hill Q.C., Michael Fordham & Ben Jaffey (instructed by Greenpeace & Friends of the Earth for the Claimants)
Philip Sales & Paul Nicholls (instructed by Solicitors Department for Environment Foods & Rural Affairs & Department of Health for theDefendants)
David Pannick Q.C., Alan Griffiths & Dinah Rose (instructed by Freshfields Bruckhaus Deringer for British Nuclear Fuels Ltd)
The challenge in this case is to the decision of the Secretaries of State dated 3 October 2001 that the proposed manufacture of MOX at Sellafield by British Nuclear Fuels Plc (BNFL) is justified in accordance with the relevant European Directive. On 17 October Ouseley, J directed that the application for permission should be adjourned to an oral hearing on notice and that the substantive hearing should follow if permission were granted. He ordered the service of evidence within 14 days. The application came before me on 8 November 200I decided that permission should be granted to claim judicial review and, with the concurrence of counsel, directed that all procedural steps should be waived or abridged so that the hearing before me was treated as the hearing of the substantive claim. The need for speed is because BNFL intended (if possible) to take what have been described as “irreversible implementation steps” on 20 December 2001.
Most fuel for nuclear reactors is made from enriched uranium oxide. Some of the uranium is during the process converted into plutonium. In addition, waste products are generated. The waste products in time make the fuel less efficient and so it is sent for reprocessing in the course of which the waste products are removed and the plutonium is reclaimed. It then has to be stored or recycled. The reprocessing is carried on at Sellafield in the Thermal Reprocessing Plant (THORP) and the plutonium, which belongs to whichever customer has sent the fuel for reprocessing, has either to be stored or returned to the customer.
It has been known for some time that nuclear reactors can operate efficiently using a fuel called MOX, which is a mixture of plutonium oxide and uranium oxide. The manufacture of MOX enables the reclaimed plutonium to be recycled. This has the advantage of reducing the amount of stored plutonium and saving the use of fresh uranium so that the environmental hazards of mining new uranium can be reduced. In addition, it avoids the need to transport the plutonium back to the customers or for reprocessing in a third country. MOX fuel in the form of what are known as ceramic pellets is said to be less attractive to terrorists and safer than plutonium (which is transported in the form of plutonium oxide powder).
Between 1994 and 1996 BNFL constructed a mixed oxide fuel plant at Sellafield to enable it to manufacture MOX fuel. The plant is known as SMP. In November 1996, it applied to the Environment Agency ( EA) for variations to the gaseous and liquid discharge authorisations. EA asked BNFL to provide information specifically relating to the SMP and began a process of consultation to decide whether the manufacture of MOX was justified. On 3 November 1998 EA published its proposed decision which was that the operation of the SMP to produce MOX fuel was justified, but it referred the matter to the then responsible Secretaries of State. It stated in Paragraph 3.3 of the proposed decision:-
“In reaching its proposed decision, the [EA] has not taken any view on the wider policy issues of plutonium management strategy. The [EA] is concerned about these wider policy issues and considers that major developments at Sellafield are national and international matters and that, given the significant political and economic issues, relevant government departments should be involved in considering the [EA's] proposed decision”.
It is to be noted in the light of the ground of challenge to the lawfulness of the Secretaries of State's ultimate decision that the EA stated in Paragraph 1.7:-
“The [EA] received the application from BNFL in November 1996, when construction of the MOX plant was virtually completed and after the capital cost (£300 million) had been incurred. It is unsatisfactory that the [EA] has no powers under the Radioactive Substances Act 1993 to require an application to be submitted for a new plant prior to its construction. The time at which an application is received is crucial to the [EA's] involvement in the regulation of new plant. The [EA] is dissatisfied that it was unable to consider the full economic case for the MOX plant. It is seeking a change in the legislation to prevent a similar situation occurring in future.”
The concern was that the construction costs had to be disregarded in accordance with standard economic practice in assessing the economic case for SMP because by the time the application was made those costs had been incurred and so were what are known as “sunk costs”. It is this disregard which has been said to be unlawful and so to vitiate the decision under attack.
On 11 June 1999 the Secretaries of State then responsible indicated a provisional conclusion in favour of justification of the full operation of SMP but concluded that they needed further consultations on the economic case for it. At the same time, they decided that uranium commissioning could go ahead but without prejudice to the ultimate decision on the justification for SMP. If that decision was unfavourable, BNFL would have to bear the costs of decommissioning. As a result, further consultations took place, the claimants each being at all material times consulted. In the Spring of 2001 the Secretaries of State decided to instruct independent analysts to evaluate BNFL's updated economic case and A. D. Little (ADL) were accordingly instructed in April 2001. ADL reported in July and on 27 July 2001 a suitably redacted version of their report was published. Friends of the Earth responded in August and on 3 October 2001 the decision now under attack was made by the Secretaries of State. This claim was lodged on 5 October 2001.
The duty to justify the manufacture of MOX fuel arises under the relevant Council Directive which is 96/29/EURATOM of 13 May 1996. That Directive came into force on 13 May 2000 and governs the decision made by the Secretaries of State. However, when EA made its report in November 1998, the governing Directive was in a somewhat different form and so the relevant considerations were not identical. This is of importance to the way in which BNFL and the Secretaries of State put their case since the previous Directive required that a site specific practice be justified whereas the present directive requires justification of a generic type or class of practice. The claimants say that this makes no difference in the circumstances of this case since the practice has to be carried out at Sellafield, there being no other site or potential operators, and so the question of economic justification inevitably and rightly focused on SMP.
The Radioactive Substances Act 1993 contains no requirement for justification, but, on the principle set out by the E.C.J. in Marleasing .SA v La Comaercial Internacional de Alimentacion SA [1990] ECR 1 —4135 a Member State is obliged if possible to apply its legislation in conformity with a relevant Directive. This may mean reading words into legislation or applying it through conforming Administrative action. So it was that in R v Secretary of State for the Environment and others Ex parte Greenpeace Ltd. [1994] 4 All W.L.R. 352 Potts, J decided there was a legal obligation to justify any activity resulting in exposure to ionising radiation in accordance with the then operative Directive, namely Euratom 80/836. That case involved a challenge to the decision of the Secretary of State and the relevant Minister to authorise the operation of THORP. As it happens, I, as counsel, represented Greenpeace Ltd in that case. Accordingly, the parties were all told that I would only deal with the present case if everyone agreed that I could. That agreement was forthcoming.
The material provisions of Directive 80/836 were Articles 6(a) and 13.
“6(a) read:-
The limitation of individual and collective doses resulting from controllable exposures shall be based on the following general principles: (a) the various types of activity resulting in an exposure to ionising radiation shall have been justified in advance by the advantages they produce …”
Article 13 provided:-
“1. Each Member State shall ensure that the contribution to the exposure of the population as a whole from each activity is kept to the minimum amount necessitated by that activity, taking account of the principles set out in Article 6(a) and (b).
2. The total of all such contributions shall be kept under review …”
These provisions led Potts J to conclude (at p.368b) that a combination of the Directive and ICRP 60 (to which I will refer shortly) were concerned with justification of particular practices which affected particular individuals in particular circumstances, the type of activity in that case being thermal oxide reprocessing at Sellafield.
The principle of justification stems from the system of radiological protection recommended by the International Commission on Radiological Protection ICRP). Paragraph 112(a) of Publication 60 reads:-
“No practice...
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