R (Greenpeace Ltd) v Secretary of State for Trade and Industry
Jurisdiction | England & Wales |
Judge | Mr JUSTICE SULLIVAN |
Judgment Date | 16 February 2007 |
Neutral Citation | [2007] EWHC 311 (Admin) |
Docket Number | CO/8197/2006 |
Court | Queen's Bench Division (Administrative Court) |
Date | 16 February 2007 |
[2007] EWHC 311 (Admin)
Mr Justice Sullivan
CO/8197/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR NIGEL PLEMING QC and MS KASSIE SMITH ( MISS JUSTINE THORNTON appeared in place of Ms Smith for the purposes of judgment only) (instructed by Messrs Harrison Grant) appeared on behalf of the Claimant
MR RICHARD DRABBLE QC and MR DAVID FORSDICK (instructed by Treasury Solicitor) appeared on behalf of the Defendant
( As approved by the Court )
Introduction
In this application for judicial review the claimant applies for a quashing order in respect of the defendant's decision, announced in "The Energy Challenge Energy Review Report 2006" to support nuclear new build as part of the United Kingdom's future electricity generating mix. The quashing order is sought on the ground that the consultation process leading to the decision was procedurally flawed and that therefore the decision was unlawful.
The evolution of energy policy
There are very many, often very lengthy, documents and what follows is, necessarily, the briefest summary. The story begins in June 2001 when the Prime Minister asked the Performance and Innovation Unit ("the PIU") at No. 10 Downing Street to review the strategic issues surrounding energy policy and to report to the Government. In February 2002 the PIU published "The Energy Review". Nuclear power was considered in some detail (see paragraphs 6.46-6.55 and 7.70-7.82). Under the sub-heading "Measures are needed to keep the nuclear option open …" the Executive Summary to the document said:
"Nuclear power offers a zero carbon source of electricity on a scale, which, for each plant, is larger than that of any other option. If existing approaches both to low carbon electricity generation and energy security prove difficult to pursue cheaply, then the case for using nuclear would be strengthened.
Nuclear power seems likely to remain more expensive than fossil fuelled generation, though current development work could produce a new generation of reactors in 15-20 years that are more competitive than those available today. Because nuclear is a mature technology within a well established global industry, there is no current case for further government support. …
The main focus of public concern about nuclear power is on the unsolved problem of long-term nuclear waste disposal, coupled about perceptions about the vulnerability of nuclear power plants to accidents and attack. Any move by government to advance the use of nuclear power as a means of providing a low carbon and indigenous source of electricity would need to carry widespread public acceptance, which would be more likely if progress could be made in dealing with the problem of waste."
In May 2002 the Government published "Energy Policy—Key Issues for Consultation" ("the 2002 Consultation Document"). Section Two of the 2002 Consultation Document identified the "Main themes for consultation":
"2.1 We would welcome views and comments on any or all of the following questions. These to a large extent derive from the PIU report and the policy objectives it describes. Links to the relevant sections of the PIU report and other documents are provided at the end of each section. In submitting views, respondents are urged to consider carefully the interactions between economic, environmental, security and social issues including the implications for the costs for consumers of their suggestions. The PIU's view was that it is vital to maintain adequate levels of energy security at all points in time. They also proposed that where energy policy decisions involve trade-offs between environmental and other objectives, then environmental objectives will tend to take preference over economic and social objectives and that this should be reflected in a redefinition of DTI's energy policy objective so that it might become 'the pursuit of secure and competitively priced means of meeting our energy needs, subject to the achievement of an environmentally sustainable energy system'.
2.2 We hope that those responding to these issues will as far as possible seek to reconcile conflicting priorities and cover all relevant crosscutting aspects such as innovation.
2.3 Many of the issues raised also have an international dimension, for example, security of supply and innovation. Respondents are invited to consider these when replying to this document.
2.4 We are primarily concerned about decisions that we need to take over the next few years but these will have to be taken in the context of possible developments up to 2020 and beyond. Respondents are therefore asked to take into account the longer-term context when replying to questions: for example, whether decisions taken in the next few years would affect the UK's capacity to achieve carbon emissions reductions of the scale suggested by the RCEP (which proposed that the Government should adopt a strategy to put the UK on a path to reducing carbon dioxide emissions by some 60% from current levels by about 2050)."
Each of the main themes was then considered in a separate paragraph. Paragraph 2.11 dealt with "Nuclear" in these terms:
"The PIU recommended keeping the nuclear option open. How confident can we be that other low carbon options will be reliably available, in sufficient time and sufficient quantity, to ensure that we can continue on a path of reducing our carbon emissions as most existing nuclear stations close over the next 20 years? What steps would be necessary to 'keep open the nuclear option' in particular in terms of Research and Development, and sustaining the skills base? (In parallel the Government is consulting about handling the treatment of waste which is referred to in the links overleaf. The DTI will also be publishing a White Paper later in the year on the management of the nuclear legacy.) What minimum lead times should we realistically assume in keeping options open for the future? To what extent should industry's costs be internalised? What regulatory and/or other changes might be desirable to reduce the risk and uncertainty for investors? What would be the costs and the consequent impacts on prices and on carbon?"
Consultees were referred to the paragraphs in the PIU Report, and to other relevant reports.
Section Three of the 2002 Consultation Document explained "How we will be conducting the review". Paragraph 3.1 stated:
"The Government's aim is that the consultation process should be as open and inclusive as possible. We believe that it is essential that we have people's views and inputs as we develop our energy policy."
It is common ground that the 2002 consultation exercise was thorough and well informed, and that the Government received a great deal of detailed evidence from a significant number of consultees.
The summary of responses to the 2002 consultation exercise noted that "Many respondents had strong views on the nuclear industry" (paragraph 8.1). The competing contentions of those who supported and those who opposed nuclear new build were summarised. For present purposes it is sufficient to note that whereas supporters considered that the nuclear industry provided "large amounts of safe, dependable and affordable base-load electricity capacity"; opponents "argued that nuclear energy is economically unviable and financially unstable despite several decades of public support …" (paragraphs 8.3 and 8.4). In respect of waste, paragraph 8.14 of the summary said:
"A large number of respondents commented on nuclear waste. Several considered it to be the key issue affecting new build. Some argued that there should be no new build until the waste issue is resolved. … A key theme throughout was the need for public and stakeholder confidence in a nuclear waste management solution, and for proper consultation."
The Energy White Paper "Our energy future—creating a low carbon economy" was published on 24th February 2003 ("the 2003 White Paper"). Chapter 4 dealt with "Low carbon generation". Paragraph 4.3 said:
"Although nuclear power produces no carbon dioxide, its current economics make new nuclear build an unattractive option and there are important issues of nuclear waste to be resolved. Against this background, we conclude it is right to concentrate our efforts on energy efficiency and renewables. We do not, therefore, propose to support new nuclear build now. But we will keep the option open."
Under the sub-heading "We do not propose new nuclear build …", paragraphs 4.67 and 4.68 said:
"4.67 As chapter 1 makes clear, our priority is to strengthen the contribution that energy efficiency and renewable energy sources make to meeting our carbon commitment. We believe that such ambitious progress is achievable, but uncertainties remain.
4.68 While nuclear power is currently an important source of carbon free electricity, the current economics of nuclear power make it an unattractive option for new generating capacity and there are also important issues for nuclear waste to be resolved. This white paper does not contain proposals for building new nuclear power stations. However, we do not rule out the possibility that at some point in the future new nuclear build might be necessary if we are to meet our carbon targets. Before any decision to proceed with the building of new nuclear power stations, there would need to be the fullest public consultation and the publication of a white paper setting out the Government's proposals."...
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