We can't keep developing new fossil fuel projects

by Good Law Project Limited

We can't keep developing new fossil fuel projects

by Good Law Project Limited
Good Law Project Limited
Case Owner
We are working with the noted environmentalists Dale Vince and George Monbiot to bring this key challenge.
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We are working with the noted environmentalists Dale Vince and George Monbiot to bring this key challenge.
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Latest: May 23, 2020

We have issued proceedings for judicial review

We have now issued proceedings for judicial review after the Department of Business, Energy and Industrial Strategy said it is not appropriate to review its outdated energy policy at this time. …

Read more

As we teeter on the brink of climate catastrophe it is long past time to review our energy policy. 

The government last set out a strategy for meeting the energy needs of our country in 2011. Its policy is that planning decision makers must presume in favour of fossil fuel developments, for which there is assumed to be an urgent need (EN-1 para 4.1.2).

The strategy is to be found in the Energy policy framework that governs how planning decisions are made. The strategy has yet to grapple with the impact of the Inter-governmental Panel on Climate Change’s recent reports, to the Paris Agreement, to the UK Climate Change Committee’s advice, to Parliament’s revision of our statutory greenhouse gas emissions target to 100% below 1990 levels by 2050, to the decision to phase out coal by 2025, or even to the implications of leaving the EU and our Emissions Trading System.

Worse than that, the Secretary of State has not even thought about whether it is appropriate to review the Energy National Policy Statement. Our claim for judicial review seeks to force him to do just that. 

Right now the government are pushing through energy project after energy project  using an outdated NPS that requires a presumption in favour of fossil fuel developments. In October 2019 the Secretary of State relied heavily on these policies to grant development consent for the Drax gas-fired generating station - even though her appointed Inspector had recommended it be rejected and even though she recognised the adverse carbon impacts. 

Here is what Andrea Leadsom said: 

"while the significant adverse impact of the proposed Development on the amount of greenhouse gases that will be emitted to atmosphere is acknowledged, the policy set out in the relevant NPSs makes clear that this is not a matter that that should displace the presumption in favour of granting consent."

The Government's outdated NPS means approval to frack in Lancashire or permission for a new open cast coal mine or Gas-fired power station can be forced through, with national policy overriding the commitments made in the Paris Agreement or the Netzero by 2050 commitment enacted by Parliament. And it discriminates against smaller scale renewable projects, like solar or onshore wind.

The Case

The recent ruling of the Court of Appeal that the Airports NPS was unlawful for failing to take account of the Paris Agreement exposes the cracks in the government’s approach to strategic decision-making across the board as it struggles to adapt to the Paris Agreement;  Parliament’s new Netzero by 2050 target and the climate emergency.  

This case, if successful, would force the government to review the outdated policy in the energy sphere. As matters stand, future fossil fuel projects - such as West Burton C - continue explicitly to rely on the NPS obligation to "start with a presumption in favour of granting consent to applications for energy NSIPs." And the structural planning bias against renewable energy sources continues to impede our ability to achieve Netzero by 2050.

The outcomes of litigation in the environmental sphere are never certain. The legislation tries to discourage challenges like this. But we believe the case, and the issue it tackles, is compelling.

You can see our formal letter to the Secretary of State setting out the legal basis of our case here.

Who We Are

The case to force the government to review the Energy National Policy Statements currently has three claimants:

Dale Vince, Founder of Ecotricity

George Monbiot, Journalist

Good Law Project Limited

Details

The Good Law Project has instructed Baker & McKenzie and Alex Goodman of Landmark Chambers. We are grateful to Baker & McKenzie which is acting pro bono. We are also grateful to Alex Goodman who is acting at considerably below commercial rates. We are also in the process of engaging an additional barrister who will also act at below market rates

However, we still need to raise funds to pay legal fees and to meet any costs liability if we lose. The Good Law Project also has a number of further environmental cases in development. Any surplus funds raised will be dedicated to developing and running that further litigation. 10% of the sum raised will be used to help cover GLP's general running costs. Our founder, Jo Maugham QC, continues to work unpaid.

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Update 2

Good Law Project Limited

May 23, 2020

We have issued proceedings for judicial review

We have now issued proceedings for judicial review after the Department of Business, Energy and Industrial Strategy said it is not appropriate to review its outdated energy policy at this time. 

The Energy National Policy Statements force planning decision makers to presume in favour of fossil fuel developments and fails to take into account a number of commitments by Government to tackle carbon emissions, including in the Paris Agreement and the Netzero by 2050 commitment enacted by Parliament in 2019. 

In an exchange of pre-action letters, the Government initially claimed that the Secretary of State had been thinking about whether to review the National Policy Statements since July 2018. But when we probed further we were told that in fact the Secretary of State had never personally thought about whether to review the policy, and that they would not even ask the Secretary of State whether he thinks it is appropriate to review the policies for at least another year. Our challenge now  extends to this assumption of authority by civil servants.

The grounds for the judicial review can be found here. More information on the case, including witness statements from Dale Vince, Chief Executive of Ecotricity, George Monbiot, journalist and environmentalist and Good law Project can be found here. 

We are teetering on the brink of a climate catastrophe. We think the evidence is such that as a matter of law the National Policy Statement needs to be changed. However the Government - civil servant or minister - is refusing even to agree it should be reviewed for possible change and that can't be right. Our legal challenge will seek to change that. Thank you for supporting this case.



Update 1

Good Law Project Limited

April 8, 2020

We've made some progress - but not enough

We have now heard back from the Secretary of State.

He has told us his officials accept they must consider rewriting the Government’s existing strategic plan for our energy sector requiring a presumption in favour of fossil fuel developments. But we don’t think that’s good enough. It seems to us that, in light of the Paris Agreement and Parliament’s commitment to NetZero by 2050, Government must actually rewrite the strategic plan; they must ditch that presumption; they must remove the structural bias against smaller scale renewable energy projects.

We have written back asking them when they will conclude their review. We expect to issue proceedings late next week.

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