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Press release: 21 January 2021
ClientEarth lawyers have welcomed an important legal precedent for assessing major energy projects on their climate change impact, despite the Court of Appeal upholding the planning approval for a new gas plant in North Yorkshire.
The Court ruled that current planning policy could be used to refuse permission for major energy projects due to their climate impacts. The Court also ruled that the national need for every project must be assessed, and that assessment must be forward looking and ‘grounded in reality’.
Last November, lawyers argued the Government failed to properly assess the climate impact of Drax’s proposed 3.6GW Selby gas plant, as well as the need for the project, in line with its own planning policies and legislation.
In permitting what would be Europe’s largest gas plant, the Government overruled its own planning authority, which had recommended the project be refused permission on climate grounds.
Today, the Court endorsed ClientEarth’s key arguments on what the planning policy requires and allows, overturning the High Court’s findings on those issues. But, while the Court found the Secretary of State’s approval of the plant was lawful, that outcome points to serious flaws in the Government’s approach to permitting new fossil fuel projects.
ClientEarth lawyer Sam Hunter Jones said: “This ruling sets an important precedent: major energy projects in the UK can be rejected on climate change grounds, and the Government must consider the carbon lock-in risk of each project.
“Following this judgment, decision-makers must now stop hiding behind planning policy to justify business-as-usual approvals of highly polluting projects. They need to engage with reality and take ownership of decisions that could make or break whether we achieve our long-term climate targets.
“Crucially, and contrary to Drax’s position at the planning inquiry, the judgment confirms that decision makers must consider a project’s carbon lock-in risk, that they can refuse permission on the basis of climate impacts, and that the public can raise these issues in planning inquiries.”
“The Secretary of State’s decision still stands and that’s problematic of course, but we believe that the judgment brings vital clarity to the meaning of national planning policy.”
And if the Secretary of State did understand that she needed to consider the project’s carbon lock-in risk and could refuse consent on that basis, then that exposes a clear failure to reckon with what the net zero target means for the power sector and to engage with the findings of the Government’s own planning authority regarding the project’s unacceptable carbon lock-in risk.
Lawyers also said that the clarity brought by the judgment also established a sound starting point for improving energy planning policies, in the upcoming National Policy Statements review. Policies should be improved to take account of the net zero target and to avoid any possible risk of the Secretary of State’s approach in this case being replicated in other decisions.
The judgment also confirms the ability of decision makers across all major infrastructure planning to take account of changes in circumstances since the issuing of policy under the Planning Act 2008, with possible implications for other infrastructure projects outside of the energy context.
Also, it is now up to the company to revisit its plans after the UK climate authority’s latest net zero recommendations, as well as recent data showing demand for gas in the UK continuing to be displaced by renewables.
“The climate and business case for large-scale gas power has only got worse since the Planning Inspectorate recommended Drax’s proposals be refused permission.
“The Climate Change Committee says that to get to net zero the UK needs a completely decarbonised power system by 2035 – that’s more than fifteen years before the end of this project’s expected operating life,” Hunter Jones added.
“Drax also needs to explain how this project squares with its own recent commitment to ‘flexible and renewable’ generation, if indeed it remains interested in taking it forward.”
ClientEarth is a charity that uses the power of the law to protect people and the planet. We are international lawyers finding practical solutions for the world’s biggest environmental challenges. We are fighting climate change, protecting oceans and wildlife, making forest governance stronger, greening energy, making business more responsible and pushing for government transparency. We believe the law is a tool for positive change. From our offices in London, Brussels, Warsaw, Berlin and Beijing, we work on laws throughout their lifetime, from the earliest stages to implementation. And when those laws are broken, we go to court to enforce them.