ClientEarth appeals High Court judgment upholding approval of Drax gas plant

Media release

Tuesday 21 July 2020

ClientEarth lawyers have won the right to appeal a ruling by the High Court, which sided with a UK Government decision to approve what would be Europe’s largest gas plant.

In May, the High Court ruled that former Secretary of State for Business, Energy and Industrial Strategy, Andrea Leadsom, did not act unlawfully in granting permission for Drax Power’s plans to build a new gas plant at its Selby Power plant in North Yorkshire.

The Court of Appeal has granted ClientEarth permission to appeal this judgment, and will now proceed to hear the environmental lawyers’ claim that the Secretary of State’s decision was unlawful.

This will be argued on the grounds that the Government failed to properly assess the climate impact of this large-scale infrastructure project, as well as the need for the project, in line with its own planning policies and the applicable legislation.

ClientEarth in-house lawyer Sam Hunter Jones said: “One of the fundamental objectives of the Government’s planning policies is to avoid projects that risk locking in unnecessary greenhouse gas emissions for decades to come.”

“However, the way the Secretary of State has interpreted these planning policies is stopping projects from being refused on that basis. We believe that approach is unlawful.”

ClientEarth’s assessment of the plant’s climate impact that it submitted in the planning inquiry in 2019 found that the project could create over 400% more greenhouse gas emissions than alternative energy capacity.

Furthermore, the Government’s own energy forecasts show that the UK does not need a major roll out of new large-scale gas generation capacity given existing capacity.

The Planning Inspectorate – which conducted the planning inquiry on behalf of the Government – recommended consent be refused due to the project’s significant adverse climate impact and the “significant risk” of high carbon lock-in, going against the transition to low carbon energy. This was the first time the planning authority had made such a recommendation on climate grounds.

Hunter Jones added: “As decisions on large-scale infrastructure projects across the country continue to be made, it is crucial these projects do not undermine the UK’s efforts to decarbonise by locking us into unnecessarily high carbon energy over the coming decades.

“It is therefore vital that the policies and laws central to this case allow decision makers to refuse planning approval for projects because of their climate impact. We strongly believe that they do so and look forward to arguing our case in the Court of Appeal.”

-ENDS-

Notes to Editors:

  • ClientEarth’s lawyers have been granted permission to appeal on the following grounds:
    • The interpretation of energy National Policy Statement EN-1 regarding the assessment of a project’s contribution to the need for the type of energy infrastructure in question and the weight to be applied to such contribution.
    • The approach to considering a project’s climate and GHG impacts under EN-1.
    • The approach to interpreting and applying s104(7) of the Planning Act 2008, i.e. when balancing the project’s adverse impacts against its benefits.
    • National Policy Statement EN-1 applies to all applications for development consent in respect of nationally significant energy infrastructure projects, i.e. onshore capacity (excluding wind) over 50MW and offshore capacity over 100MW. EN-1 can be accessed here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/47854/1938-overarching-nps-for-energy-en1.pdf.

Timeline:

  • 22 May 2020: High Court judgment rejects ClientEarth arguments against UK government’s decision to approve Drax Power plant
  • 28-30 April 2020: High Court hearing
  • 14 November 2019: ClientEarth files High Court challenge against the UK government’s decision to grant planning consent for Drax’s proposed gas power plant
  • 4 October 2019: UK Government goes against the Planning Inspectorate’s recommendation, granting consent for Drax’s proposed gas power plant
  • 4 July 2019: The Planning Inspectorate submits its report to the Secretary of State, recommending that consent for the Drax project be refused on climate change grounds
  • 12 November 2018: ClientEarth submits its initial written objection to Drax Power’s proposed new gas plant

About ClientEarth:

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.

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