Despite their pledge to be the ‘greenest government ever’, close analysis of the UK government’s proposed design of CO2 emissions performance standards for fossil fuel generation (‘EPS’ – limits on the amount of pollutants released into the air) risks being an unlawful backward-step.
ClientEarth argues that swift introduction of EPS is necessary for proper environmental regulation of the power sector. The UK Government’s advisors on carbon budgets and climate change (the Committee on Climate Change) has advised that to meet legally binding reduction targets the UK’s power sector needs to be almost completely decarbonised by 2030. Coal power cannot continue as it is past the early 2020s at absolute latest. Unabated gas also has a limited time frame.
The current UK government is indeed adhering to its election promise to introduce EPS for power generation, so what’s the problem? As always, the devil is in the detail. The model they propose is actually a retreat from the previous government’s plans for fossil fuel.
A key feature of the last government’s plan was that within five years of Carbon Capture and Storage (CCS) being proven, any new coal-fired installations that received building consent on the condition of operating CCS at partial capacity, would have to completely retrofit CCS – that is, implement capture and storage of 100 per cent of their emissions. Their plan also committed to produce future contingency plans to phase out non-CCS coal power generation if CCS was not proven on time.
The current government has backtracked on this plan. Its recent proposals for EPS design, fossil fuel powered plants consented in the near future would not be required to undertake any further retrofit for the duration of their economic life – almost certainly taking us beyond the timescales recommended by the Committee on Climate Change.
This sends a clear legal signal to industry that plants that receive consent won’t be subject to additional regulation on timescales announced in the last government’s plan for coal.
ClientEarth has made a submission to the UK government warning that its attempts to make exemptions a part of EPS design will be unlawful unless it undertakes a new strategic environmental assessment – to which the previous government’s coal plan was subjected.
Such an assessment would reveal preferable EPS design and make it difficult for the government to backtrack on CCS retrofit timelines. This could include gradually tightening limits for pollutants consistent with, or exceeding, the timelines and requirements adopted by the last government.
Ensuring the proper implementation of the EU’s strategic environmental assessment Directive, which is repeatedly misapplied by governments in assessment of the climate impacts of their plans and programmes, is crucial.
We don’t want to frustrate the swift introduction of EPS in this case. Our submission (a response to the Electricity Market Reform consultation) shows that the government can avoid a new strategic environmental assessment for the plans for new coal, or risk potential legal challenge, by pursuing better EPS design.
David Holyoake is legal advisor on climate and energy for ClientEarth, an organisation of activist lawyers committed to securing a healthy planet.