A legal challenge to the Secretary of State’s alleged failure to review the suite of energy national policy statements (Energy NPSs) has been issued by Dale Vince, George Monbiot and the Good Law Project (the Claimants). This will be an important case, because the Energy NPSs set the policy and decision making framework for all nationally significant energy projects and are a material consideration for other energy projects.
The Claimants are seeking a declaration that the full suite of Government policy used to appraise nationally significant energy projects should be reviewed, or is now unlawful, since it is has not been reviewed in accordance with the more ambitious climate change targets adopted over recent years. The Government’s position to date has been that it is undertaking such a review and that a challenge of the type brought by the Claimants is premature.
The challenge is set in the context of the Planning Act 2008 (The 2008 Act), which lays out the regime for polices and applications relating to Nationally Significant Infrastructure Projects (NSIPs).
In 2011, the Secretary of State designated a number of Energy NPSs relating to major energy projects under this legislation – Energy NPS EN 1 to EN 6. These provide the policies against which proposals for energy NSIPs comprising fossil fuel, renewable, nuclear, gas and other energy infrastructure developments, including network enhancements, are appraised. In particular, the overarching Energy NPS (EN 1) puts in place a presumption in favour of energy NSIPs which comply with the Energy NPSs.
Under Section 6(1) and 6(2) of the Planning Act 2008, the Secretary of State must review all or parts of the Energy NPSs, whenever they consider it appropriate to do so. Section 6(3) sets out the factors which must be taken into account when considering if a review is appropriate. These are: whether there have been changes in circumstance since the policy was designated; whether these were anticipated; and, if not, whether the policy would have been formulated differently in view of these circumstances.
In 2008, the Government made a legally binding commitment in Section 1 of the Climate Change Act to reduce the country’s net carbon account by at least 80% by the year 2050 (compared to 1990 levels). In 2019, this was amended by the Climate Change Act 2008 (2050 Target Amendment) Order 2019 so that the UK is now committed to net zero carbon by 2050.
Further, in 2016 the UK signed and ratified the Paris Agreement, by which it agreed to a long-term goal of keeping global warming below 2 degrees Celsius (compared to pre-industrial levels), with an effort to limit the increase to 1.5 degrees. Within the Agreement, EU Member States – including the UK – made a joint pledge to reduce emissions at least 40% below 1990 levels. In addition, the UK parliament declared a climate emergency in May 2019.
The Claimants’ case is that these post-2011 developments mean that the Secretary of State must review the Energy NPSs. This follows a pattern whereby environmental campaign groups are ramping up the pressure on the Government in the wake of the Court of Appeal’s decision in late February in Plan B Earth and others) v Secretary of State for Transport and others  EWCA Civ 214 (the Heathrow Case).
In the Heathrow Case, the Court of Appeal declared the Airports National Policy Statement (ANPS), which was also made under the 2008 Act, unlawful. This was because the Secretary of State had failed to consider the UK’s commitments under the Paris Agreement when designating the policy.
The Claimants have widely publicised their actions thus far. In early March, a letter (the First Letter) was sent to the Secretary of State for Business, Energy and Industrial Strategy (BEIS), and other Secretaries of State, pursuant to the Pre-Action Protocol. This sought that the Government review the Energy NPSs within 21 days, failing which an application for judicial review would be filed.
The Government responded within that timeframe, confirming that it is “already actively considering whether it is appropriate to review all or part or parts” of the Energy NPSs and had been doing so since before the Heathrow Case began. It also asked the Claimants to confirm the acts or omissions which were being challenged. In a second letter dated 7 April 2020 (the Second Letter), the Claimants asked that BEIS demonstrate it had been actively considering a review of the Energy NPSs since before the Heathrow Case commenced.
The Claimants commenced the judicial review proceedings on 18 May, having raised more than £80,000 through crowd-funding.
Grounds for the Claim
The Claimants argue that the Government’s commitment to a more aggressive approach towards climate change and reducing greenhouse gas emissions – as detailed above – and the UK’s withdrawal from the EU (which will necessitate the rethinking of the country’s relationship with the EU Emissions Trading Scheme) together constitute a significant change in circumstances since the Energy NSPs were adopted in 2011. These circumstances were not envisaged when the Energy NPSs were designated – indeed, at various points they expressly refer to the 80% carbon reduction target – and if they would have been, the policies would be different, in particular envisaging a smaller role for fossil fuels. These factors must all be taken into account when the Secretary of State decides when to review a National Policy Statement, under section 6(3).
Therefore, it is, in the Claimants view, irrational for the Secretary of State to fail to think about, and fail to decide, whether it is appropriate to review the Energy NPSs under section 6(1) of the Planning Act 2008. If BEIS were to consider this, the only rational decision would be that it is appropriate to review them. In making this point, the Claimants rely heavily on the judgement in the Heathrow Case.
BEIS’ recent granting of a Development Consent Order for the construction of new gas-powered units at the Drax Power Station (the Drax Power (Generating Stations) Order 2019) is used by the Claimants to demonstrate contradictions between the Energy NPSs and the Government’s supposed approach to climate change. The Secretary of State applied the Energy NPSs to overturn the Planning Inspectorate’s recommendation not to grant consent. Separately, Client Earth, an environmental law charity, has commenced judicial review proceedings against this decision – the remote hearing commenced on 28 April.
Frustrating the objects of statutes
The Claimants alternatively argue that, where a discretion is conferred on a Secretary of State by Parliament, that discretion must not be exercised to frustrate the operation of any Act of Parliament. They argue that in this case, BEIS’ maintenance of the Energy NPSs in their present form (and BEIS’ failure to take a decision on whether it is appropriate to review them) is an exercise of discretion which runs contrary to Section 1 of the Climate Change Act 2008 (as amended in 2019), which contains the Government’s net zero commitment.
The relief sought is a declaration that BEIS must review the Energy NPSs, this being the only rational decision open for the Secretary of State to make. Alternatively, the Claimants will seek a declaration that the Energy NPSs are now unlawful.
This will be an important case for the decision-making framework for energy NSIPs. Under Section 104 of the 2008 Act, the Secretary of State must usually make decisions regarding development consent for energy NSIPs in accordance with the Energy NPSs, provided they continue to have legal effect. However, if the Energy NPSs are declared unlawful, Section 105 is invoked. This provision is much less prescriptive, particularly as the Secretary of State must have regard to any matters which he thinks are important and relevant to the application. Applicants for DCOs will therefore face greater uncertainty if the Energy NPSs no longer have legal effect, not least because these have considerable weight in establishing the need for energy infrastructure.