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High Court Dismisses Claim in Drax Challenge

Andrew Tait QC
Gregory Jones QC
Mark Westmoreland Smith
Ned Westaway
Merrow Golden

Mr Justice Holgate has given judgment in ClientEarth’s judicial review of the Secretary of State’s decision to make a development consent order for the construction of two gas-fired units, and related development, at Drax Power Station in North Yorkshire (R (ClientEarth) v SSBEIS [2020] EWHC 1303 (Admin)).

The claim was heard on 28-30 April 2020 using Microsoft Teams.

In making the DCO, the Secretary of State had disagreed with the recommendations of the panel that had carried out an examination of the application under the Planning Act 2008 (“PA 2008”).  The Examining Authority, among other things, considered that there was limited need for the development and that climate change impacts were significant.  The Secretary of State considered that need was a matter established under the relevant national policy statement (EN-1) and should be given “substantial weight”.  She considered that climate change impacts were not sufficient, taken together with other impacts, to outweigh the benefits of the proposal.  She had regard to the Net Zero target for greenhouse gas (“GHG”) emissions (introduced by an amendment to the Climate Change Act 2008 in June 2019) but concluded that there was nothing to suggest that the Drax proposal would lead to a breach of that target.

The claim proceeded on eight grounds.  By way of very brief summary, the Judge held on each:

  • Grounds 1 and 2: the Secretary of State properly interpreted national policy in EN-1 as establishing that “substantial weight” be given to the need for fossil fuel energy projects that are “carbon capture ready”; the reasons in the decision letter adequately explained why the Secretary of State took a different view from the Examining Authority;
  • Ground 3: EN-1 states that CO2 emissions from a proposed energy NSIP do not provide a reason for refusing a DCO application but neither EN-1 nor EN-2 treats GHG emissions as an irrelevant consideration in a DCO application or as a disbenefit to which no weight may be given; the Secretary of State’s interpretation of the policy was correct;;
  • Ground 4: the Secretary of State was entitled to rely upon the policy in EN-1 and EN-2 in carrying out the balancing exercise under PA 2008 s.104(7) and these policies did not preclude the possibility of giving greater weight to GHG emissions in the balancing exercise, so long as GHGs were not treated as a freestanding reason for refusal;
  • Ground 5: the assessment of whether or not it was “economically feasible” to retrofit plant to capture CO2 and transport it to storage sites under Reg.2(2) of the Carbon Capture Readiness (Electricity Generating Stations) Regulations 2013 was legally adequate;
  • Ground 6: the Secretary of State complied with Reg.21(1)(d) of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 that required her to consider whether it is appropriate to impose monitoring measures, and was entitled to rely upon the monitoring of greenhouse gas emissions required under Greenhouse Gas Emissions Trading Scheme Regulations 2012;
  • Ground 7A: there was no requirement as a matter of fairness for the Secretary of State to refer a post-Examination submission on Net Zero prepared by the applicant to ClientEarth before determining the application because (i) the submission was not taken into account by the Secretary of State and in any event (ii) ClientEarth suffered no prejudice as the arguments it would have made related to the merits of policy and would have been disregarded under PA 2008 s.106(1);
  • Ground 8: the Secretary of State adequately addressed the Net Zero target in the decision letter and was, as a matter of judgment, entitled to rely upon other mechanisms outside the planning system, such as electricity market reform and emissions trading, to control emissions from fossil fuel electricity generation when potential pathways are drawn up to help achieve the Net Zero target, consistently with the policies in EN-1.

The Judge also rejected an application by the Claimant to amend the claim to add a ground 7B that the failure of the Secretary of State to consult the parties on the Net Zero target caused procedural unfairness.

The Judgment covers important issues of public and environmental law, and of energy and climate policy.  It is available here.

Gregory Jones QC and Merrow Golden appeared for ClientEarth.

Andrew Tait QC and Ned Westaway appeared for the Secretary of State.

Mark Westmoreland Smith appeared for Drax Power Ltd.