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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Boswell, R (On the Application Of) v Secretary of State for Energy Security and Net Zero [2024] EWHC 2128 (Admin) (14 August 2024) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2024/2128.html Cite as: [2024] EWHC 2128 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE KING (on the application of) DR ANDREW BOSWELL |
Claimant |
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- and - |
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SECRETARY OF STATE FOR ENERGY SECURITY AND NET ZERO |
Defendant |
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and |
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(1) NET ZERO TEESSIDE POWER LIMITED (2) NET ZERO NORTH SEA STORAGE LIMITED |
Interested Parties |
____________________
Ms Rose Grogan (instructed by Government Legal Department) for the Defendant
Mr Hereward Phillpot KC and Ms Isabella Tafur (instructed by Freshfields Bruckhaus Deringer LLP) for the Interested Parties
Hearing dates: 23 and 24 July 2024
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Crown Copyright ©
Mrs Justice Lieven DBE :
(a) Ground One: The Decision Letter ("DL) does not give legally adequate reasons for the conclusion that the Development "will help deliver the Government's net zero commitment".
(b) Ground Two(a): There is a demonstrable flaw in the reasoning which led to the Decision, in that: (i) the SoS assessed the Greenhouse Gas ("GHG") emissions from the Development as having "significant adverse effects" for the purposes of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (the "EIA Regulations") by reference to the Institute of Environmental Management and Assessment ("IEMA") Guidance; (ii) the Institute of Environmental Management and Assessment Guidance ("the IEMA Guidance") states that GHG emissions are considered to be "significant adverse" where a project "is locking in emissions and does not make a meaningful contribution to the UK's trajectory towards net zero" or "falls short of fully contributing to the UK's trajectory towards net zero"; (iii) the SoS nonetheless found that the Development "will help deliver the Government's net zero commitment".
(c) Ground Two(b): If, as the SoS contends, the SoS purported to reach her conclusion on the significant effects of GHG emissions from the Development (the Scheme) on the environment by reference to EN-1 (2011) and EN-1 (2024), she misinterpreted those policies and so erred in law and/or failed to reach a reasoned conclusion for the purposes of regulation 21 of the EIA Regulations.
(d) Ground Four: The SoS failed to reach her own view on the need for the Scheme and the weight to be given to need in the planning balance contrary to the requirements of para. 3.2.3 of EN-1 as interpreted by the Court of Appeal in ClientEarth v SSBEIS [2021] PTSR 1400. Alternatively, she failed to give legally adequate reasons for attaching substantial weight to the need for the Development.
The statutory scheme
"100. It is well established that issues as to whether an effect is significant and the adequacy of any assessment of significant effects are matters of judgment for the decision maker, in this case the local planning authority. Such judgments are only open to challenge in the courts applying the conventional Wednesbury standard (Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). In this regard, the parties cited R (Blewett) v Derbyshire County Council [2004] Env LR 29 and R (Friends of the Earth Ltd) v Secretary of State for Transport [2021] PTSR 190, paras 142-145.
…
102. In addition, the court should allow a substantial margin of appreciation to judgments based upon scientific, technical or predictive assessments by those with appropriate expertise (R (Mott) v Environment Agency [2016] 1 WLR 4338 and R (Plan B Earth v Secretary of State for Transport [2020] PTSR 1446, paras 176-177. There is no suggestion that the local authority lacked the appropriate expertise. They were advised by experienced senior officers who assessed the technical material provided by experts."
"The Judge then described the methodology used for the assessment of carbon emissions in the three Schemes, much of which I have already summarised: see [17] to [21] above. At [61], she rightly emphasised that EIA is a "process that starts, but does not end, with the environmental statement". She cited from the unanimous judgment of the Supreme Court in R (Friends of the Earth Ltd) v Secretary of State for Transport [2020] UKSC 52, [2021] PTSR 190, at [142] and [143] , where the Court endorsed the approach to judicial review in cases requiring an EIA laid down by Sullivan J in R (Blewett) v Derbyshire County Council [2004] Env LR 29 , warning against the adoption of an "unduly legalistic approach", and holding that the EIA Regulations "do not impose a standard of perfection in relation to the contents of an environmental statement". As Sullivan J said in Blewett at [41] , the Regulations "should be interpreted as a whole and in a common-sense way". The requirement for an EIA "is not intended to obstruct such development", nor are the Regulations based on an unrealistic expectation of perfection. The provision made for publication and a process of consultation allows for any deficiencies in the EIA to be identified, so that the resulting "environmental information" provides the local planning authority with "as full a picture as possible". Sullivan J concluded by saying there will be cases where the document purporting to be an ES is so deficient that it could not reasonably be described as an ES as defined by the Regulations "but they are likely to be few and far between"."
The Scheme
(1) A new gas-fired electricity generating station (with an electrical output of up to 860 megawatts) with post combustion carbon capture plant; gas, electricity and water connections (for the electricity generating station);
(2) A carbon dioxide (CO2) pipeline network (a 'gathering network') for gathering CO2 from a cluster of local industries on Teesside; and
(3) A high-pressure CO2 compressor station and an offshore CO2 export pipeline.
Planning and Climate Change policy
"5.2.2. CO2 emissions are a significant adverse impact from some types of energy infrastructure which cannot be totally avoided (even with full deployment of CCS technology). However, given the characteristics of these and other technologies, as noted in Part 3 of this NPS, and the range of non-planning policies aimed at decarbonising electricity generation such as EU ETS …, Government has determined the CO2 emissions are not reasons to prohibit the consenting of projects which use these technologies or to impose more restrictions on them in the planning policy framework than as set out in the Energy NPSs (e.g. the CCR and, for coal, CCS requirements). Any ES on air emissions will include an assessment of CO2 emissions, but the policies set out in Section 2, including the EU ETS, apply to those emissions. The IPC does not therefore need to assess individual applications in terms of carbon emissions against carbon budgets and this section does not address CO2 emissions or any Emissions Performance Standard that may apply to plant."
"This Part of the NPS explains why the Government considers that, without significant amounts of new large-scale energy infrastructure, the objectives of its energy and climate change policy cannot be fulfilled. However, as noted in Section 1.7, it will not be possible to develop the necessary amounts of such infrastructure without some significant residual adverse impacts. This Part also shows why the Government considers that the need for such infrastructure will often be urgent. The IPC should therefore give substantial weight to considerations of need. The weight which is attributed to considerations of need in any given case should be proportionate to the anticipated extent of a project's actual contribution to satisfying the need for a particular type of infrastructure."
"4.9.5. The government has made its ambitions for CCS clear – committing to providing funding to support the establishment of CCS in at least four industrial clusters by 2030 and supporting, using consumer subsidies, at least one privately financed gas CCS power station in the mid-2020s. In October 2021, the government published its Net Zero Strategy which reaffirmed the importance of deploying CCUS to reaching our 2050 net zero target and also outlines our ambition to capture 20-30Mt of CO2 per year by 2030."
"3.6.33. The Strategy states that it will deliver four CCUS clusters, capturing 20-30Mt CO2 across the economy, including 6Mt CO2 of industrial emissions, per year by 2030. This will be done by supporting industry to switch to cleaner fuels, such as low carbon hydrogen alongside renewable energy and CCUS. These clusters, including the East Coast Cluster, which includes Teesside, could have the opportunity to access support under the Government's CCUS programme. The Government has also set up the Industrial Decarbonisation and Hydrogen Revenue Support Scheme, to fund new hydrogen and industrial carbon capture business models."
# | Sector | Policy Name | Policy Description | Timescale from which the policy takes effect |
25 | Power | Power Carbon Capture, Usage and Storage (CCUS) |
The government has announced the project negotiating list for Track 1 carbon capture, usage and storage (CCUS) clusters. The negotiating list contains one power CCUS project. The government will provide up to £20 billion funding for early deployment of CCUS across all sectors. Further projects will be able to enter a selection process for Track 1 expansion launching this year, and 2 additional clusters will be selected through a Track 2 process. | Late CB4/Early CB5 subject to project negotiations, cluster negotiations, linked project delivery |
The Application process
The IEMA Guidance
"6.3 Significance principles and criteria
Figure 5 illustrates how to determine significance depending on the project's whole life GHG emissions and how these align with the UK's net zero compatible trajectory. The following section provides further explanation on the different levels of significance and should be read in conjunction with Figure 5.
A project that follows a 'business-as-usual' or 'do minimum' approach and is not compatible with the UK's net zero trajectory, or accepted aligned practice or area-based transition targets, results in a significant adverse effect. It is down to the practitioner to differentiate between the 'level' of significant adverse effects e.g. 'moderate' or 'major' adverse effects …
A project that is compatible with the budgeted, science-based 1.5°C trajectory (in terms of rate of emissions reduction) and which complies with up-to-date policy and 'good practice' reduction measures to achieve that has a minor adverse effect that is not significant. It may have residual emissions but is going enough to align with and contribute to the relevant transition scenario, keeping the UK on track towards net zero by 2050 with at least a 78% reduction by 2035 and thereby potentially avoiding significant adverse effects.
A project that achieves emissions mitigation that goes substantially beyond the reduction trajectory, or substantially beyond existing and emerging policy compatible with that trajectory, and has minimal residual emissions, is assessed as having a negligible effect that is not significant. This project is playing a part in achieving the rate of transition required by nationally set policy commitments.
A project that causes GHG emissions to be avoided or removed from the atmosphere has a beneficial effect that is significant. Only projects that actively reverse (rather than only reduce) the risk of severe climate change can be judged as having a beneficial effect."
Environmental Impact Assessment process
The Examining Authorities' Report (ExAR)
a. 5.2.103: The scheme would contribute towards the urgent need and would reduce the carbon intensity of the overall future energy mix in the UK;
b. 5.2.104-105: The scheme is supported by EN-1 and Government's wider policy statements;
c. 5.2.108: Specifically addressed the Claimant's objection on need:
"Whether or not CEPP is right that CCS technology is the best way to decarbonise the UK energy system, there is considerable NPS policy and wider energy support for the Proposed Development. While aspects of the Net Zero Strategy have been challenged in the High Court, the judgment does not affect the merits of the Strategy or how it should be considered in terms of this application."
"5.3.44. In the absence of any widely accepted guidance on assessing the significance of the impact from GHG emissions, the IEMA Guidance, including the updates to this since the assessment …, was referenced by the Applicants. It is not disputed by Ops that this is a suitable approach, and we are content that the guidance is appropriate for addressing the requirements of the ES. As part of the update, the Applicants accepted that the assessment should include the upstream and downstream emissions associated with the supply of gas. Their assessment demonstrated that there would be a significant increase in GHG emissions once upstream and downstream emissions were included and they provided an estimate of this on both an annual and lifecycle basis. We are satisfied that this assessment is appropriate.
5.3.45. We have noted the Applicants' revised assessment … of the effects of GHG emissions from the Proposed Development as being both significant and beneficial. This is on the basis that the project baseline could be a similar CCGT operating without CCS and that the Proposed Development represents a significant improvement on this. EN-1 requires that all commercial scale combustion power stations must be constructed Carbon Capture Ready. On this basis, we do not consider it viable to use unmitigated emissions as a baseline any longer.
5.3.46. It is of note that the draft EN-1 describes the inevitable emissions that cannot be avoided from some energy infrastructure as a significant adverse impact. EN-1 does not provide policy on this matter. We also note that the IEMA is quoted as saying that "all GHG emissions are classed as having the potential to be significant as all emissions contribute to climate change". Given there would be approximately 70MtCO2e emitted even with 90% capture, we conclude that this would be a significant adverse effect. In coming to this conclusion, we have had regard to the Applicants' use of the UK's Carbon Budget in section 21.3 of ES Chapter 21 to put these emissions in context and accept that they would be a very small part of this.
5.3.47. We regard use of the BEIS/Defra emissions factor, which represents the national average carbon intensity for the fuel in commercial use, is a reasonable approach and we are satisfied that this represents the best data and understanding available at the current time. We acknowledge the considerable uncertainty over the future source of natural gas and that the well-to-tank emissions could be higher for imported fuel. However, we also recognise a concerted international effort to reduce methane emissions, including leakage, which could lead to reduction in carbon intensities. Based on this, we do not consider it necessary or reasonable to require annual projections for the lifetime of the Proposed Development to meet the requirements of the EIA Regulations.
5.3.48. We do not consider it necessary to insert a requirement into the dDCO that requires the CCGT to operate only when the carbon intensity is below the International Energy Agency projections, as recommended by CEPP. EN-1 is clear that the ETS forms the cornerstone of UK action to reduce emissions. The draft EN-1 updates this to include the 'key' mechanism of Contracts for Difference, and business models to incentivise CCUS, Carbon Price Support and the Emissions Performance Standard. These regulatory and financial controls outlined work together to control and encourage reduction of GHG emissions and it would not be appropriate for us to seek further control of this via the dDCO."
"5.3.57. Conservatively allowing for 90% capture during operation, the total onshore GHG emissions would be over 16MtCO2e over the lifetime of the Proposed Development. Based on the policy in the draft EN-1, we conclude that these emissions would have a significant, adverse effect on carbon emissions, even with deployment of CCS technology. …"
The Decision Letter
"… The Secretary of State agrees, noting that the Proposed Development would emit approximately +20 MTCO2e during its operational life …, and concludes that an unmitigated emissions estimate would not be an appropriate comparator. The Secretary of State notes in this regard that designated EN-1, both 2021 and 2023 drafts and designated 2024 NPSs state that operational GHG emissions are a significant adverse impact from some types of energy infrastructure which cannot be totally avoided (even with full deployment of CCS technology))."
"The Secretary of State has considered the ExA's report and consultation responses received. She considers that the Proposed Development would support the UK transition towards a low carbon economy. The Secretary of State has considered the potential benefits which the wider NZT Project would bring in reducing emissions but accepts the ExA's conclusions that over the lifetime of the Proposed Development, emissions would have a significant adverse effect. She does not, however, agree that this matter carries only moderate negative weight in the planning balance as GHG emissions are stated as having a significant adverse impact in both the 2011 and 2024 designated NPSs and draft 2021 and 2023 NPSs. Taking into account the post-examination inclusion of T&S unavailability emissions and the consequent increase in GHG emissions, the Secretary of State concludes that the cumulative whole life GHG emissions will be in the region of +20,808,127 tCO2e. Also, the Secretary of State notes the resultant increase in the contribution of the Proposed Development to the power sector carbon budgets. She agrees with the ExA in giving more weight to the 2024 NPS's than a comparison with the UK carbon budgets for the assessment of significance but has taken this increase into account. Overall, she considers that cumulative whole-life GHG emissions are a significant adverse effect, carrying significant negative weight in the planning balance."
"4.11. The ExA considered that the Proposed Development would address the urgent need for new electricity capacity as set out in EN-1, the use of natural gas for energy generation (EN-1 and EN-4) and the urgent need for gas-fired electricity generation with CCS (Carbon Capture Storage) infrastructure as set out in the draft 2021 EN1. The Secretary of State notes that this urgent need is also set out in the draft 2023 and 2024 EN-1 and that the Proposed Development would help deliver the Government's net zero commitment by 2050. The ExA consider that by providing CCS the Proposed Development would be in line with Government's wider policy statements on energy and climate change, including those listed in section 3.6 of the ExA report, which constitute important and relevant matters. The UK Marine Policy Statement and the North East Marine Plan are supportive of the deployment of CCS/CCS in the UK Marine Area and local RCBC and STDC policies support the move to a low carbon economy and a CCUS network in the area. The Secretary of State notes that designated 2024 EN-1 further strengthens the support for the Proposed Development by making nationally significant low carbon infrastructure, including natural gas fired electricity generation which is CCR, a critical national priority. The Secretary of State also acknowledges that the full chain CCUS nature of the Proposed Development elevates it considerably above other CCR projects as it will be required to capture a minimum of 90% carbon when operating at full load throughout it's operation, and will seek to achieve a capture rate of at least 95%. … This further contributes to the strong positive weight accorded to the need for the Proposed Development.
…
4.30. The Secretary of State agrees with the ExA's assessment of need for this type of energy infrastructure and has taken into account that the Proposed Development, as CCGT with CCS, attracts strong policy support and would support the UK's transition towards the net zero target. The Secretary of State agrees with the ExA that weight should be given to the benefit of the creation of a CO2 gathering network and ascribes this moderate positive weight. The Secretary of State agrees that the Proposed Development is CCR, that an appropriate approach has been taken in respect of the Offshore Elements and that the issue of alternatives has been appropriately addressed. She agrees with the ExA's position that appropriate controls would be in place through Requirement 31 and the necessary Environment Permits for the CCGT and carbon capture plant. In accordance with paragraph 3.2.3 of EN-1 and paragraphs 3.1.1-3.1.2 of the draft 2021, draft 2023 and designated 2024 NPSs the Secretary of State attributes substantial positive weight to the contribution that the Proposed Development would make towards meeting the national need."
Submissions
"A decision may be challenged on the basis that there is a demonstrable flaw in the reasoning which led to it – for example, that significant reliance was placed on an irrelevant consideration, or that there was no evidence to support an important step in the reasoning, or that the reasoning involved a serious logical or methodological error. …"
"… It is also necessary to recall that the aim of the EIA is to establish general principles for assessing environmental effects. UK national policy is clearly relevant to the substantive decision whether to grant development consent. But it is irrelevant to the scope of EIA. For reasons discussed earlier, the fact (if and in so far as it is a fact) that a decision to grant development consent for a particular project is dictated by national policy does not dispense with the obligation to conduct an EIA; nor does it justify limiting the scope of the EIA.
152. The second, related flaw is also fundamental. The argument made is a version of the claim that, if information about environmental impacts would make no difference to the decision whether to grant development consent (or on what conditions), it is not legally necessary to obtain and assess such information in the EIA process. Such a contention was resoundingly rejected by the House of Lords in Berkeley . It misunderstands the procedural nature of the EIA. The fact (if it be the fact) that information will have no influence on whether the project is permitted to proceed does not make it pointless to obtain and assess the information. It remains essential to ensure that a project which is likely to have significant adverse effects on the environment is authorised with full knowledge of these consequences."
"This Part of the NPS explains why the Government considers that, without significant amounts of new large-scale energy infrastructure, the objectives of its energy and climate change policy cannot be fulfilled. However, as noted in Section 1.7, it will not be possible to develop the necessary amounts of such infrastructure without some significant residual adverse impacts. This Part also shows why the Government considers that the need for such infrastructure will often be urgent. The IPC should therefore give substantial weight to considerations of need. The weight which is attributed to considerations of need in any given case should be proportionate to the anticipated extent of a project's actual contribution to satisfying the need for a particular type of infrastructure." [emphasis added]
"66. It is with this point firmly established – "substantial weight" should be given to "considerations of need" – that one comes to the final sentence of the paragraph, which concerns decision-making "in any given case". From the sentence itself three things are clear. First, while the starting point is that "substantial weight" is to be given to "considerations of need", the weight due to those considerations in a particular case is not immutably fixed. It should be "proportionate to the anticipated extent of [the] project's actual contribution to satisfying the need" for the relevant "type of infrastructure". To this extent, the decision-maker – formerly the IPC and now the Secretary of State – may determine whether there are reasons in the particular case for departing from the fundamental policy that "substantial weight" is accorded to "considerations of need". Secondly, the decision-maker must consider this question by judging what weight would be "proportionate" to the "anticipated extent" of the development's "actual contribution" to satisfying the need for infrastructure of that type. These are matters of planning judgment, which involve looking into the future. Thirdly, beyond the description of the decision-maker's task in those terms, there is no single, prescribed way of performing that task, and there are no specified considerations to be taken into account, or excluded. It is not stated that the issue of what is "proportionate" to the proposal's "actual contribution" must, or should normally, be approached on a "quantitative" rather than a "qualitative" basis.
…
68. Properly understood, paragraph 3.2.3 is not in tension with the other policies. It supports them. Based, as it is, on the fundamental policy that "substantial weight" is to be given to the contribution made by projects towards satisfying the established need for energy infrastructure development of the types covered by EN-1, including CCR fossil fuel generation infrastructure, it ensures that the decision-maker takes a realistic, and not an exaggerated, view of the weight to be given to "considerations of need" in the particular case before him, which should be "proportionate to" the "actual contribution" the project is likely to make to "satisfying the need" for infrastructure of that type. That is its function."
Conclusions