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Energy and Climate Change Secretary Ed Miliband has been warned that the Government could face a judicial review unless its “fundamentally flawed” draft planning policies on major energy infrastructure are significantly changed.

Friends of the Earth’s legal department has written to Mr Miliband raising a number of concerns about the Government’s draft Energy National Policy Statements (NPSs), which will set the basis for individual planning decisions on major energy projects by the new Infrastructure Planning Commission (IPC) from March onwards.

The flaws in the Energy NPSs identified by Friends of the Earth include: 

• Telling the IPC not to consider the carbon impacts of applications that come before it. The NPS should require the IPC and Committee on Climate Change to work together to ensure the UK’s electricity sector decarbonises quickly, and in line with the UK’s carbon budgets;

• Wrongly instructing the IPC to assume that all forms of energy infrastructure are ‘needed’ – which threatens to lock the UK into high carbon energy infrastructure;

• Failing to follow European legal requirements on Strategic Environmental Assessment (SEA);

• Failing to consult properly.

Friends of the Earth’s Executive Director Andy Atkins said:

“The Government’s draft National Planning Statements on energy are fundamentally flawed.

“The consultation was insufficient, the alternatives were inadequately explored, and the policies are poorly justified.

“And because they fail to assess the carbon impact that the proposed development will have they threaten to undermine UK Carbon Budgets.

“Friends of the Earth has written to Ed Miliband warning him that these proposals are probably unlawful and could lead to a challenge in the courts.”

Friends of the Earth also said that the NPSs fail to set out an integrated framework for sustainable infrastructure development.

Notes to editors:

1. The draft Energy National Policy Statements were published by the Government on 9 November 2009. The consultation ends on 22 February 2010. Please see Government press release here:  A parliamentary select committee is taking evidence at present.

2. Friends of the Earth wrote to Ed Miliband on 18 January 2010 highlighting a number of concerns, including:

• NPS preparation has not followed European legal requirements on Strategic Environmental Assessment (SEA).  In particular:

- DECC has refused to assess any policy alternatives (except for the nuclear NPS).  The SEA legislation explicitly requires the consideration of ‘reasonable alternatives’.  That means that different policies ought to be assessed.  DECC’s consultants proposed 17 different possible ‘reasonable alternatives’ for consideration.  DECC refused to evaluate any of them and refused to come up with any other alternative policy options. 
- DECC has failed to consider ‘cumulative impacts’.  Giving consideration to ‘cumulative impacts’ is an explicit requirement of the SEA legislation.  However, DECC says that this consideration will take place at the IPC stage when individual applications are considered.  That is directly at odds with the UK Government’s own advice on how to carry out SEA which makes clear that such assessment must take place at this stage. 
- DECC has only assessed the environmental effects of having a new type of consenting regime.  They have refused to assess any of the environmental impacts of the policies or the projects that will come forward.  That is also a breach of the requirements of the Planning Act 2008 (section 5(3)).

• DECC has asserted that there is a ‘need’ for all forms of energy infrastructure and has instructed the IPC to proceed on the basis that all infrastructure is ‘needed’.  This creates the possibility that new carbon intensive infrastructure (particularly gas) will lock the UK in to long term carbon intensive development.  In fact, the assessment of ‘need’ is significantly flawed as the Government’s own figures show that much of the need for ‘non-renewable’ energy infrastructure is already being met through gas projects that are in the process of being approved.

• DECC has tried to stop the IPC from considering carbon when it determines the applications that come before it.  But there need to be safeguards to prevent the UK getting locked-into high-carbon infrastructure. The IPC should be required to work with the Committee on Climate Change to ensure that its decisions lead to a rapid decarbonisation of the UK electricity sector, and that the greenhouse gas impacts of all applications it approves are in line with the UK’s carbon budgets.

• DECC’s consultation does not appear to meet the requirements of the Planning Act 2008 as it seems that not all relevant local authorities have been consulted. It is also inadequate in that previous Government commitments have not been adhered to, and that the likely General Election timetables are squeezing the consultation and scrutiny process. It is essential that people have a proper chance to influence policy and the Government allows time to take issues on board and revise policy.


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Published by Friends of the Earth Trust