High Court thwarts ClientEarth's bid to overturn minister's consent for Drax gas plant

The government's consent for a new gas-fired plant at the Drax power station in Yorkshire, taken against the recommendation of a planning inspector, has been upheld by a High Court judge who ruled that the ministerial approval was in line with national planning policy.

London's Royal Courts of Justice
London's Royal Courts of Justice

Drax Power Limited applied in May 2018 for a development consent order (DCO) to construct and operate two new gas-fired units at the plant, which would have an overall capacity of up to 3,800MW. That was 173 per cent more than the 1,320MW output of the less efficient coal-fired units, which were due for decommissioning.

The former secretary of state for business, energy and industrial strategy, Andrea Leadsom, approved the proposal in October 2019, despite a recommendation to refuse from the inspector who examined the DCO application.

Environmental campaign group ClientEarth argued that Leadsom, had, in granting approval, effectively ignored the UK's commitment to achieve net zero carbon emissions by 2050.

Insisting that there was no need for the development, or any other large gas-fired generation units, ClientEarch pointed out that greenhouse gas (GHG) emissions from the two new units would be close to double those given off by the coal-fired units they were to replace.

Mr Justice Holgate, however, dismissed each and every one of ClientEarth's grounds of challenge to Leadsom's decision to grant a DCO for the nationally significant infrastructure project.

ClientEarth's argument that there was no need for any future new large gas-fired power stations to be built, the judge said, was a "barely disguised challenge to the merits" of the government's energy generation policies.

Drax accepted that, measured against a baseline position, the new units would result in a 90 per cent net increase in GHG emissions from the Selby site between 2020 and 2050.

When the higher output and efficiency of the gas-fired units was taken into account, however, it argued that there would be a substantial reduction in the 'intensity' of GHG emissions.

For its part, ClientEarth, which founded its assessment on a different baseline, estimated that the development would result in a 443 per cent increase in emissions intensity and a 488 per cent increase in total GHG emissions.

In its consideration of the application, the Planning Inspectorate (PINS) had concluded that a reasonable baseline was likely to fall somewhere between the positions favoured by Drax and ClientEarth and that the increase in GHG emissions was "likely to be higher" than Drax's estimate.

Whilst recognising the need for additional energy infrastructure in general, PINS found that Drax had not shown that the development itself met an identified need for gas generation capacity when assessed against the overall policy objectives of security of supply, affordability and decarbonisation.

PINS recommended that consent for the development be refused, but Leadsom disagreed and granted the DCO. She emphasised the UK's general need for fossil fuel generation and gave substantial weight to the contribution that the new units would make to meeting that need.

Dismissing ClientEarth's judicial review challenge to her decision, Mr Justice Holgate ruled that Leadsom was not obliged to draw a distinction between the power generation needs of the nation in general and the need for the particular development.

ClientEarth's central argument - that there was no need for any new-build large gas power capacity to achieve energy security - "flew in the face" of national policy, which states that fossil fuel power generation will continue to make a vital contribution to meeting the UK's energy needs in a flexible manner.

Leadsom was not under a "heightened obligation to give fuller reasons" for disagreeing with its conclusions, the judge said. She did not, as ClientEarth argued, treat GHG emissions as irrelevant, nor did she treat them as something to which no weight should be given.

The judge added: "She accepted the panel's finding on the significant adverse impacts of GHG emissions from the development could be weighed in the balance against the proposal. But she disagreed with the panel's evaluation of the benefits of the proposal, including its contribution towards meeting policy need.

"Once such benefits were correctly weighed, she found that the impact of GHG emissions should not carry determinative weight in the overall planning balance. That can only mean that the disbenefits did not carry more weight than the benefits.

"Rather, it was the other way round. The secretary of state was describing a straightforward balancing exercise."

ClientEarth pointed to PINS' conclusion that "the projected increase in total GHG emissions of more than 90 per cent above the current baseline for Drax would undermine the government's commitment to cut GHG emissions".

The judge, however, ruled that Leadsom was entitled to observe that there was no evidence to suggest that granting consent for the particular development would in itself lead to the government breaching its climate change commitments.

In her decision letter, the secretary of state had noted that "the move to net zero is not in itself incompatible" with policies which recognise the continued importance of fossil fuel generation in achieving national energy security.

ClientEarth's arguments that the procedure followed by Leadsom was unfair, and that she failed to assess the development's compliance with carbon capture targets or the need for emission monitoring measures, all fell on fallow ground.

The pressure group's "bare allegation" that her decision was irrational had been sensibly withdrawn and the judge concluded: "The claim for judicial review must be dismissed."

R on the Application of ClientEarth v Secretary of State for Business, Energy and Industrial Strategy. Case Number: CO/4498/2019

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