Court of Appeal upholds government's decision to approve controversial project, despite claims it would undermine UK climate targets
Plans for a major new gas-fired power plant in North Yorkshire look to have cleared the last major legal hurdle, after the Court of Appeal upheld the government's decision to grant planning permission for the controversial project despite widespread concerns over its climate impact.
The Court of Appeal yesterday dismissed claims from ClientEarth that then-Business Secretary Andrea Leadsom acted unlawfully in granting Drax's proposed 3.6GW gas plant in Selby planning permission in 2019, when she overruled contrary advice from the UK's planning authority.
The Planning Inspectorate had opposed the project, warning it could lock-in high carbon infrastructure at the expense of the UK's climate goals, marking the first time it had opposed a major project on such grounds. It also argued wind and solar power would be more cost-effective for bill payers compared to new gas power capacity.
However, the Court of Appeal yesterday ruled in favour of the government's decision, prompting ClientEarth, which brought the case against the government, to confirm it does not intend to take its appeal to the Supreme Court.
The move paves the way for Drax to begin development of the project. However, ClientEarth claimed the ruling nevertheless set an "important new precedent" for the approval process of major energy projects, which could force authorities to take more account of the potential climate impact of any new developments.
The environmental law NGO and a number of green groups have long argued the proposed gas plant, which is earmarked for development on the site of an old coal power station, undermines the UK's 2050 net zero emissions target as well as the government's climate leadership credentials ahead of the crucial COP26 summit in Glasgow later this year.
But the government maintained gas power capacity will be required in the UK for the foreseeable future, and that it can play a key role in the UK's net zero transition. However, it also stressed that low carbon generation options such as carbon capture and storage, clean hydrogen, and long-duration storage could eliminate the need for unabated gas power in the future.
The Department for Business, Energy and Industrial Strategy (BEIS) welcomed the Court of Appeal's ruling yesterday.
"As we transition to net zero emissions by 2050, our record levels of investment in renewables will meet a large part of the energy demand," BEIS said in a statement. "However, natural gas will still provide a reliable source of energy while we develop and deploy low carbon alternatives that can replicate its role in the electricity system."
Leadsom's decision to approve Drax's gas plant was first challenged by ClientEarth in January last year, with the group alleging the project was at odds with the government's own climate change plans and the UK's statutory target to decarbonise its economy to net zero by 2050.
The environmental law group argued that once fully operational, the Drax project could account for up to 75 per cent of emissions from the UK's electricity sector, and that as co-hosts of the critical COP26 Climate Summit the UK should demonstrate global leadership in phasing-out fossil fuels.
However, the High Court rejected ClientEarth's claims, prompting the NGO to take its case to the Court of Appeal, which yesterday upheld the government's decision to award planning permission to the project.
But despite the Court upholding the planning decision, ClientEarth said the ruling had set an important new legal precedent that current planning policy could be used to assess major energy projects based on their climate impact. Moreover, the Court ruled that the national need for every project must be assessed and that assessment must be forward-looking and 'grounded in reality', the NGO claimed.
"This ruling sets an important precedent: major energy projects in the UK can be rejected on climate change grounds, and the government must consider the carbon lock-in risk of each project," said ClientEarth lawyer Sam Hunter Jones. "Crucially, and contrary to Drax's position at the planning inquiry, the judgment confirms that decision makers must consider a project's carbon lock-in risk, that they can refuse permission on the basis of climate impacts, and that the public can raise these issues in planning inquiries."
"The Secretary of State's decision still stands and that's problematic of course, but we believe that the judgment brings vital clarity to the meaning of national planning policy," he added.
The proposed Drax plant is the latest major project to secure approval despite climate change concerns. Earlier this month the government opted against blocking plans for a new coking coal mine in Cumbria, while a legal challenge from green groups against the government's decision to approve a third runway at Heathrow Airport was also dismissed last month.
Greenpeace UK chief scientist Doug Parr said yesterday's Court of Appeal decision was "yet another failure of climate leadership from the UK government ahead of a crucial UN climate summit".
"Government is allowing the construction of Britain's first new coal mine in 30 years, and was fighting for the construction of the largest gas power station in Europe, so is sending the worst possible signal at the worst possible time," he warned. "Ministers are behaving like someone trying to galvanise a pacifist rally by waving a machinegun."
But, responding to the Court of Appeal's decision yesterday, a Drax spokesperson reiterated the energy firm's target to become a 'carbon negative' business by 2030, by utilising carbon capture (CCS) technology on its biomass plants to remove more CO2 from the atmosphere that the company generates.
It claims bioenergy with CCS could remove up to 16 million tonnes of carbon from the atmosphere each year "making a significant contribution to achieving the UK's climate targets".
"Drax Power Station plays a vital role in the UK's energy system, generating reliable electricity for millions of homes and businesses," the firm added in a statement.