Drax gas power station legal challenge fails

| 26th May 2020
Drax power station by Jonathan Brennan via Flickr, (CC BY-ND-NC 2.0).
One way to raise power prices: make consumers pay generators to keep their coal power stations running, while the Treasury taxes them, to make them close. Photo: Drax power station by Jonathan Brennan via Flickr, (CC BY-ND-NC 2.0).
ClientEarth argued green light for powerstation development was unlawful and did not take enough account of environmental targets.

We're very dissatisfied by today's judgment.

A group of environmental lawyers have lost a High Court challenge in the UK against a government decision to approve a new gas-fired power plant.

Consent was given in October last year for the construction and operation of two gas generation units and two battery storage units at the existing Drax power station near Selby, North Yorkshire.

ClientEarth brought legal action against the Department for Business, Energy and Industrial Strategy (BEIS) arguing that the decision to give the green light to the development was unlawful and did not take enough account of environmental targets.

Security

But in a ruling on Friday, Mr Justice Holgate dismissed the charity's challenge.

The judge said it was important to emphasise from the outset that it is not for the court to "consider the merits of the proposed development or of the objections made to it."

"It is only concerned with whether an error of law was made in the decision or in the process leading up to it," he said.

He added: "The claimant in this case seeks to protect environmental and health interests of great public importance which it says argue strongly against any development of the kind proposed taking place.

"But those matters are not freestanding. There are also other public interest issues which operate in favour of such development, such as its contribution to security and diversity of energy supply and the provision of support for the transition to a low carbon economy.

Rational

"Policy-making in this area involves the striking of a balance in which these and a great many other issues are assessed and weighed.

"This is carried on at a high strategic level and involves political judgment as to what is in the public interest."

ClientEarth said it will consider an appeal.

At a hearing last month, lawyers for the environmental legal charity argued the decision was unlawful for a number of reasons, arguing BEIS "misinterpreted and misapplied" the Planning Act 2008 and failed to fully consider the 2050 net zero emissions target - which was passed into law by the Government last June.

In addition, they said the department had misinterpreted policy documents on the need for the development and failed to give adequate reasons on its assessment on the need for it.

BEIS lawyers argued that ClientEarth's challenge was flawed and should be rejected adding that the department's decision letter had set out a "rational and reasoned basis for granting consent for the Drax Power project".

Dissatisfied

A panel had previously assessed Drax's application, and its report in July last year recommended that consent for the scheme be withheld. However, the Government rejected the panel's analysis and gave the go-ahead for the project.

ClientEarth in-house lawyer Sam Hunter Jones said: "We're very dissatisfied by today's judgment, rejecting our arguments against the lawfulness of the Government's decision and of its approach to assessing the project's carbon lock in risk. We will consider an appeal."

A Drax spokesman said: "The development of new high efficiency gas power at Drax would support the UK's decarbonising energy system, subject to the project securing a Capacity Market agreement to underpin the investment needed."

A BEIS spokesman said: "We welcome the High Court's ruling issued today which supports the Secretary of State's decision to grant consent for the Drax Re-Powering Project. We are going further and faster than any other major economy in taking action on climate change.

"As we transition to net zero emissions in 2050, natural gas can provide a reliable source of energy while our world class renewables sector continues to grow, supported by record levels of investment."

This Author

Alison Kershaw is a reporter with PA.

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