The Energy NPSs set out the framework for the approval of energy-related Nationally Significant Infrastructure Projects (NSIPs). The Good Law Project's claim for judicial review seeks to suspend the NPSs before a full review. Its complaint is that the NPSs as drafted have supported the approval of a number of new gas fired power stations in conflict with the government's net zero target.
As a result of the judicial review brought in March, on 25 September 2020 the government confirmed that it will review the Energy NPSs. However, the government has said the Energy NPSs will not be suspended whilst the review is carried out. The claimants in the judicial review are continuing with their claim that the Energy NPSs should be suspended pending the government's review.
The Energy NPSs set out the framework for the approval of energy related NSIPs. The judicial review, brought by the Good Law Project (GLP) and others, claims that these forced a presumption in favour of fossil fuels and fail to take into account a number of commitments by the government to tackle the climate crisis. This includes the Paris Agreement and the Net zero by 2050 commitment enacted by Parliament in 2019.
Reviewing the Energy NPSs
If the Energy NPSs are suspended pending review there will be a significant disadvantage to any new fossil fuel developments in the pipeline. The Secretary of State is required to take in to account any matters which they think are relevant and important to their decision and, without an NPS, developments will lack clear policy support for decision making. This will make it harder for those who operate in the energy sector to predict the requirements and outcomes of Development Consent Orders because NPSs have considerable weight when establishing the need for energy infrastructure.
The judicial review hearing to decide whether they should be suspended is currently scheduled for November.
It is possible that this will impact on the Energy White Paper which, although delayed from 2019, is due to be published in the autumn of 2020. However this was scheduled to be alongside the Chancellor's Autumn Statement which has since been postponed.
Osborne Clarke comment
This challenge to the Energy NPS comes on the back of a challenge to the Airports NPS made by Plan B and others. In that challenge the Court of Appeal declared that the Secretary of State had acted unlawfully by failing to consider the UK's commitment under the Paris Agreement when using the Airports NPS to support the expansion of Heathrow airport. The Airports NPS was suspended pending review by the Secretary of State. Heathrow Airport Ltd appealed this decision to the Supreme Court. Arguments were heard in early October with a Supreme Court decision expected in early 2021.
These two cases represent a fundamental challenge to the government's policy statements and commitments to climate change. It places them in direct conflict with its actual decision making on development projects that, at the least don't support those objectives, and at worst undermine the zero carbon challenge.