Bishop Hill Hearing rules against UK renewables programme
Aug 9, 2013 Climate: Parliament Energy: wind Pat Swords writes:
You will find the attached [files 1, 2] to be of interest. In summary success has been achieved in obtaining a ruling at an international legal tribunal that the UK is in non-compliance with its legal framework and international treaty arrangements with regard to the implementation of its renewable programme (15% renewable energy target and National Renewable Energy Action Plan).
The Compliance Committee is not a Court in the normal sense, so they choose to look only at the areas of compliance which they feel concern them. In this regard;
(a) They felt unqualified to pass judgement on the CO2 savings issues, but they conceded in Point 85 that they accept that such issues are contested.
(b) They are awaiting the outcome of the forthcoming European Court Action with regard to the EU's post 20% renewable energy programme, see Point 75.
Success was not achieved with obtaining a ruling on the two projects WLATHR (road) and Carriag Gheal (wind farm). However, I am somewhat unsure of their conclusion on point 102. Yes there was public consultation, but an awful lot of turbines had been built prior to these programmes and consultations being finalised. Seemingly the Committee missed on this point, which is something we can go back on, as we are provided with an opportunity to comment before the next Committee meeting. However, the fact that the UK NREAP is non-compliant, throws these programmes into some amount of legal limbo, the Convention being an 'integral part of EU legal order', as conformed by the European Court of Justice (Case C-240/09). Therefore these rights are part of EU law and it follows that the Convention has legal force in domestic law by virtue of a Member State's obligations under EU law.
Reader Comments (21)
Slight typo Bishop.
"I'm am"?
Congratulations, Pat. You remind me of Steve McIntyre - once you decide to take up an issue, you don't let go. It must have cost you a lot of time, effort, and perhaps money to take things this far.
It is particularly satisfying to see them hoist by their own petard - the undemocratic EU rules that have come back to bite them.
Well done Pat, keep at them.
The JMT in Scotland are also going to the courts here in Scotland in attempt to stop the hideous SSE Stronelarig windfarm in the Monadhliath - New bid to block wind turbines. See Alan Sloman's blog for maps and context, but note SSE are now proposing 67 turbines, not around 140 as was thought back in 2011. Still 67 too many for one of the last big areas of wild land in north-west Europe. And once they get permission for 67, they will wait a year or two before applying for an extension and more turbines. That's what Scottish Power did at Whitelees, and SSE have done at Griffin and Calliachar.. Subsidy junkies.
Pat Swords, really excellent work—many and big congratulations!
Congratulations to Pat on a great victory. Where does that leave us regarding future proposed schemes?
And congrats too to Avich and Kilchrenan Community Council. If there's enough money in their kitties, organised campaigners against these blights on our lives and our landscapes should mail details of this step forward, together with a link to Josh's marvellous Fract Sheet 1, to every community council they can find and urge them to build upon it.
Congratulations Pat.- just shows that "small people" can still make a difference :-)
Well done Pat Swords and Christine Metcalfe. Such a gargantuan effort just to make a stance for fair play against the governmental climate change bulldozer.
@ Derek
The Convention is part of UK and National Law as well as being an International Treaty Arrangement between those 45 Parties who have ratified it and the UN. Note: The ruling on the failure of the National Renewable Energy Action Plan (NREAP) to comply with Article 7 of the Convention was directed at both the UK and the EU.
There are some complex and emerging legal issues here, but essentially one can have strategies, planning policies, etc, which are somewhat instruments of soft law. However, a plan with defined objectives to be delivered in terms of infrastructure is a different matter, in particular as the NREAP was adopted through the provisions of Article 4 of Directive 2009/28/EC on renewable energy without the necessary provisions for public participation being implemented by the EU and other Member States, such as the UK.
One could certainly point out that planning consent of any further developments to implement the content of the NREAP would be legally invalid, until such time as the NREAP is fully compliant with the requirements defined under National and Community law and International Treaty Arrangements with regard to environmental democracy and public participation.
In reality the planners will continue to seek to ignore this and plough on regardless, a failing of the planning process I will highlight in a later post. This would leave one with having to seek an injunction to stop the further continuation of the plan, e.g. planning consents, funding arrangements, until the necessary provisions of public participation are complied with for the adoption of the NREAP. These include not only Article 7 of the Convention, but also the more specific Community Law provision of Strategic Environmental Assessment. Currently I'm embroiled in this in the Irish High Court with regard to the Irish NREAP.
However, I would recommend that readers do actually have a look at the UK NREAP.
http://tinyurl.com/luaarzk
On pages 152 and 153, is the expected installed capacity of renewable generation, which by 2020 reaches 34,150 MW of installed onshore wind energy and 44,120 MW of offshore wind energy. As regards the rest of the document, the NREAP decided what was to be built to achieve the 15% target and then in its own words provided the financial and administrative model to deliver it.
In times to come (if not now), people will wonder what the hell the people who came up with this were smoking. At no stage was it worked out where all of this stuff (some 30,000 wind turbines) was to be built, what were the impacts on the environment, such as landscape, human beings, biodiversity, etc. What were the protection measures. What exactly were the objectives in terms of real CO2 savings given the horrendous inefficiencies on the grid? What were the alternatives to achieve those objectives and what was the likely evolution of the environment without implementation of the plan? All of these are key aspects of the Strategic Environmental Assessment process before such a plan can be adopted.
In fact these issued were never assessed prior to the adoption of the NREAP, as the clear philosophy was that the plan would be adopted first, there being no time to do otherwise, and these environmental assessment would be completed at a later phase. However, the Convention is quite clear, in that environmental considerations have to be incorporated into decision-making and as such public authorities have to be in possession of accurate, comprehensive and up-to date environmental information. Furthermore, public participation is mandatory under Article 7 of the Convention for such plans and programmes related to the environment and also has to take place when all options are open. In this process the public has to be provided with the necessary information to enable them to participate effectively in the decision-making, as to what is to be built around them.
Not only was this necessary information for the public not available, but the legally required public participation step on the National Renewable Energy Action Plan was by-passed. As a result a deluge of planning policies and planning consents resulted to deliver the targeted infrastructure in the plan, without the plan itself ever being subjected to the legally required environmental assessment and public participation.
Neither, for that matter, did the Renewable Energy Strategy which predated the NREAP even attempt to assess those impacts on landscape, population, etc. So was the UK public provided with the necessary information? The answer is No. Neither did the NREAP itself undergo a formal public participation step.
Instead, it was all rushed through and set in motion, which, as can be seen in a multitude of cases, has lead to real problems, which will become increasingly apparent and inevitably result that people will have to turn to the Courts.
@Pat - the figures you quote for p152-153 are energy not installed power.
Onshore is estimated at 14.89GW and offshore 12.99GW by 2020.
The progression for wind in the document is:
Onshore Offshore
2014 7.54GW 4.45GW
2015 8.71GW 5.50GW
2016 9.98GW 6.81GW
2017 11.35GW 8.31GW
2018 12.77GW 9.80GW
2019 13.84GW 11.30GW
2020 14.89GW 12.99GW
Their RESTATS Progress Datasheet (https://restats.decc.gov.uk/app/reporting/decc/datasheet) indicates things are moving even faster:
By 2014 there will be 8.2GW Onshore and 4.93GW Off (currently operational and under construction[UC]).
According to DECC REPD (https://restats.decc.gov.uk/app/pub/repd/index/tab/overview/)
the average time from approval to commissioning is 22 months so by early 2016 we will have 13.4GW On and 7.10GW Off (the capacity currently approved).
The average time for planning approval is just 10 months with an average 82% approved.
This provides an actual projection for 2017 of over 18GW On and over 14GW Off, well before the end of the decade.
These figures are without recently submitted Atlantic Array & Walney extension – another 2GW – and 1.2GW of Triton Knoll now approved.
They also do not account for the further 10GW that National Infrastructure Planning say they expect to be submitted within 6 Months.
Currently 35GW of wind “in the system” with 10GW more to come by 2014.
The graphical rate of "progress" (https://restats.decc.gov.uk/app/pub/repd/index/tab/progress/) is almost exponential particularly considering the last column for 2013 is half year only.
So we may end up with the GWh figures you quoted.
I'm far too "case-hardened" (as one of my colleagues described me) to have heroes, but Pat Swords qualifies - he is such a one. That people have to take Court action to destroy the destroyers is a "so be it" consequence of the blind arrogance of unbridled political ego. I hope the chips fall HARD upon them
I see that a EU committee has decided that bank depositors are really just unsecured creditors:
http://hat4uk.wordpress.com/2013/08/09/global-looting-the-new-eu-bailin-law-was-passed-8-days-ago-did-you-notice/
Pat is a beacon of hard-edged rationality in an insane world
Good news - congratulations & many thanks Pat :-)
@ Bills
Yes you are right, the Table is: "Table 10 (a): Estimation of total contribution (installed capacity, gross electricity generation) expected from each renewable energy technology in the UK"
The left hand column is the installed capacity and the right hand gross production.
I'm more used to looking at the figures on the Irish NREAP (7,145 MW installed in the export scenario) and got mixed up above when I looked at it initially.
However, it is still a staggering amount and your point that they may exceed the amount originally in the NREAP table is an interesting one, as this would be an 'additional plan' to the NREAP, so where is the public participation on-going on that?
I still can't get my head round why the politicians cannot grasp the following:
WHEN THERE'S NO WIND, THERE'S NO ELECTRICITY....
(Unless, of course, the Department of Energy and Climate Change really IS living up to its title, and has found a way to cause the wind to blow steadily 24/7 across the British Isles...)
@sherlock
And when the wind does blow, we can't use it.
The 35GW wind currently "in the system" plus 10GW expected within 6 months should also be considered in relation to our consumption which varies between 20GW and 60GW (average 35GW). Clearly lots of constraint required unless they turn off all the other renewables and nuclear.
@Pat
We should not forget Biomass. That is increasing even faster in comparison to NREAP predictions with 6.2GW currently approved against the 3.1GW in NREAP for 2020. Similarly Solar with current approvals equal to original 2020 predictions (2.6GW) and Ministers suggesting 10-20GW.
Examining the gross production, the NREAP predictions seem likely to be exceeded by 36,000GWh on these 4 technologies alone which would result in renewables providing more than 50% of the current (2011) electricity sales of 308,000GWh.
Nuclear then leaves very little opportunity for shale gas, whenever the wind blows.
"Pat is a beacon of hard-edged rationality in an insane world"
+1
PS - Anyone wishing to take up cudgels against the products of the wind industry should know that their known effects on protected species are outlawed by the Wildlife and Countryside Act 1981.
Link
Most birds are protected too, although the RSPB seems strangely reluctant to let this interfere with their enthusiasm for windmills, unless their initials signify the Royal Association for the Promotion of Bullshit.
@ jamesp
Good idea but would you settle for...Royal Society for the Promotion of Bullshit?
Just one worry here: would fracking be subject to the same need for public involvement? If it was I dread to think what our uninformed or misinformed public would do :(
PW
I would. No idea where the 'association' came from!
Page 2 of today's Irish Sunday Independent (Ireland's largest Sunday paper) had a little feature, see second part of content in link below:
http://tinyurl.com/l75myzu
It is important to realise that if a Member State acts outside EU law, such as circumventing the Convention and associated requirements of public participation / environmental democracy, then there are financial implications. While below is a legal appreciation, it demonstrates why this whole area is increasingly 'ticking', not least in relation to the fact that State Aid provisions have been made to the disadvantage of commercial companies, when the environmental assessments to justify this aid has not been there to either justify the planning consents or the aid itself:
http://www.publicpolicy.ie/implementing-eu-directives-how-to-avoid-costly-failures/
Another example being the planning appeal I just did in relation to ten 170 m high turbines in the Irish midlands (Cloghan, County Offaly), where using the German noise regulations TA Larm, it was possible to demonstrate that 45 houses would be exposed to noise levels, which would be considered unacceptable there. In other words, there was no way such a development would have been approved in Germany and when such developments do go ahead, which is intrinsically linked to legal failures, some will eventually end up in the Courts in compensation claims
@ Dung
Actually one should not fear such public participation, but welcome it. First of all the process of public participation is about procedural rights, it is not about the merits of one technology versus the other. For instance that the Aarhus Convention would be 'against' nuclear energy is completely wrong and wide of the mark, see below:
http://tinyurl.com/krb8bz9
All too often the so called 'environmental movement' are way out of line with what is actually the legal framework, not to mention what is reasonable. Unfortunately we also have a problem that so many in the Government agencies, responsible for environmental issues and regulation, are also completely out of line with this legal framework as well; there in lines the main problem. I saw reference made to Jeremy Wates of the European Environmental Bureau on one of the other posts here recently in relation to fracking and all I could think of was that he should know better, if indeed that is how he is behaving.
To explain, the Convention and related provisions in Community Law, such as Strategic Environmental Assessment and Environmental Impact Assessment are procedural steps.
Directive 85/337 prescribes an assessment of the environmental impact of a public or private project, but does not lay down the substantive rules in relation to the balancing of the environmental effects with other factors or prohibit the completion of projects which are liable to have negative effects on the environment. C-420/11 paragraph 46.
In other words, just because there are negative environmental impacts does not mean that this is a grounds for refusal, on the contrary there may well be overriding issues, not least to keep the lights on. Furthermore, as regards climate change it is not that there is a legislative requirement to assess it that is problematic and to be feared, on the contrary it is the inherent failure to assess it that is the problem, see for instance Attachment 3 of the below:
http://www.epaw.org/documents.php?lang=el&article=c4
When it is assessed and placed in its proper place against other priorities - guess what!
However, the problem we have is that in a vacuum created by the failure to properly assess and inform, then agendas (plus opportunism and greed) will thrive. The main problem being of course the failure of those in Government agencies, associated with environmental issues, to stick to professionalism and scientific content. To me, as long as I and others can request formally from the EU Commission in regard to the climate change claims, as to how they have ensured the transparency according to the Convention (EU law - 'accurate, up to date and comparable'), and get a reply that it was based on reaching political consensus in Cancun and Copenhagen, then we as a society are going nowhere.