RENEWABLE ENERGY IN THE

LEGAL AND POLICY CONTEXT

Stephen Morgan

Landmark ChambersSeptember 2009

TOPICS COVERED

(1) WHY THE INTEREST IN RENEWABLES?

(2) RENEWABLE ENERGY SOURCES:

- what you would expect

- what might surprise you

- the future

(3) DELIVERY: THE POLICY APPROACH

(4) DELIVERY: THE LEGAL APPROACH

1. MOTIVATIONS

• Renewable energy as part of the wider energy debate

• Why we are discussing energy:

>Fossil fuels are a finite resource

>Security of energy supply

>Climate change

THE REALITY

• RE may be in some respects “environmentally friendly” AND they may be urgently needed

• However in addition to being technically and economically viable still need planning permission & other consents

• Planning system has been overhauled and new legislation enacted: new system of Development Consent for Nationally Significant Infrastructure Projects

• Objections: local opposition & position of NE and the EA. No special treatment for RE – should there be?

2. TYPES OF RENEWABLE ENERGY

RENEWABLE AND NOT RENEWABLE: : SPOT THE DIFFERENCE?

• Arable Biomass Renewable Energy Power Station, North Yorkshire – Europe’s First Commercial Wood-Fuelled Power Station: uses willow grown on farmland across the north to generate gas to drive the stations electricity-producing turbines.

• Drax Power Station is Europe's largest coal-fired power station and has the world's largest FGD installation. The 400MW power station has six large boilers and generates one tenth of Britain's total energy demand.

THE FUTURE: THE ENERGY GAP

• Nuclear: James Lovelock’s thesis. Even if a partial solution, it is not a panacea

• The Answer: Renewables?

• Technological advances: this has meant that RE developments are entering the mainstream. But still substantial hurdles: Severn Project (tidal range): limits on solar given the climate; economics

• Future developments: not just in the existing forms but possibly developments such as osmosis?

The Norwegian company Statkraft is building the world’s first facility for osmotic power generation. Statkraft says a full-scale commercial osmotic power plant could be ready by 2015

Osmotic power is based on the natural process of osmosis. In an osmotic power plant, seawater and fresh water are separated by a membrane. The seawater draws the fresh water through the membrane, thereby increasing the pressure on the seawater side. The increased pressure is used to produce power.

3. DELIVERY: PLANNING POLICY

• PPS1 Supplement: Critical document produced in December 2007, PPS1 Supplement:

– Precedence

– Tackling climate change is a key Government priority for the planning system.

• PPS22:• Benefits of RE

t to be given sginifacnt significant weight weight

PPS1 SUPPLEMENT APPROACH

• Renewable and low-carbon energy

Renewable energy covers those energy flows that occur naturally and repeatedly in the environment – from the wind, the fall of water, the movement of the oceans, from the sun and also from biomass. Low-carbon technologies are those that can help reduce carbon emissions.

• Renewable and/or low-carbon energy supplies include, but not exclusively, those from biomass and energy crops; CHP/CCHP (and micro-CHP); waste heat that would otherwise be generated directly or indirectly from fossil fuel; energy-from-waste; ground source heating and cooling; hydro; solar thermal and photovoltaic generation; wind generation.

PPS SUPPLEMENT: PARA 25

• In selecting sites for development LPAs should have regard to:

The extent to which existing or planned opportunities for decentralised and renewable or low-carbon energy could contribute to the energy supply of development

ENERGY FROM WASTE: THE WASTE POLICY DIMENSION

• WASTE STRATEGY FOR ENGLAND 2007:

The main elements of the new strategy are to:

incentivise efforts to reduce, re-use, recycle waste and recover energy from waste;

This reflects the WASTE HIERARCHY:

• Waste prevention

• Re-use

• Recycle

• Energy recovery

• Disposal

WSE AND ENERGY FROM WASTE

• Incinerators have been found to accord with WSE and PPS 1 Climate Change Supplement

• Objectors (including FoE) rely upon encouragement in WSE for ANAEROBIC DIGESTION:Anaerobic digestion is a series of processes in which microorganisms break down biodegradable material in the absence of oxygen and is widely used to treat wastewater.[1] As part of an integrated waste management system, anaerobic digestion reduces the emission of landfill gas into the atmosphere. Anaerobic digestion is widely used as a renewable energy source because the process produces a methane and carbon dioxide rich biogas suitable for energy production helping replace fossil fuels. Also, the nutrient-rich digestate can be used as fertiliser.

Using the EU Regulation 850/2004 on Persistent Organic Pollutants (POPS) to support this

• However WSE makes it clear that it does not generally think it appropriate to express a preference for one technology over another (para. 27).

4. LEGAL FRAMEWORK

• Statutory requirement in the PA 2008 (ss. 181 & 182) to include in their development plans policies designed to secure that development in their area contributes to mitigating and adapting to climate change

• Changes to the planning system to facilitate major infrastructure projects: the IPC (Planning Act 2008)

• ENVIROMENTAL IMPACT ASSESSMENT

• STRATEGIC ENVIRONMENTAL ASSESSMENT: to ensure that environmental considerations are taken into account in evolution of the plan or programme – can lead to legal challenge Seaport Investment Limited [2007] NIQB 62

• HABITATS DIRECTIVE/BIRDS DIRECTIVE: re. SPAs and SACs – Appropriate Assessment

EUROPEAN DIMENSION

• Tension between UK policy and EU re. Incineration: energy from waste considered by UK policy as recovery and not disposal. Incinerators approved on basis of contribution to objectives of PPS1 Supplement

• Revised Waste Framework Directive (2008/98/EC)– See

Annex II which includes incineration of municipal solid waste as a Recovery Operation where the energy efficiency equals or exceeds a specified figure.

• Directive on Energy from Renewable Sources – includes biomass (the biodegradable element)

RENEWABLES OBLIGATION CERTIFICATES

• The Renewables Obligation Order came into effect in April 2002• places an obligation on licensed electricity suppliers to source an

increasing proportion of electricity from renewable sources. • Suppliers meet their obligations by presenting sufficient Renewables

Obligation Certificates (ROCs). Where suppliers do not have sufficient ROCs to meet their obligations, they must pay an equivalent amount into a fund, the proceeds of which are paid back on a pro-rated basis to those suppliers that have presented ROCs.  The Government intends that suppliers will be subject to a renewables obligation until 31 March 2027.

References

• Sustainable Energy – without the hot air by David JC MacKay• The Revenge of Gaia by James Lovelock• Renewable Energy Proposals: Hurdles to Delivery in the Future by

David Forsdick of landmark Chambers

http://www.landmarkchambers.co.uk/__data/assets/pdf_file/0009/52866/5._Renewable_Energy_Proposals.pdf

• John Litton – Landmark Chambers

http://www.landmarkchambers.co.uk/__data/assets/pdf_file/0011/52859/3._Planning_and_Climate_Change.pdf

(Landmark Chambers Website under News and Events go to Publications)