The government’s Autumn Statement 2014 (released on 3 December 2014) set out a number of environmental reforms and funding initiatives, with a twin focus on energy independence and the development of clean and renewable energy sources. Some of the key announcements in the statement were:
The government will seek to exclude renewable energy generators from benefitting from tax advantages for venture capital schemes in addition to the renewable energy subsidies they already receive. However, certain community energy generation projects will still be allowed to claim both subsidies and tax advantages.
Carbon, climate change
and sustainability p2
Energy and power p6
and management p9
Case Law update p10
Recent publications p11 Recent/upcoming events p12 Burges Salmon news p12
A new £5 million fund is to be established to provide independent evidence directly to the public on the robustness of the existing regulatory regime for shale gas.
The government is historically supportive of shale gas. The aim is that this fund should encourage public engagement (and therefore, perhaps, greater satisfaction) with the shale gas regulatory process.
£31 million of funding will be allocated to create the Energy Security and Innovation Observing System, which is intended to develop world- leading knowledge applicable to a wide range of energy technologies – particularly shale gas and carbon capture and storage.
The Department of Energy and Climate Change (DECC) is considering the potential for a future tidal lagoon electricity generation programme at Swansea Bay – which, if built, could be the first of its kind in the world. The government confirmed DECC’s announcement in October of this year that £100 million additional funding will be made available to drive a new phase of the Green Deal Home Improvement Fund over 2014-16. A new fund for private investment in operational offshore wind assets is being developed to bring private capital into the Green Investment Bank. A progress report will be given in the 2015 Budget.
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£15 million will be allocated between 2015-21 to develop a national network of charging stations for ultra-low emissions vehicles, with an additional £85 million supporting ultra-low emissions taxis, buses, and cities. £2.3 billion will be invested in flood defences over the next six years.
In addition, the Finance Bill 2015 (expected to receive its first reading in the House of Commons in March 2015):
will exclude from the carbon price support rates all fossil fuels used by combined heat and power installations to generate self-supplied electricity or electricity supplied under exemption from the requirement to hold a supplier licence; and will classify as deductible expenditure for corporation tax and income tax purposes all business contributions to Flood and Coastal Erosion Risk Management projects.
The statement was met with scepticism and criticism by certain environmental groups. Friends of the Earth stated that “The Chancellor once again put powerful interests and big polluters ahead of our health and well-being” whilst the Woodland Trust’s Chief Executive stated that mention of the natural environment was completely absent from the Chancellor’s statement. Whilst environmental groups may not have been impressed by the contents of the Autumn Statement, industry groups have welcomed some of the announcements made.
For further information please contact Michael Barlow, Partner, on +44(0)117 902 7708 or email: michael.barlow@ burges-salmon.com; or Joanne Attwood, Senior Associate on +44(0)117 902 7257 or email: joanne.attwood@burges- salmon.com.
Carbon, climate change and sustainability
Energy Companies Obligation (ECO) Orders to come into force
As we have previously reported, the Energy Companies Obligation (ECO) is an obligation on certain electricity and gas suppliers to improve domestic energy efficiency by achieving carbon savings or customer fuel bill savings. Two significant pieces of legislation relating to ECO recently came into force.
The Electricity and Gas (Energy Companies Obligation) (Amendment) (No. 2) Order 2014 (which came into force on 5 December 2014) makes a number of changes to various aspects of ECO with the aim of clarifying and simplifying the scheme to make it easier for suppliers to comply with their obligations. For example, targets and deadlines in respect of the Carbon Emissions Reduction Obligation (CERO) will be relaxed, eligibility of certain measures for CERO will be broadened and flexibility within the scheme will be enhanced
by permitting suppliers to transfer qualifying actions from one ECO obligation to another more than once.
“This provides for a new ECO obligation period to run from April 2015 to March 2017 with new targets for that period.”
The Electricity and Gas (Energy Company Obligation) Order 2014 also came into force on 5 December 2014. This provides for a new ECO obligation period to run from April 2015 to March 2017 with new targets for that period.
Burges Salmon has extensive experience in advising suppliers on their compliance obligations under the ECO regime together with the supply chain delivery energy efficiency programmes. For further information, please contact Michael Barlow, Partner, on +44(0)117 902 7708 or email: michael. firstname.lastname@example.org.
UN framework convention on climate change (UNFCCC) developments
There have been a number of developments in respect of the UNFCCC in advance of the 21st conference of the parties to take place in Paris in 2015:
EU Climate and Energy 2030 Framework – agreement reached On 24 October 2014, the European Council reached agreement on the EU Climate and Energy 2030 Framework for the period from 2021 to 2030. The Council has agreed:
to implement a binding target to ensure at least 27% of energy consumed across the EU will be from renewable sources by 2030;
an indicative non-binding EU-level target of improving energy efficiency across the EU by 27% by 2030 (to be reviewed in 2020); and to implement a binding target to reduce Greenhouse Gas (GHG) emissions by at least 40% below 1990 levels by 2030. The Council have confirmed that this will be achieved primarily by the EU Emissions Trading Scheme (EU ETS).
US and China issue carbon reduction statement
On 12 November 2014, the US and China issued a joint statement towards reaching a global agreement on international climate change.
The US has stated that it will achieve an emissions reduction of 26% by a target date of 2025. China has stated that it will achieve peak carbon dioxide emissions around 2030 with aims of beating this deadline.
This announcement has been welcomed worldwide due to the huge impact both nations have on global emissions: together with the EU targets for emissions reduction, this will account for an overall reduction of over approximately 50% globally.
EU ETS update
Market stability reserve proposal under EU ETS
The Market Stability Reserve (MSR) is intended to address the large surplus of EU ETS allowances (EUAs) on the market by automatically adjusting the annual supply of EUAs, adding or deducting EUAs from auctions once certain trigger points (linked to the total surplus of EUAs at a given time) have been reached.
On 20 October the UK government set out its policy on the MSR, proposing: an early introduction of the MSR in 2017 (rather than
2021) with a review of the MSR every five years; return of EUAs to the market only when that market comes under pressure (for example in a situation of unforeseen demand); and that
backloaded EUAs (i.e. EUAs held back from market to mitigate the surplus) be cancelled or placed into the MSR, rather than added to the market as is currently planned.
Aviation Regulations introduced
The UK has introduced amending regulations to implement further changes to the EU ETS regime in respect of aviation emissions. The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 provide that:
From 2013 to 2016 flights between EEA aerodromes and non- EEA aerodromes or in an outermost region will be excluded from the EU ETS; From 2013 to 2020, a new exemption threshold will apply to non-commercial aircraft operators emitting less than 1,000 tonnes of carbon dioxide per year; and There will be an extraordinary two year compliance cycle for 2013 emissions. This means that aircraft operators have until 30 April 2015 (instead of 30 April 2014) to surrender aviation EUAs for their 2013 flights, and until 31 March 2015 (instead of 31 March 2014) to report verified greenhouse gas emissions for those flights.
For further information on our carbon practice or to sign-up to our regular carbon law briefings, please contact Michael Barlow, Partner, on +44(0)117 902 7708 or email: michael. email@example.com or Rachel Blackburn, Senior Associate, on +44(0)117 307 6085 or email: rachel.blackburn@ burges-salmon.com.
Failing to meet recycling requirements: what are the consequences for waste collection authorities?
As we move towards 2020, when the EU-imposed target of recycling 50% of household waste will bite, waste collection authorities (WCAs) (and private sector operators) are having to contend with legislative requirements that are going to have a big impact on their services and budget.
Top of the agenda is ‘TEEP’, industry shorthand for the requirement, from 1 January 2015, for WCAs (and others who collect waste) to collect waste paper, metal, plastic and glass separately where it is technically, environmentally and economically practicable to do so.
If WCAs fail to meet this requirement they risk a number of potential consequences, including enforcement action being taken by the Environment Agency, the possibility of judicial review and in some circumstances even being forced to contribute to
financial sanctions imposed on Government by the EU. Therefore, it is important that WCAs carefully record their decision making process and supporting evidence, and if necessary, receive specialist legal advice to ensure that waste management plans are sufficiently robust to meet TEEP requirements.
For further details on the consequences of non-compliance, please look out for our forthcoming article in January’s edition of Recycling and Waste World.
On the Horizon
As part of their Waste Targets Review, on 2 July 2014, the EC adopted a legislative proposal to review recycling targets,
which could lead to a requirement for at least 70% of municipal waste to be recycled by 2030. The new measures are yet to
be adopted by the European Parliament, however, if legislated, many of these requirements are likely to fall on local waste authorities for implementation.
For further information, or to discuss any aspect of waste regulation, please contact Nick Churchward, Partner, on
+44(0)117 307 6998 or email: nick.churchward@burges- salmon.com, or Emma Andrews, Senior Associate, on +44 (0) 117 902 6697 or email: firstname.lastname@example.org.
There have been a number of developments in REACH over the last few months:
REACH and hydraulic fracturing
Companies registering chemicals used in hydraulic fracturing may soon be required to state this expressly in their REACH registration dossier to promote greater transparency. ECHA and the
European Commission are currently working together to add this requirement to the registration process. This follows a Commission Recommendation earlier in January, asking Member States to
“This is similar to the voluntary platform set up by the oil and gas industry for disclosing chemicals used in a selected number of wells in the EU.”
ensure that manufacturers, importers and downstream users of chemical substances used in hydraulic fracturing refer to “hydraulic fracturing” when complying with their REACH obligations.
Several options are being considered – for example, adding a new product category “oil and gas field fracturing products” or asking registrants to use free text fields. Substances for hydraulic fracturing are currently being registered using other general descriptors for the extraction of natural gas and oil. The revised registration system will allow the search for substances used for hydraulic fracturing purposes. A stakeholders’ consultation is expected to be organised by ECHA in 2015.
The Commission Recommendation also recommends the disclosure of information on which chemicals are applied on a well by well basis. This is similar to the voluntary platform set up by the oil and gas industry for disclosing chemicals used in a selected number of wells in the EU.
Draft CoRAP issued by ECHA
On 30 October 2014, ECHA issued a proposal for a revised and updated Community Rolling Action Plan (CoRAP) to subject 134 substances to review and evaluation by Member States under the REACH Regulation between 2015-2017. This list includes 65 newly selected substances and 69 substances from the plan adopted in March 2014, allocated to individual Member States for evaluation in each of the next three years. The EU Member State Committee is expected to issue an opinion on the plan in February 2015, with the final CoRAP adopted by the end of March 2015.
ECHA “urges all companies to start preparing now for the REACH deadline of 31 May 2018”, which concerns substances imported or manufactured in low volumes of 1 – 100 tonnes per year per legal entity.
This deadline is thought likely to involve many more substances than the earlier high volume registration deadlines, and many more SMEs are involved in producing or using the lower volumes.
There is much speculation at present that the 2018 REACH deadline could result in a large number of substances not being supported by smaller companies through the registration process, and thereby becoming unavailable through the supply chains.
Changes to the Candidate List and Annex XIV of REACH
A consultation for the addition of 10 further substances to the Candidate List for REACH Authorisation closed on 16 October 2014. A consultation on the addition of 22 more substances to Annex XIV on Authorisation closed on 30 November 2014, and covers such substances as n-propyl bromide, boric acid and lead compounds.
In July 2014, the Government issued revised and updated guidance on the Restriction of Hazardous Substances Regulations 2012 (RoHS 2 Regulation), which implement the revised RoHS Directive of 2011.
The RoHS 2 Regulation place duties on economic operators through the supply chain for Electrical and Electronic Equipment (EEE) placed on the market. In particular, economic operators – and there are differently stated duties for Manufacturers, Importers and Distributors – may not place, or make available on the market,
EEE containing lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls (PBB) and polybrominated diphenyl ethers (PBDE) in amounts exceeding the established maximum concentration values. Finished EEE must be marked with the EU CE marking.
New categories of products will be brought into the scope of RoHS over a 6.5 year period starting in 2 January 2013.
There are also special provisions about spare parts, detailed provisions for new and future exemptions, and relevant maximum concentration values for homogenous materials.
The Regulation on the Classification, Labelling and Packaging of chemical substances and mixtures (CLP Regulation) will apply significant changes from 1 June 2015. From that date:
Substances will only have to be classified under the CLP;
Mixtures must be classified, labelled and packaged according to the CLP, and not under the Dangerous Products Directive; and Safety Data Sheets for both substances and mixtures must provide for CLP classification.
The items on chemicals regulation above are extracts from a more detailed Chemicals Regulation and Product Liability Update, just issued.
For further information or to sign-up to our regular chemicals and product liability briefings please contact William Wilson, Barrister on +44 (0)117 939 2289 or william.wilson@burges- salmon.com or Simon Tilling, Senior Associate simon.tilling@ burges-salmon.com on +44(0)117 902 7794.
Energy and power Community Shared Ownership for Renewables: an update
As we have previously reported DECC’s Community Energy Strategy was published in January 2014. The strategy established a “Shared Ownership Taskforce” to drive forward the Government’s wish to see that by 2015 commercial project developers routinely offer interested communities the chance to share in the ownership of the schemes they are developing.
The Shared Ownership Taskforce published its report in November, and outlined the following key principles:
electricity generating projects over £2.5 million in capital cost (excluding grid and aviation mitigation costs) aimed mainly
at exporting power should offer interested communities the opportunity to buy into the project;
consultation discussions with the local community should be initiated at the earliest practical point in project development and where an interested local community group exists, discussions should involve this group; the amount of the project offered should be appropriate to the size and commercial viability of the project (the report suggests around 5% of larger projects and up to 25% for small projects); the Taskforce encourages developers to offer communities the chance to buy a share of a project through a community group, as well as to offer loan or debt structures to individuals; and offers of shared ownership should be made at fair market value based on the project’s projected financial performance over the life of the relevant planning consent.
The Taskforce will review progress after six months and then again after a year and if DECC’s view is that there is not sufficient progress, the government will legislate a mandatory approach under the draft Infrastructure Bill once passed.
Burges Salmon has been at the forefront of developing innovative community energy models and strategies. We have advised parties on the regulatory rules surrounding joint ventures with the community, turbine ownership scenarios as well as share offerings to the general public and community. If you require further information, please contact Ross Fairley, Partner on +44 (0) 117 902 6351 or email: ross.fairley@burges- salmon.com.
The Latest on Electricity Market Reform
Contracts for Difference
The first CfD allocation round is under way. National Grid have confirmed that a number of applicants that were determined as non-qualifying following their application have requested a review of this outcome and that it has undertaken that review and notified the affected applicants of its review decision. As a consequence
of the time required to complete this review process, a revision to the Allocation Timeline has been triggered.
For those applicants who have been deemed not eligible and had that decision confirmed, they have the opportunity to lodge an appeal to Ofgem (and must have done so by 12 December).
In the scenario where no appeals are lodged, the sealed bid window will open on 5 January 2015, with the outcome notified to generators by 2 February 2015. In the event that applicants lodge an appeal with Ofgem, it is anticipated that the sealed bid window will be opened on 18 February 2015, with the outcome notified to generators by 19 March 2015.
National Grid has announced that 62GW of generating capacity has qualified to take part in this month’s capacity market auctions. The auction process aims to secure a total of 53.3GW (derated) of new and existing generation capacity and demand side response for 2018/19. The vast majority is expected to be secured in this month’s auction with a second auction, held a year ahead of when it is required, providing the rest.
The results of the auction will be announced by DECC on 5 January 2015.
For further details on the capacity market, please see our recent article “Off and Running – The Capacity Market”.
DECC has also announced that interconnectors will be able to participate in the second four-year-ahead Capacity Market auction due to take place in 2015 to secure energy supply for
winter 2019/2020. The eligible capacity of each interconnector will be determined on a case by case basis for the Capacity Market, taking into account both their technical reliability and an assessment of the likely future direction of electricity flows at times of stress. They will participate in the auction like any other
resource and will be eligible for one year agreements and subject to the same obligations and rules of participation as domestic capacity providers. There are currently several interconnector projects in the pipeline representing about £5 billion of private sector investment by 2020.
We have advised several clients on their CfD applications and continue to monitor the progress of the electricity market reforms. For further information, please contact Ross Fairley, Partner, on +44(0)117 902 6351 or email: ross.fairley@ burges-salmon.com, or James Phillips, Partner, on +44(0)117 902 7753 or email: email@example.com.
Grace periods announced for >5MW solar post-31 March 2015
On 2 October, the Government confirmed that the Renewables Obligation would close to solar projects larger than 5MW which are not commissioned and accredited on or before 31 March 2015. However, two ‘grace periods’ have been announced:
‘The significant financial commitment’ grace period
This will allow those >5MW solar projects which satisfied certain ‘significant financial commitment’ tests as at 13 May 2014 to remain eligible for accreditation under the RO for an additional 12 months.
In order to access the grace period, the developer will need to present the following evidence to Ofgem at the time it makes its accreditation application:
a grid connection offer and acceptance of that offer, both dated no later than 13 May 2014; a written declaration by the developer confirming ownership of the land, lease of the land, any option to lease or to purchase the land or an exclusivity agreement over the land which does
“There are currently several interconnector projects in the pipeline representing about £5 billion of private sector investment by 2020.”
not permit any other person to construct a solar PV station on the land as of 13 May 2014; and
evidence that a planning application had been submitted to the relevant planning authority in respect of the project on or before 13 May 2014.
The ‘grid delay’ grace period
On 25 November, Ofgem confirmed that a second 12 month ‘grace period’ will be available for large solar projects which have suffered a grid delay.
The developer will need to present the following evidence to Ofgem at the time it makes its accreditation application:
a grid connection agreement consisting of: a grid connection offer; acceptance of that offer, and a document from the network operator which estimated or set a date no later than 31 March 2015 for delivery of the connection; a written declaration by the developer that to the best of their knowledge, the generating station would have been commissioned on or before 31 March 2015 if the connection had been made on or before the estimated grid connection date; and a letter or email from the network operator confirming that the gird connection was made after the estimated grid connection date and that, in the network operator’s opinion, the failure
to make the grid connection on or before the estimated grid connection date was not due to any breach of the grid connection agreement by the developer.
The legislation implementing these grace periods will be the Renewables Obligation Closure (Amendment) Order 2015, and a draft of this has been published by DECC.
The effect of both of these grace periods is that they will enable a project to accredit under the RO and be eligible for support at the relevant RO banding rate (currently 1.3 ROCs/MWh for ground- mounted and 1.5ROCs/MWh for building-mounted solar PV for that period) provided it meets the criteria for one of the grace periods and is commissioned and accredited between 1 April 2015 and 31 March 2016.
We have advised a number of clients on their application for a ‘grace period’ linked to the closure of the RO in 2017 and both developers and investors on the impact of the closure of the RO to large scale solar and the impact this has on both EPC and investment and/or sale and purchase agreements. For further information, please contact James Phillips, Partner on +44(0)117 902 7753 or email: james. firstname.lastname@example.org, or Emma Andrews, Senior Associate on +44(0)117 902 6697 or email: emma.andrews@ burges.salmon.com.
OFWAT’s 2014 price review
OFWAT’s 2014 price review (PR14) will establish the price and service packages that each water company must deliver from 2015-2020. Draft determinations were published earlier this year, and the deadline for final representations on those drafts passed on 3 October 2014.
PR14 was touted as a customer-led price review – unprecedented within the water sector. In practice, this meant that the business plans put forward by the water companies contained a wide variety of pricing incentives and benchmarks, which OFWAT then attempted to standardise. It remains to be seen whether the final array of incentives and benchmarks will break new ground in measuring performance or if it will prove impossible to monitor.
OFWAT published final determinations on 12 December 2014. Water companies now have a small window to appeal the determinations to the Competition and Markets Tribunal.
EA Consultation – proposed update to the draft river basin management plan
The EA is currently running the third of three consultations designed to update current river basin management plans (RBMP). RBMPs are designed to deliver integrated catchment management of all the water quality and a quantity issues that make up compliance with the Water Framework Directive’s objectives of achieving “good quality” in all EU-controlled waters by 2015. Previous EA consultations considered how the EA should work with interested parties to update the current RBMPs as well as
the most significant water management issues for each river basin district in England for which the EA is responsible.
The consultation will close on 10 April 2015 and updated plans are intended to be implemented in 2016. The consultation is available at: https://consult.environment-agency.gov.uk/portal/ho/wfd/ draft_plans/consult. If you would like assistance with responding to this consultation please let us know.
EA Consultation – draft flood risk management plans
The Flood Risk Regulations 2009 requires Flood Risk Management Plans (FRMP) to be prepared for all flood risk areas. FRMPs highlight the hazards and risk from rivers, the sea, surface water, groundwater, and reservoirs and set out how the relevant risk management authorities will work together with communities to manage flood risk.
The EA is running a consultation on draft FRMPs for each of England’s 10 flood risk districts. The consultation will close on 31 January 2015 and the first cycle of flood risk management plans are due to be published in December 2015.
The consultation is available at: https://consult.environment- agency.gov.uk/portal/ho/flood/draft_frmp/consult. If you would like assistance with responding to this consultation please let us know.
For further information on our water practice please contact Michael Barlow, Partner, on +44 (0)117 902 7708 or email: email@example.com; William Wilson, Barrister, on +44 (0)117 939 2289 or email: william.wilson@ burges-salmon.com or Joanne Attwood, Senior Associate on +44 (0)117 902 7257 or email: joanne.attwood@burges- salmon.com.
Reporting and management
Harmonised Method for Reporting the Quality of Fuels
The Fuel Quality Directive (98/70/EC) required suppliers of energy/fuels used in road transport and non-road machinery to report on Greenhouse Gas (GHG) emissions over the course of the fuel’s lifetime. The Directive was revised to form the 2009 Air Quality Directive (2008/50/EC) (the 2009 Directive) which contained provisions designed to account for the developments in fuel and engine technology. The 2009 Directive places an obligation on suppliers to ensure they are “monitoring and reporting life cycle greenhouse gas emissions per unit of energy from fuel and energy supplied”.
Draft Directive COM2014/617 on reporting requirements under the 2009 Directive (the Draft Directive) seeks to clarify methods of calculation that should be adopted in order to comply with the 2009 Directive. The Draft Directive sets out the methodology for calculation of GHG emissions and obliges Member States to
ensure that suppliers use the methodology to determine the GHG intensity of fuels that they supply, and that suppliers compare their achieved lifecycle GHG reductions to baseline emissions figures of 2010.
Although the Draft Directive does not change the substantive law relating to fuel quality, it obliges Member States to take an active
role in demonstrating EU-wide commitment to GHG reduction. The Draft Directive seeks to harmonise the type of data collected and make it easier to interpret as it is directly comparable across different suppliers and Member States.
Burges Salmon has extensive experience in advising global organisations on compliance with domestic and EU air quality regulations. For further information, please contact Sam Sandilands, Associate, on +44 (0)117 307 6963 or email: sam. firstname.lastname@example.org.
“The 2009 Directive places an obligation on suppliers to ensure they are monitoring and reporting life cycle greenhouse gas emissions per unit of energy from fuel and energy supplied.”
Case law update Non-compliance with EU air quality legislation: the UK under fire
The UK’s breach of EU air quality legislation, described as “perhaps the longest running infringement in EU history”, is beginning to catch up with the government.
Environmental NGO ClientEarth applied for judicial review in December 2011 for a declaration that the UK was in breach of EU laws limiting ambient air pollutants. The claim reached the ECJ via the Supreme Court, and in November 2014 the ECJ decided that the UK had contravened EU law by failing both to apply properly for an extension to comply with EU air quality law and to submit an acceptable air quality plan when it became clear that the levels of nitrogen dioxide mandated by the Air Quality Directive would not be met by January 2010.
The case will now go back to the Supreme Court which, according to the ECJ’s ruling, should take “any necessary measure, such
as an order in the appropriate terms” to ensure that the UK establishes and adopts an EU-compliant air quality plan. Whilst the final judgment is not expected until spring 2015, Defra has stated that its air quality plans are being revised in order to achieve compliance in the shortest possible time.
Additionally, the European Commission (EC) initiated infringement proceedings against the UK in February 2014 for non-compliance with the Directive. This referral could result in the ECJ imposing a financial penalty in the region of £300 million a year on the UK. This is of particular concern to local authorities, because of suggestions from central government that powers may be exercised under the Localism Act to require them to pay a share of infraction fines.
For a more detailed article considering significant failures in air quality regulation please see our In House Lawyer article. We will also be preparing a short item for local authorities on the Localism Act issue. For further information on either of these, please contact William Wilson, Barrister, on +44(0)117-939-2289 or email: email@example.com.
Court affirms the legality of the early termination of the Renewables Obligation Scheme
In October this year, DECC announced that it was terminating the Renewables Obligation Scheme from 1 April 2015, two years ahead of schedule. To mitigate the effect of the policy change, a grace period was granted to projects that satisfied certain conditions.
In Solar Century Holdings Limited & others v Secretary of State for Energy and Climate Change, the claimants (a group of companies engaged in the installation of photovoltaic panels) challenged DECC’s decision by way of judicial review on four grounds:
The closure of the scheme was beyond the power of the Electricity Act 1989 i.e. it was ultra vires; The pre-legislative statements by the Government constituted a binding assurance; There was a legitimate expectation that the RO scheme would continue until 2017 and the Government had not provide sufficient justification for doing otherwise; and The grace period scheme was retrospective and unlawful. The court rejected the claim on all four grounds.
This is the latest in a series of challenges to change in Government energy policy. In 2012, solar groups succeeded in challenging the Government’s cuts to “feed-in tariffs” for household solar schemes.
As with all market mechanisms, Government decisions will create winners and losers, and in the energy sector at least, those who are losing out are increasingly willing to resort to the courts. Burges Salmon has a dedicated environment and energy disputes team with experience in both challenging and defending Government decisions in the courts.
“As with all market mechanisms, Government decisions will create winners and losers, and in the energy sector
at least, those who are losing out are increasingly willing to resort to the courts.”
Court rules on Water Framework Directive cost of recovery
The EU Water Framework Directive, since its agreement in 2000, has strengthened the use of market-based instruments as a tool of environmental policy. One key feature is the use of economic pricing mechanisms, designed to ensure that water users pay the full costs associated with their water use.
In September this year, the case European Commission v Federal Republic of Germany considered the cost-recovery provisions in the Directive for the first time. The EU Court of Justice decided that Member States have considerable discretion not to apply them
to many areas of water use. The case arose from a Commission claim that Germany had not fully transposed the Directive. This was because it had excluded certain important activities from the cost- recovery requirements, such as navigation and water impoundments for hydroelectric power. The court found that the Directive established common principles, however it was left to Member States to adopt individual measures – and economic instruments were just one of a number of mechanisms available – to achieve these principles.
Court extends historical asbestos industry protection
A recent Supreme Court judgment has considerably extended the scope of the Asbestos Industry Regulations 1931 (the 1931 Regulations) to include workers exposed to asbestos regardless of whether they were or were not directly employed at the site and regardless of whether the site was or was not part of the asbestos industry.
The 1931 Regulations provide protection for industrial workers exposed to asbestos between 1931 and 1970. The claimant in McDonald v National Grid Electricity Transmission plc claimed that his
employer had breached its statutory duty under the 1931 Regulations for his exposure to asbestos whilst working as a lorry driver collecting waste from Battersea Power Station in the 1950s. His employer claimed that the 1931 Regulations did not apply because the site was not engaged primarily in the manufacture of asbestos. The Supreme Court held that the 1931 Regulations offered protection to all workers
– including those who were not directly employed but who happened to be present at the premises, such as a delivery driver in this case, and all factories processing asbestos – not just factories that were part of the asbestos industry. This has wide ranging implications for a variety of historical operators.
For further information on our specialist environmental or health and safety litigation practices, please contact Michael Barlow, Partner, on +44(0)117 902 7708 or email: michael. firstname.lastname@example.org, or Simon Tilling, Senior Associate, on +44 (0)117 902 7708 or email: simon.tilling@ burges-salmon.com.
Marine Energy Projects - our updated brochure listing our experience in this area
Quaystone - our Construction newsletter focuses on shale gas opportunities and hurdles
Failing health: why air quality legislation is not working (our article for In House Lawyer - September issue)
Off and Running - The Capacity Market (article by James Phillips and Premila Patel for Project Finance International Europe Report)
Engine emissions from non-road mobile machinery: changes to regulatory regime on the horizon (our article from In House Lawyer - December issue)
Energy from Waste Essay (article by Nick Churchward on Contracts for Difference in the EfW sector)
DEFRA has just announced that it intends to make enforcement undertakings available for all offences under the Environmental Permitting Regulations 2010 from April 2015. This is subject to Parliamentary approval but is a significant change in the way that the enforcement of the majority of environmental regulatory offences can be dealt with. We will be providing a full briefing in the New Year.
Editor Environment and Energy Law is collated and edited
Attwood, Senior Associate. For further information or to receive further details of any events
and publications please contact Joanne on +44(0)117 902 7257
or email: joanne.attwood@ burges-salmon.com.
Rachel Blackburn, Senior Associate presented on 18 September 2014 on the new Energy Savings Opportunity Scheme (ESOS), covering the scheme’s structure and addressing challenges faced by companies caught under ESOS.
Burges Salmon and Women in Property are hosting a Breakfast Seminar on Monday 2 February 2015 covering flooding, legal responsibility issues
Burges Salmon news Bristol has been awarded the title of European Green Capital 2015, taking over the accolade from Copenhagen. Bristol City Council has set
up a separate company (Bristol 2015) to deliver a series of events throughout the year leading to COP21 in Paris. Burges Salmon was the first
corporate sponsor and is helping Bristol 2015 to deliver these events.
for landowners in relation to flooding and connected issues with speakers from Burges Salmon and ENVIRON environmental consultants. The event will be held at our Bristol office.
For more information or to book your place please contact Ella Curnow, Solicitor, on +44 (0) 117 307 6814 or email email@example.com.