Memorandum submitted by the Institute
of Environmental Management & Assessment
CONSULTATION ON THE DRAFT NATIONAL POLICY
STATEMENTS FOR ENERGY (EN-1 TO 5) AND THEIR ASSOCIATED APPRAISAL
OF SUSTAINABILITY
1. INTRODUCTION
The Institute of Environmental Management and
Assessment (IEMA) is providing this key issues response to the
Department for Energy and Climate Change (DECC) consultation on
the draft National Policy Statement on Energy (NPS EN1to5). A
key issues response is being provided, at this time, to ensure
the Energy and Climate Change (ECC) Select Committee is able to
consider the views of the UK's largest body for environmental
professionals. Our response has therefore focussed on three areas
that we believe DECC and the ECC Select Committee should give
due consideration in relation to the draft Energy NPSs. The key
issues are:
(i) Draft NPSs EN-1&2 fail to set out
an effective framework that will ensure decisions made, in relation
to Nationally Significant Infrastructure Projects (NSIP) related
to fossil fuel generating capacity, do not have adverse impacts
on the UK's long-term carbon budget.
(ii) The current format of draft NPSs EN1to5 is
overly long and their current content could pose risks to the
effective operation of the Environmental Impact Assessment (EIA)
process required for the majority of applications to the IPC.
(iii) The Appraisal of Sustainability process,
undertaken for EN1-5, is considered to carry risk related to compliance
with the SEA Directive (2001/42/EC), if realised these risks would
lead to a lack of certainty and delays to decisions related to
energy infrastructure needed to allow the UK to transition to
a low carbon economy.
As a result of focussing on the key issues set
out above this response does not follow a format of responding
to the consultation questions set out within draft NPS EN1. Appendix
1 of the response does, however, indicate where text is relevant
to specific consultation questions in order to aid its consideration
by DECC.
IEMA would like to highlight that it supports
the introduction of the Planning Act (2008), the development of
NPS and the operation of the IPC. We have been actively involved
in the development of this new system since the Barker Review
providing consultation responses and advice to Government on the
developing process. We recognise the need for considerable development
of new infrastructure across the UK and the essential role this
will play in providing the basis for the UK's transition to a
low carbon economy. We aim to ensure that the approach taken to
developing NPS considers sustainable development over the long-term
and that the adopted NPS provide the IPC with an effective context
within which to make decisions related to NSIP development consent.
2. FAILURE TO
SET A
CLEAR FRAMEWORK
THAT ALIGNS
WITH THE
UK'S LONG-TERM
CARBON BUDGETS
The Issue:
Draft NPSs EN1&2 fail to set out
an effective framework that will ensure decisions made, in relation
to Nationally Significant Infrastructure Projects (NSIP) related
to fossil fuel generating capacity, do not have adverse impacts
on the UK's long-term carbon budget.
Evidence:
NPS EN1&2 set out the framework within
which the Infrastructure Planning Commission will make development
consent decisions in relation to fossil-fuel generation capacity.
Section 2.1.5 of draft NPS EN-1 indicates that:
"Given that the Government policies that
underlie NPSs have been set in accordance with the Transition
Plan and carbon budgets the IPC does not need to assess individual
applications in terms of carbon emissions against the budgets."
It would appear that the consideration of climate
change mitigation in the rest of draft NPS EN-1 has therefore
focussed on Carbon Capture Readiness or Storage (CCR/CCS) related
to fossil-fuel generation. IEMA has concerns that the draft overarching
NPS for Energy does not appear to include any expectation that
the IPC should give consideration to the anticipated levels of
embodied carbon related to the construction, operation, and decommissioning
of Energy NSIP applications. However, our greater concern is that
NPS EN1&2 fail to set out any indication of limitations
on the future proportion of UK electricity supply that should
be supplied through fossil-fuel generating stations.
This is a major concern because there is no
certainty that CCS will be proved to be technically and financially
feasible at the scale required to mitigate emissions on the scale
of fossil-fuel generating stations. As such there is no guarantee
that fossil fuel generating capacity consented prior to the Government's
review of CCS in 2018 (Section 4.7. 14 of draft NPS
EN-1) will be able to have its carbon emissions reduced in the
future.
Whilst it is arguable that the failure of the
market to secure technical and financially feasible CCS within
the next 10-15 years is a low probability, the economic,
social and environmental consequence of such a failure would be
significantly adverse. The Planning Act (2008) requires the Secretary
of State developing an NPS to do so "with the objective
of contributing to sustainable development" (Part 2,
Section 10, paragraph 2) with this section going on to make specific
reference to climate change mitigation. Given that the operational
design-life of fossil fuel generating station would be well over
25 years, and that draft NPSs EN1&2 do not set limits
on the total amount of MW of generation capacity the IPC can consent
in relation to fossil-fuel generating stations, a failure to deliver
CCS on this generation capacity would lead to significant problems
in achieving the UK's long-term legally binding carbon reduction
commitments.
As indicated above, draft NPS EN1 indicates
that the Government will review progress with CCS in 2018. It
would therefore appear that during the eight years of IPC operation
before this review is completed the UK will not have a mechanism
to monitor the potential cumulative effect of IPC consented fossil-fuel
generating stations on our legally binding carbon reduction targets.
Further, should it be considered necessary, there is currently
no clear mechanism to allow the Government to rapidly control
the amount of new fossil-fuel generation capacity consented by
the IPC. Given that sustainable development must be considered
over the long-term, and that the Planning Act requires DECC to
specifically have regard to mitigating climate change in developing
its NPS, it is not clear to IEMA that they have fully met their
obligations under the Act.
IEMA Recommendations:
(i) DECC consider whether the draft NPSs EN1&2 currently
provide sufficient protection for the UK's long-term carbon reduction
targets should CCS be found to be substantially delayed or technically/financially
infeasible by the 2018 review.
(ii) If the current drafts are found to be ineffective,
in this area, then the text in NPS EN1 and/or EN2 must
be enhanced, before they are adopted, to provide sufficient protection.
(iii) DECC consider whether a mechanism is needed
to monitor the cumulative implications of all fossil-fuel NSIP
development consents orders on the UK's long-term carbon reduction
targets.
(iv) Any such monitoring be made publicly available
and that the information is discussed with the Committee on Climate
Change to determine any necessary remedial actions.
(v) A mechanism be established that would allow
the Government to take appropriate action to ensure the IPC's
decisions, as a whole, do not have unintended negative consequences
for the UK's long-term carbon targets.
3. RISKS POSED
TO THE
TRANSPARENCY OF
THE NPS AND
THE EFFECTIVE
APPLICATION OF
EIA
The Issue:
The current format of draft NPSs EN1to5 is
overly long and their current content could pose risks to the
effective operation of the EIA process required for the majority
of applications to the IPC.
Evidence:
The draft Overarching NPS on Energy (EN-1) includes
information, Part 4, on the consideration of general impacts related
to all energy infrastructure projects. Further to this Part 2 of
draft NPSs EN2-5 include information related to the assessment
of certain environmental topics for specific energy infrastructure
applications. This information is, in part, appropriate for inclusion
within a national policy statement as it is prescribed that it
must or may be included within an NPS by Part 2, Section 5, paragraphs
(5) and (6) of the Planning Act 2008.
It is IEMA's view that the draft NPSs on Energy
(EN1-5) include information—in the form of guidance—that
the Act did not anticipate would be included as national policy.
Further, it is our view that if this guidance is adopted within
NPSs EN1-5 it could have the following implications:
(i) Constrain the IPC—The IPC's
advice on what is to be considered within the scope of a NSIP
EIA should be based on the specific environmental risks and opportunities
related to the NSIP applications, this could be constrained if
Government guidance becomes policy.
(ii) Clarity of NPS—The inclusion
of this guidance reduces the clarity of the Energy NPSs as the
overall length and transparency of NPS EN1-5 is considerably
extended through the inclusion of this information.
(iii) Focus of EIA—The approach
has the potential to undermine the quality of the EIA process
applied to NSIP applications, which should be based on the judgement
of environmental assessment professionals in agreement with key
stakeholders, including the IPC, and the public.
(iv) Updating difficulties—The ability
to update this advice to ensure it remains in-line with evolving
good practice related to each of these forms of assessment will
be limited to the formal review process for the NPSs.
In terms of constraints on the IPC the current
format of the NPS would see generic high-level guidance related
to environmental topics relevant to EIA become inappropriately
codified as national policy. If the NPS were to be finalised in
their current format the EIA process related to NSIP applications
could be required to assess environmental issues that may not
be relevant to specific applications, or require assessments to
contain a level of detail that may not be considered necessary
by the IPC. Decisions on what environmental issues must be assessed
in relation to a NSIP application should be left to those involved
with the details of each individual application (eg the IPC, applicant,
EIA consultants, public, etc). IEMA is not against the Government
providing its view on what may need to be considered, but this
should be in the form of a separate guidance document, rather
than being included within NPSs EN1-5.
IEMA would like to highlight that many of its
members work in the environmental assessment profession and that
it will be these professionals who will undertake the EIA work
related to NSIP applications. Good practice in UK EIA has, for
many years, recognised that that those leading the assessment,
in consultation with key stakeholders (as set out in Regulations
10 of the NSIP EIA Regulations (SI 2263/2009)), are best
placed to identify topics that require assessment and to define
the most effective approach to undertake that assessment. Further,
in line with the EIA Directive (85/337/EEC as amended) the EIA
Regulations related to NSIP applications allow the applicant to
seek a scoping opinion from the IPC. In making this opinion the
IPC is required to consult a large number of environmental stakeholders,
including bodies such as the Environment Agency. A scoping opinion
will provide a NSIP applicant with information specifically related
to the proposed development and the environmental sensitivities
of the location where it is proposed.
It is IEMA's view that it would be more effective
to provide this information as accompanying guidance. This would
also ensure that the guidance could be updated without the need
to undertake a formal review of one or more of the Energy NPSs.
If the guidance is retained in the adopted text of NPS EN1-5 the
ability to amend it to refer to developments in good practice
as a result of learning from future energy NSIP applications would
be limited to the formal review of each NPS. A separate guidance
document would still ensure that the IPC and those undertaking
the EIA are aware of the Government's view on the type of environmental
issues that should be considered. Any such guidance document should
be publicly available to ensure it can be referred to by all parties,
where appropriate, during the EIA process related to a NSIP application.
As can be seen from Table 1, below, the overall
length of NPS's EN1-5 could be halved if the advisory text
on general impacts (EN-1) and the topic specific assessment principles
(EN2-5) were removed. In total over 120 pages of guidance
on environmental assessment would be removed with the potential
for it to be presented in a more effective form—as Government
guidance. This would not only enhance the readability of the Energy
NPSs, but also improve the transparency of the documents ensuring
that they focus on policy relevant to energy, and on criteria
related to site selection and good design, as envisaged by the
Planning Act (2008).
Table 1
DRAFT NPS TEXT IEMA RECOMMENDS BE REMOVED
FROM NPSs EN1-5
|
| NPS | | Parts
| Number of Pages |
Total Pages in NPS |
|
| EN1 | - |
4.16 to 4.30.10 | 42
| 93 |
| EN2 | - |
2.4 to 2.10 | 8.5
| 18 |
| EN3 | - |
22.5.30 to 2.5.73 |
| |
| - | 2.6.55-2.6.219
| | |
| - | 2.7.31 to 2.7.95
| 49 | 71
|
| EN4 | - |
2.6.11 to 2.6.26 |
| |
| - | 2.7.7 to 2.7.22
| | |
| - | 2.8.8 to 2.8.12
| | |
| - | 2.9.10 to 2.9.41
| 14 | 28
|
| EN5 | - |
2.6 to 2.9.17 | 11
| 19 |
|
IEMA Recommends that:
(i) The sections of draft NPS EN1-5 set out in Table
1 are removed from the NPS and instead included as a separate
guidance document (ie Assessment Guidance for Energy NSIP).
(ii) That the proposed guidance be regularly reviewed to ensure
that it remains current and promotes up-to-date good practice
in relation to both EIA and specialist environmental topic assessments.
(iii) An advisory panel be established, made up of representatives
from appropriate professional bodies, to provide all Government
departments involved in the production of NPS with advice, on
developments in good practice EIA and specific environmental topic
assessments, to ensure guidance in this area remains up-to-date.
4. INEFFECTIVE CONSIDERATION
OF ALTERNATIVES
IN THE
APPRAISAL OF
SUSTAINABILITY PROCESS
The Issue:
The Appraisal of Sustainability process, undertaken for
EN1-5, is considered to carry risk related to compliance with
the SEA Directive (2001/42/EC), if realised these risks would
lead to a lack of certainty and delays to decisions related to
energy infrastructure needed to allow the UK to transition to
a low carbon economy.
Evidence:
Each of the AoS Reports related to EN1-5 has assessed
the same four alternatives, see below, which focus on the format
of the documentation rather than substantive issues related to
the sustainability effects of the energy policy set out within
them. The AoS Reports indicate that the consultants commissioned
to undertake the appraisal of the draft NPSs EN1-5 identified
a number of other potential alternatives (Table 1.1 in each
of the Reports). However, these tables also indicate that DECC
did not accept such alternatives were reasonable and thus chose
not to assess any alternatives beyond consideration of the format
of the documentation. As a result the only alternatives that are
considered within the AoS of draft NPSs EN1-5 are:
1. No NPS—"business as usual" scenario.
2. An NPS that only set out high level Government energy policy.
3. An NPS that a) set out high level Government energy policy
and b) defined, through generic criteria, types of location which
are unlikely (and/or likely) to be suitable for energy developments.
4. An NPS that a) set out high level Government energy policy
and b) defined, through generic criteria, types of location which
are unlikely (and/or likely) to be suitable for energy developments
and c) set out guidance on how impacts of energy developments
could be avoided or mitigated.
Our initial concerns relate to the first option (No NPS—"business
as usual" scenario) and whether it can be considered to be
a reasonable alternative, particularly as the AoS process is required
to comply with the SEA Directive (2001/42/EC). Article 5(1) of
this Directive indicates that: "an environmental report
shall be prepared in which the likely significant effects on the
environment of implementing the plan or programme, and reasonable
alternatives taking into account the objectives and the geographical
scope of the plan or programme, are identified, described and
evaluated."
Whilst Part 2, Section 5 of the Planning Act (2008)
does not require the Government to produce NPS related to Energy
the existence of the Act and actions in relation to its implementation
clearly indicate that they plan to designate an Energy NPSs. As
such, following the adoption of the Planning Act in November 2008 it
would be more appropriate to consider the Government's intention
to designate Energy NPSs as the "business as usual"
scenario. This is because the approach aligns with the existing
legal framework and the Government's stated position regards NPS.
If Option 1 is not considered to be reasonable then
the AoS process has only considered alternatives related to the
inclusion of information within an NPS document. Given that the
majority of the energy policy and sustainability requirements
repeat existing Government policy or enacted EU or UK law it is
unclear the degree to which Options 2, 3 and 4 are substantively
different. For example, the inclusion of information within NPS
EN-1 on the Habitats Directive or NPS EN-2 on the Waste
Incineration Directive will not affect the requirement that a
NSIP application will be required to comply with the legal framework
established within these Directives.
It is unclear how the preferred option (Option 4), assessed
in each of the AoS reports, can be considered to set the framework
for development consent in a manner that is substantially different
than that presented within Option 3. The difference between the
two options is the inclusion of generic high-level guidance in
Option 4 (for further information on this guidance see Section
2 of this response). Options 3 and 4 should therefore
be the same in terms of policy framework. As a result it is debatable
as to whether the difference between these options would be considered
to make them "reasonable" in terms of compliance with
the SEA Directive.
The alternatives proposed by the AoS team (Table 1.1 of
each AoS) are considered to include substantive alternatives in
relation to Government energy policy that will set the framework
for development consent of energy NSIP. IEMA believes that as
a minimum the AoS of draft NPS EN-1 should have included
an appraisal of the environmental, social and economic effects
related to alternatives around the following issues:
— Alternative views on the mix of different forms
of production that make up the UK's energy mix. The NPS sets
the context for the IPC to make decisions for all forms of generation
capacity (50MW onshore and 100MW offshore). However, the environmental
consequences in a small variation in the percentage of the energy
mix being derived from different forms of production could have
substantially different environmental consequences. For example,
a greater proportion from onshore wind would have effects on the
landscape over a considerably larger spatial scale than most other
forms of onshore generation capacity. This issue could have been
considered in the AoS.
— Demand management. Section 3.3 of draft
NPS EN-1 includes a discussion on the need case for new electricity
generation capacity. This section includes consideration of alternatives
to new large scale electricity generation (Section 3.3.16-21 EN-1).
It is therefore somewhat surprising that, whilst the overarching
NPS on energy included discussion related to such alternatives,
there is no equivalent assessment included within the AoS. It
would appear reasonable that topics discussed with the
draft NPS EN1 be open to assessment with its AoS.
It is IEMA's view that if the AoS had included appraisal
of some of the options proposed to the Government by their consultants
there would have been considerably greater evidence that the AoS
had considered reasonable alternatives. As a result of our concerns
over the approach to alternatives within the AoS process we believe
there remains a risk that the documents could be challenged in
terms of compliance with the SEA Directive. Given that one of
the aims of the new planning system, established by the Planning
Act (2008), is to provide greater certainty around infrastructure
developments and reduce the time taken to make development consent
decisions carrying such a risk forward would appear to be incompatible
with these goals. Whilst the period of challenge related to an
adopted NPS is limited to 6 weeks within the Planning Act
(Part 2, Section 13) a challenge related to compliance with the
SEA Directive via the European Court of Justice may not be limited
by this timescale. Given that a successful challenge related to
the SEA Directive is likely to lead to the NPS being found to
be unlawful, risks related to non-compliance of this Directive
should be minimised wherever possible. If it is found to be the
case that an NPS could be challenged at the European level beyond
the 6 week limit set out in the Planning Act in relation
to potential failure to comply with the SEA Directive this risk
should be mitigated.
It is IEMA's view that, whilst DECC are confident that they
have complied with the requirements of the SEA Directive the Government
should be seen to be beyond reproach in terms of compliance with
key environmental protection legislation, particularly given the
urgent need for new Energy infrastructure and its role in achieving
the objectives of the Low Carbon Transition Plan. Further, it
could be argued that ensuring compliance with relevant environmental
legislation was a necessity in order to comply with the sustainable
development requirements related to NPS set out in the Planning
Act 2008 (Part 2, Section 10).
IEMA Recommends that:
(i) DECC reconsider the risks associated with the current
AoS of NPS EN1-5 from a potential challenge to them on the
grounds of compliance to the SEA Directive requirements related
to their consideration of alternatives.
(ii) If DECC concludes that there is a risk of a successful
challenge then appropriate action is taken to enhance the relevant
aspects of the AoS before the NPS EN1-5 are adopted.
(iii) In the future all Government departments ensure that
the approach taken to the AoS of draft NPS is undertaken in a
manner that leaves the appraisal beyond reproach in terms of questions
of compliance to the SEA Directive.
5. FUTURE PROGRESS
IEMA believes that more must be done to ensure that all NPS,
particularly those related to Energy, provide the IPC with effective
advice on making decisions that do not place long-term constraints
on the UK's carbon budgets and economic development. Without an
effective mechanism to allow DECC to monitor the implications
of the cumulative effect of the IPC's decisions on the UK's carbon
budget the country's approach to its transition to a low carbon
economy are likely to be constrained.
IEMA's recommendations are set out in Sections 2, 3 and
4 of the document.
January 2010
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