Environment news update - 2 September
Welcome to the latest edition of our weekly Environment Law news update. As ever, we bring you developments, insights, and analysis in the world of environmental law.
NEWS ROUND UP
Legal Challenge Dropped: Sunnica Energy Farm Moves Forward Amid Council Concerns
In July, we reported on three major solar projects that were granted development consent by the UK government during their first week in power. At the time it was reported Conservative MP, Alicia Kearns, was considering a legal challenge to the decision to grant the Mallard Pass project in Rutland. However, a legal threat over the Sunnica Energy Farm in Suffolk has now been dropped.
The Sunnica Energy Farm is one of the largest to have ever been approved in the UK and will cover 1,011 hectares across three sites in East Cambridgeshire and West Suffolk. Earlier this month, four councils (Cambridgeshire County Council, Suffolk County Council, East Cambridgeshire District Council, and West Suffolk District Council) announced they had sent a pre-action protocol letter challenging the Sunnica project.
The challenge primarily concerned the associated costs burden the project would place on these local authorities. Suffolk County Council said:
“[…] in his haste to approve the application in just a matter of days, the secretary of state ignored the council’s funding arguments […] This means that the developer, Sunnica, only has to pay a minimal amount to cover costs that will be forced upon the council, as a result of their project going ahead.”
It has since been reported Ed Miliband has responded to the pre-action protocol letter and set out the government’s intention to defend the granting of development consent for the project.
Cambridgeshire County Council and West Suffolk District Council have now withdrawn from the proceedings and Suffolk County Council announced they and East Cambridgeshire Council have been “left in an impossible position to continue” as “the cost of legal fees for the two remaining councils versus the likely financial return in a successful outcome was no longer a justifiable use of public funds”.
The Cost of Conservation: Are Bat Surveys a Necessary Burden for Developers
In recent debates, bat conservation in the UK has become a flashpoint for frustration among developers, particularly regarding the perceived costs and burdens associated with ecological surveys and mitigation measures. A recent article in the Spectator highlights this frustration, arguing that ecological consultants in both the private and public sectors are overreaching in their protections for bat species, leading to unnecessarily expensive surveys and requirements, especially when bat populations are reportedly recovering. However, a deeper examination reveals that the situation is far more nuanced than it may initially appear.
The article from the Spectator portrays bat conservation as an onerous and costly process that developers must endure often for what seems like minimal ecological benefit. The underlying suggestion is that ecological consultants may be inflating the necessity of their work driving up costs for developers and communities.
These arguments seem to resonate with some stakeholders who see these regulations (Conservation of Habitats and Species Regulations and Wildlife and Countryside Act) as a bureaucratic hurdle particularly in a time of economic growth and when housing development is seen as a critical national priority.
Contrary to the claims in the Spectator and a recent analysis undertaken by an environmental reporter together with statements from the Bat Conservation Trust paint a different picture. The recovery of some species of bats is being measured against a 1999 baseline which does not fully account for historical population crashes that may species of bats have suffered in preceding decades. The Bat Conservation say that whilst the 1999 baseline is useful for monitoring trends it does the capture the full extent of these declines leading to a potentially misleading perception of recovery. Four species of bats in the UK are currently at risk of extinction underscoring the need for continuing conservation efforts.
Some argue that the ecological surveys and mitigation measures required by law are not arbitrary or overly cautions; they are based on a legal framework designed to protect species that have been recognised as vulnerable. The Wildlife and Countryside Act and the Conservation of Habitat and Species Regulations which both underpins much of the UK’s wildlife protection efforts mandates these measures to ensure that development does not exacerbate the already precarious situation of these species.
For developers there is the dilemma of navigating conservation requirements and managing project costs. The requirement to conduct ecological surveys especially for species like bats with hibernation factors to take into account, can add unexpected time and expense to projects. This can be particularly frustrating when initial surveys suggest low bat activity, only for further surveys to reaffirm these findings at additional cost.
However, it is important to recognise that developers should engage with these regulations not as adversarial objects but as integral components of responsible and sustainable development. Developers have an important role to play striking a balanced approach that respects both the need for economic growth and the imperative of conservation. The Bat Conservation advocates for a model of development that is sustainable and mindful of its environmental impacts. This includes ensuring that bat populations which are crucial indicators of broader ecological health are protected from further decline.
As the UK government considers planning reforms and the development sector seeks to accelerate growth it is hoped that a collaborative relationship between developers ecologists and policy makers will be formed in order to achieve a balance that meets both economic and environmental goals.
Woodland carbon code and net zero
DEFRA has recently published a note on the impact of the Woodland Carbon Code (“WCC”) in the national net zero objectives (available here).
Woodland creation is a powerful tool in combating climate change and achieving the UK’s environmental goals. Trees absorb carbon dioxide as they grow, with one hectare of native woodland absorbing up to 500 tonnes of CO2 over 100 years.
The WCC is the UK’s quality assurance standard for woodland carbon projects, managed by Scottish Forestry and supported by various UK governments and experts. It provides landowners and farmers with an additional revenue stream through verified carbon units, which can be sold to companies looking to offset their emissions. Eligible projects can apply for government grants (here) for initial costs and generate long-term income from carbon units.
According to DEFRA’s note, in 2023/2024, 9,700 hectares of woodland were validated under the WCC, expected to sequester over 2.2 million tonnes of CO2 and potentially worth over £55 million to landowners. Overall, 35,000 hectares have been validated, predicted to sequester over 11.7 million tonnes of CO2, equivalent to Manchester’s annual emissions.
More information about the WCC is available in its official website.
Government decides not to defend consents for North Sea Oil and Gas Projects
The UK government has decided not to defend legal challenges against the previous administration’s approval of North Sea oil and gas projects, following the Supreme Court’s ruling on Finch, which set a precedent affecting other fossil fuel projects as these projects are now required to evaluate their scope 3 emissions.
In light of the ruling, the government will not contest Greenpeace’s legal cases against the Rosebank oil field and Jackdaw gas field.
The Offshore Petroleum Regulator for Environment and Decommissioning has stated that new environmental guidance is necessary. Consequently, assessments of environmental statements will be deferred until this guidance is in place, which is expected by spring 2025. By deferring assessments and consulting on new exploration licenses, the government aims to ensure that future decisions are informed by comprehensive environmental considerations.
The government also plans to consult on a manifesto commitment to halt new oil and gas exploration licenses. This consultation will consider the full climate impact of fossil fuel projects, aligning with the UK’s broader environmental goals and commitments to reduce greenhouse gas emissions.
Greenpeace and other climate groups have welcomed these decisions, emphasizing the importance of considering the full climate impact of fossil fuel projects. They argue that Finch’s ruling underscores the need for rigorous environmental assessments and greater accountability in approving such projects.
The decision not to defend these legal challenges is one more example of the impact of Finch’s ruling on oil and gas projects.
