This week’s edition of Energy highlights includes the publication of the 2019 Future Energy Scenar-ios report which states that ‘immediate action across all key technologies and policy areas’ is re-quired in order to meet net zero emission by 2050, the Office of Gas and Electricity Markets’ (Ofgem) announcement of its key medium term objectives for the UK energy market, the Electricity Market Reform (EMR) Delivery Body has published auction parameters, an electricity capacity report (ECR) and Average Cold Spell (ACS) methodology for the 2020 Capacity Market Auctions. Also this week, RenewableUK has revealed a report presenting potential benefits of UK onshore wind power growth and the Oil and Gas Authority (OGA) has launched the 32nd offshore licensing round with 768 blocks or part-blocks available across the UK continental shelf. We also include the latest Brexit-related legislation and some key upcoming dates for your diary.

The future energy scenarios (FES) report for 2019 has been published, concluding that reaching net zero carbon emissions by 2050 is ‘achievable’ but this requires ‘immediate action across all key technologies and policy areas’. The FES report provides an overview of key areas in decarbonisation and is published to stimulate debate to influence decisions surrounding carbon reduction and the future of the energy system. The analysis also presents an approach to achieve the net zero emission target, which includes action on electrification and transforming the gas system to accommodate hydrogen. See: LNB News 11/07/2019 103.

Ofgem announces new strategy for UK energy market

Ofgem has announced its key medium term objectives and priorities to help carry out its duty to protect the interests of consumers in a changing energy sector. The strategy covers the period until 2023, when the price cap on default tariffs is due to expire and all networks are subject to Ofgem’s next price control. It has been designed to address the ongoing transformation in the way energy in the UK is generated, used and purchased as the country transitions to a low carbon system. The strategy aims, among other things, to help decarbonise the economy at the lowest cost to consumers in line with the government’s goal to make the UK carbon neutral by 2050. See: LNB News 11/07/2019 20.

EMR Delivery Body has published auction parameters, an ECR and ACS methodology for the 2020 Capac-ity Market Auctions. The EMR Delivery Body has published the new information in respect of a three-year ahead Capacity Auction for 2022/23 (T-3) (minded to decision), one-year ahead Capacity Auction for 2020/21 (T-1) and four-year ahead Capacity Auction for 2023/24 (T-4). See: LNB News 11/07/2019 75.

Renewable energy

Directive (EU) 2019/1161 of the European Parliament and of the Council of 20 June 2019 amending Di-rective (EU) 2009/33 on the promotion of clean and energy-efficient road transport vehicles has been pub-lished in the Official Journal. See: LNB News 12/07/2019 78.

The Planning Inspectorate is inviting representations about the proposed Norfolk Boreas power station project. The project involves an offshore wind farm with a maximum capacity of 1.8GW together with asso-ciated infrastructure required to export the electricity to the national grid substation in Norfolk. The pro-posed site is approximately 73km from the Norfolk coast. Representations can be made by members of the public by registering with the Planning Inspectorate until 1 September 2019. See: LNB News 16/07/2019 27.

RenewableUK has revealed a report presenting potential benefits of UK onshore wind power growth. Statis-tics published show that introducing 35GW of onshore wind by 2035 could reduce electricity prices by 7%, create 31,000 jobs, improve UK productivity and create a £360m export industry. This will be needed to meet the UK’s 2050 net zero emissions pledge. See: LNB News 16/07/2019 71.

Oil and gas

OGA launches new offshore licensing round for 768 blocks

OGA has launched the 32nd offshore licensing round with 768 blocks or part-blocks available across the UK continental shelf. The round is open for 120 days until 12 November 2019 with decisions expected in the second quarter of 2020 and it covers blocks in the Central North Sea, Northern North Sea, Southern North Sea and the West of Shetlands. Companies can also propose additional blocks in adjacent areas for possible inclusion where applicants intend to commit to a substantial firm work programme. Deadline for those applications is 18 July 2019. See: LNB News 11/07/2019 27.

A report by the Business, Energy and Industrial Strategy Committee has concluded that the UK ‘stands no chance’ of meeting its emissions reduction targets—such as net zero by 2050—unless the government takes urgent action to revive its failing energy efficiency policy and builders are required to deliver the lat-est energy efficiency standards. The report recommends prioritising energy efficiency within the national infrastructure and calls on the government to reflect this in stricter robust building regulations—currently the report finds that builders exploit loopholes that allow them to build homes to outdated standards and sell homes that do not meet advertised energy standards. See: LNB News 12/07/2019 90.

All New-Build homes to be fitted with electric car chargepoints

The Department for Transport has published a consultation that proposes requirements for all new-build homes in England to be fitted with an electric car chargepoint. The change to building regulations aims to encourage the uptake of electric vehicles in the UK. The government is also consulting on proposals that would require all new private chargepoints to use ‘smart’ technology, encouraging off-peak charging. The deadline for both consultations is 11:45 pm on 7 October 2019. See: LNB News 15/07/2019 56.

Energy disputes

Environment analysis: Record-breaking temperatures, flooding and growing global declaration of a ‘climate emergency’ perhaps heralds the start of a new era in the political importance afforded to climate change. It is in this context that the Dutch chapter of environmental group Friends of the Earth has begun legal action against Anglo-Dutch oil company, Royal Dutch Shell, arguing that the major was long ago wise to the im-pact of climate change, and is currently responsible for one percent of all global carbon emissions. Chris-topher Badger, barrister at 6 Pump Court, outlines the key details of a crucial case, and assesses whether such litigation may be the new normal for Big Oil. See News Analysis: Friends of the Earth Netherlands case against Shell.

Environment analysis: The Committee on Climate Change (CCC) has published two reports criticising the government’s policies and progress to reducing carbon emissions, going as far as to say that it is far be-hind where it needs to be to meet its net-zero emissions by 2050 target. As this target has been set in leg-islation, David Graham, barrister at Francis Taylor Building, considers the likelihood of the government facing litigation and on what grounds. See News Analysis: Government at risk of legal action if net-zero emission target is missed.

Second carbon budget was not met through policy over-performance-study finds

CCC has published a report presenting the results of a study by Cambridge Econometrics investigating how the second carbon budget was met. The study finds that, had the EU emissions trading system cap and economic conditions reflected expectations when the second carbon budget was set, the budget would have been missed. CCC therefore concludes that the budget was not met due to policy over-performance. The study also includes some ‘lessons learned’ for future carbon budget setting, including the appropriate-ness of carrying forward emissions surpluses. See: LNB News 12/07/2019 19.

Government issues guidance on eligible projects under industrial energy transformation fund

The Department for Business, Energy & Industrial Strategy has published a guidance note outlining plans for the £315m industrial energy transformation fund (IETF) which will support businesses with high energy use to transition to a low carbon future and is part of the UK industrial strategy designed to reduce the UK’s emissions to net zero by 2050. To ensure that the fund is applied in a way that meets industry needs, the IETF is seeking information from businesses about energy-saving and carbon-saving projects they think should be eligible for funding. See: LNB News 16/07/2019 30.

SI 2019/1104: This enactment is made in exercise of legislative powers under the European Union (With-drawal) Act 2018 in preparation for Brexit. This enactment revokes a provision in the Electricity Network Codes and Guidelines (System Operation and Connection) (Amendment etc) (EU Exit) Regulations 2019 in order to address failures of retained EU law to operate effectively arising from the withdrawal of the UK from the EU. It comes into force on the day before that on which exit day falls. See: LNB News 11/07/2019 1.

 

Although few experts disagree with the proposition that the UK energy market has been problematically dominated by a half dozen companies known as the ‘Big Six’, the transition towards a more competitive and open structure has not been without its hurdles. Simone Goligorsky, senior associate and Prajakt Samant, partner, both at Reed Smith, give the overview and their thoughts on Ofgem’s supplier licensing review, and how it intends to shore-up the market against under-resourced new entrants. See News Analysis: Ofgem supplier licensing review—changes to the market entry requirements for new suppliers.

 

Green Star Energy has agreed to pay £350,000 for failing to update their records and issue welcome packs to over 1,800 new tenants, resulting in the customers being unable to access their accounts and move to cheaper tariffs. Green Star Energy failed to address the issue and did not self-report to Ofgem after they had been made aware of their failings. After Ofgem addressed the issues, Green Star Energy has reviewed their systems and addressed their deficiencies. See: LNB News 04/07/2019 37.

 

Two of the UK’s ‘Big Six’ energy suppliers, Centrica and SSE have committed to replace the entirety of their fossil fuel fleet with electric vehicles by 2030. Facilities services company Mitie has also joined the global EV100 initiative, a bid by non-profit The Climate Group to make electric transport ‘the new normal’. Head of environment at Norton Rose Fulbright, Caroline May, says the announcement is indicative of a change of attitude in the industry, with companies now committing to contribute towards a net-zero economy. See: LNB News 08/07/2019 56.

 

The European Commission has opened a consultation on the list of candidate Projects of Common Interest in oil infrastructure. The consultation will aid the EU in preparing the fourth Union list of Projects of Common Interest in energy. The consultation will close on 26 September 2019. See: LNB News 04/07/2019 30.

 

BEIS has published its NPS for geological disposal infrastructure, which is a framework document that highlights the need for nationally significant infrastructure projects (NSIPs) in relation to the geological disposal of higher activity radioactive waste in England and ways in which the government can deliver those projects. Additionally, the NPS includes planning guidance for developers of NSIPs on geological disposal infrastructure. The NPS will be utilised by the Examining Authority and the Secretary of State when considering development consent applications for geological disposal infrastructure under sections 14(1)(q) and 30A of the Planning Act 2008. See: LNB News 04/07/2019 82.

 

Council Decision (EU) 2019/1133 of 25 June 2019 on the position to be taken on behalf of the European Union in the International Partnership for Energy Efficiency Cooperation (IPEEC) with regard to the extension of the Terms of Reference for the IPEEC for the period from 24 May until 31 December 2019, has been published in the Official Journal. See: LNB News 04/07/2019 64.

 

BEIS has released a consultation on the Energy Company Obligation scheme and is seeking comment proposed changes to it. The consultation closes on 6 August 2019. See: LNB News 09/07/2019 21.

The Environmental Audit Committee (EAC) has announced that it has launched an inquiry into the net zero government which will focus on the sustainability of the government’s estate and procurement processes and how to achieve the net zero emissions target by 2050. The EAC welcomes written submissions of no more than 3,000 words by 15 August 2019. See: LNB News 04/07/2019 28.

Ofgem has launched a consultation on proposed changes to the National Grid ESO Ltd electricity transmission licence to ensure it is fit for purpose in the event of a no-deal Brexit. The proposed amendments, which include changes to wording and references to the UK’s relationship with the EU, will only be applied in the event the UK leaves the EU without a deal. The consultation closes on 2 August 2019. See: LNB News 05/07/2019 13.

 

 

With festival season underway, we look at the environmental impact of these large-scale music events and how they can be adapted to have a less damaging effect. Some festivals are already taking action to reduce their waste and carbon footprints and Jeremy Pike, barrister at Francis Taylor Building, and Richard Voke, partner and ex-regulator at Temple Bright, discuss the roles of local authorities, festival organisers and consumers in promoting environmental awareness and incorporating it into licensing decisions and onsite behaviour. Pike explains how existing legislation can best be utilised to protect the environment in large live music events, while Voke suggests how it can be improved to reflect changing consumer priorities.

 

Driving change

Indeed, in 2019, Glastonbury festival announced it was banning all on-site plastic bottle sales—including those in dressing rooms, backstage or any catering areas—to reduce the amount of plastic waste. Instead, the festival will provide free water taps and water refills for guests to bring their own containers to. As part of its Green Mission campaign, BoomTown has pledged to introduce a ‘zero waste space’ in its campsite where no tents are leftover and no rubbish will be left at the site.

 

Another concern is that loud music, bright lights and fireworks can scare wildlife and disrupt their natural behaviours including, Pike points out, legally protected areas such as sites of special scientific interest and European ‘special protection areas’. Furthermore, festivals require huge energy, water and food consumption. Shambala is attempting to address these issues by choosing plant-based milk over dairy products in 2019, building on its 2016 decision to go fish and meat free. This choice, the festival claims, is due to the environmental impact and carbon emissions of meat and dairy based products.

 

The largest impact resulting from a festival however, Pike argues, is transport, and this lies largely with the individual attendees. Indeed, the Powerful Thinking report calculated that travel typically constitutes approximately 80% of a festival’s total carbon dioxide emissions (excluding the artist’s travel which could involve plane transport). That was approximately 0.6 litres of diesel per person per day. Because of this, Pike suggests ‘there may be a debate in the future as to whether festivals should feature large numbers of international acts, because of air transport emissions’.

 

But is it enough to leave the main driver behind change to consumer choice? Voke criticises the ‘simplistic and outdated’ impression reflected by mainstream media and the law makers/enforcers. The law treats festivals as if they are still ‘counterculture exercises for rebellious young people who enjoy loud music, get drunk and stretch the narcotics related law’, Voke warns, arguing that in fact laws should be updated to reflect the changing consumer priorities.

 

So, how can the law help festivals go green?

 

Demanding environmental conditions in planning decisions

Tightening regulation over these events to enforce more environmentally-friendly practice could lie in incorporating these priorities into existing legislation over introducing new regulations. Pike points out that if a single festival, or a combination of events in one calendar on the same site, exceeds 28 days in that calendar year, or requires permanent structures, the organisers will need to obtain planning permission. The 28 day limit results from what are known as ‘permitted development rights’—ie the right to do something that would otherwise need planning permission, in this case if the activity is merely temporary, not exceeding 28 days—for the temporary use of land which are set out in Part 4, Class B of The Town and Country Planning (General Permitted Development (England) Order 2015, SI 2015/596.

 

Pike suggests that environmental impact could be incorporated into the decision to grant planning permission, by ‘including conditions which required certain products not to be used, or activities not to be permitted, in order to prevent harmful impacts such as waste, noise and so on’. The conditions could also stipulate that particular renewable, or green sources of energy be used to power the festival. Furthermore, to tackle travel, one of the biggest contributors to the carbon emissions of festivals according to Pike, he suggests that ‘car parking could be limited or prohibited, and “green travel plans” could be required in order to promote or focus on the use of public transport’.

 

These instances of compromising and involving environmental health in decisions surrounding the early states of decision making about the management of a festival, could be a hopeful option. However, the above examples are only relevant if an event or festival requires planning permission. If they do not, the decision and responsibility will lie with the local authority as special planning conditions cannot be imposed if permission is not required. One option for environmentally-conscious local authorities, Pike says, would be to ‘remove the “permitted development rights” from a particular area where a festival was regularly held, in order to require that planning permission was needed, and therefore enable conditions to be imposed’.

 

It seems that organisations and councils must ensure they are in a position to insist upon sustainable and ‘green’ festival practises on land within their jurisdiction, but ensuring this lies in the minutia of specific planning legislation.

Adding environmental conditions in licences

Environmental conditions can also be applied when granting a licence to a festival. Under the Licencing Act 2003 (LA 2003), festival organisers who want to sell alcohol or provide live or recorded music to more than 500 people after 11:00pm must acquire a ‘premises licence’. Pike suggests that ‘food and drink waste is likely to be one of the main contributors to the waste caused by a festival’, therefore ‘a premises licence under LA 2003 can also contain conditions relating to the way entertainment is provided and alcohol is sold—in particular in relation to the drinking vessels (ie plastic cups) in which alcohol is served’.

 

Tackling ‘nuisance’ and noise

Under the Environmental Protection Act 1990 (EPA 1990), a local authority has the power to stop a ‘nuisance’ which has occurred or prevent one that might occur—such as excessive noise. Loud music, as a types of human noise pollution, is known to disrupt local wildlife, and in 2017 the Department for Environment, Food and Rural Affairs (Defra) commissioned a study on the danger human noise pollution poses to UK wildlife and biodiversity. And the fact that, due to their size and that they can disturb the local residents, festivals are usually situated in fairly rural areas, where they are more likely to impact wildlife.

 

Local authorities could exert their power under EPA 1990 to place conditions limiting noise levels when granting planning permission for a music festival or similar event, and even when planning permission is not required, as Pike explains:

 

‘If planning permission is not required there would be no such limits but the local authority’s powers under EPA 1990 would allow it to serve an “abatement notice” against any actual or anticipated nuisance caused by noise. There are no noise limits set out in legislation. Whether a level of noise was a nuisance to someone at a particular location would be in the discretion of the local authority, in the first instance. Failure to comply with an abatement notice is a criminal offence.’

 

However, Voke says that the protections under EPA 1990 do not go far enough, and amount to ‘only a limited framework for environment protection and are really only used for ‘after the event’ punishment’. As current legislation stands, Voke says ‘there is no effective requirement in the festival related law to consider the wider environmental considerations such as carbon footprint and sustainability in general’.

 

Voke’s concerns raise the question of whether legislation is at heart reactive, rather than proactive regarding environmental protection. This is problematic because it waits until the damage has already been done. Voke emphasises the need for a shift in approach, saying that existing ‘regulation is being left behind in terms of effectiveness when compared with the increasing self-policing demands of the modern festival attendee’. Once again, it seems to be left up to the consumer to drive change.

 

Protected wildlife or areas

It is worth checking whether an event is eligible for an environmental impact assessment (EIA), eg if the site is a site of special scientific interest, or permitted development rights have been removed. Pike provides the example of the ‘T in the Park’ festival in Perthshire, which was told by the local authority that an EIA was required, and had to obtain planning permission to occupy a new site at Strathallan Castle in 2015. In 2016, the festival took place at the Strathallan site despite the presence of nesting ospreys (a protected species), but the festival did not return to the site in 2017.

 

This is an example of where existing protections can be utilised by local authorities to control, and reduce the damaging effect of a festival, or similar event, on the environment in their region.

 

But does current legislation provide enough protection?

 

Changing priorities

So, can festivals go green? Voke and Pike both agree that the choice ultimately lies with the consumer, with Voke going as far as to suggest that ‘the festival goers are generating the environmental framework within which such events should be constructed’. For a festival to be completely green, Pike says it would involve:

 

‘…no air travel, and festival goers would arrive by electric vehicle or by bicycle. There would only be renewable energy sources used. Food and drink would be supplied from a relatively small area around the festival site, in compostable packaging. This is likely to mean a very ‘local’ festival, possibly with only “local” artists.’

 

An example of this in action would be the ‘Howlin’ Fling’ festival on the Isle of Eigg, Scotland, Pike points out. The island where the festival is based, is powered only by renewable energy sources, and islanders—who jointly own the island outright—provide much of the food, drink and accommodation for the festival. Pike attributes the way the event is run to ‘the world-view of the island’s inhabitants’ (there are no cars or buses on Eigg), making this a real-world example of how the consumer and local authority can dictate the environmental impact a festival has on land under their control.

 

Voke says ‘it may be that soon festivals will compete against each other not only in terms of headline acts but also in terms of carbon footprints and waste/nuisance minimisation’ and indeed festivals are beginning to promote their ‘greenness’. Shambala, for example, announced in 2017 that it was the first festival to achieve a 5* Creative Green rating for its environmental performance for initiatives including:

 

As for enhancing the legal framework, Voke recommends an approach ‘along the lines of the general promotion of sustainability and environmental stewardship in the style of The Producer Responsibility Obligations (Packaging Waste) Regulations 2007, SI 2007/871 or the ill-fated Carbon Reduction Commitment (CRC)’. While neither of these changes were popular, Voke highlights that ‘at their core is an imperative to improve sustainability performance’ and this is what needs to happen in wider legislation, for carbon neutrality and effective environmental protection. For similar reading, see the Committee on Climate Change’s ‘Net Zero’ report and LNB News 02/05/2019 65.

 

Pike highlights the government’s biodiversity strategy for England, ‘Biodiversity 2020’, where it promised ‘by 2020 measures will be in place so that biodiversity is maintained, degradation halted and restoration is underway’, but expresses doubt that any of the measure will address the damage caused by festivals and big events. What both Pike and Voke agree is that consumer choice will be the key to driving change and protecting the UK environment in the future.

 

Jeremy Pike is a barrister at FTB chambers (www.ftbchambers.co.uk) specialising in planning and environmental law and local government law.Richard Voke is a partner at Temple Bright and ex-regulator now specialising in regulatory matters for organisations in dealing with regulatory bodies, such as the Environment Agency, HSE and Environmental Health.

Written by Samantha Gilbert.

This was originally published on LexisPSL Environment. For more content on hot topics and trends in environmental law, click here for a free trial.