Energy analysis: This analysis looks at the government’s 2019 Future Energy Scenarios (FES) report, published on 11 July 2019. The annual FES sets out a number of credible scenarios for the future development of the GB energy system. This analysis, written by the LexisPSL Energy team, consider some of the key limitations of the FES and what is likely to be required to beat the ‘2050 target’ of an 80% reduction in carbon emissions against 1990 levels or to achieve net zero emissions.

Environment analysis: On 2 July 2019, the government published its policy paper on the Green Finance Strategy—a strategy that ‘recognises the role of the financial sector in delivering global and domestic climate and environmental objectives’. Imogen Garner, partner in the financial services team, Glenn Hall, partner and head of the government relations and public policy team, and Rosa Mottershead, counsel in the energy, infrastructure and natural resources team, all at Norton Rose Fulbright, discuss, among other things, the opportunities created by the strategy, the implications for the financial services/banking and finance sectors, and mandatory requirements that businesses must consider.

What is the background to the Green Finance Strategy? Why now?

Glenn Hall (GH): Prior to the launch of the Green Finance Strategy, the government had led various initiatives in the area of climate and environmental issues, notably the Climate Change Act 2008, Clean Growth Strategy, 25 Year Environmental Plan, and the National Adaptation Programme. In parallel, the UK has been contributing to the development of the EU Sustainable Finance Action Plan, which contains several legislative measures designed to promote the provision of finance to investment taking into account environmental, social and governance (ESG) considerations.

Rosa Mottershead (RM): We should all be aware of the threat of climate change. To meet this threat, governments globally need to pick up the pace of change, and direct investment towards cleaner, more resilient economic growth. This will involve the reallocation of significant amounts of capital towards green investment. The government recognises the significant commercial opportunity that the green finance sector presents for the UK financial sector and the Green Finance Strategy is a step towards realising this opportunity, as well as seeking to mitigate this threat.

What is the Green Finance Strategy?

GH: The government considers the Green Finance Strategy as integral to its plans to consolidate the UK’s position as a global leader in this area and capture commercial opportunities as this important sector continues to grow. The Green Finance Strategy is broken down into three elements, referred to as greening finance, financing green and capturing the opportunity. The ultimate aim of the strategy is to stimulate investment towards the types of activities and developments that will protect the UK economy from climate-related risk, and ensure the economy remains robust in the face of these risks. The three elements work together to create incentives for financial institutions to move towards more resilient economic growth, to reduce their exposure to climate-related risks and to future-proof the economy by placing the UK at the centre of the ‘green economy.’

Imogen Garner (IG): In relation to ‘greening finance’, the aim is to ensure that the risks and opportunities from climate and environmental factors are integrated into financial decision-making and that markets for green products are sufficiently robust. The government aims to establish a shared understanding, clarify roles and responsibilities, foster transparency and embed a long-term approach, and build robust and consistent green financial market frameworks. Of particular significance, the government sets out its expectation for all listed companies and large asset owners to disclose their exposure to climate-related risk in line with the Task Force on Climate-related Financial Disclosures (TCFD) recommendations by 2022. In addition, the government intends to clarify the responsibilities of the Prudential Regulation Authority (PRA), the Financial Conduct Authority (FCA) and the Financial Policy Committee to have regard to the Paris Agreement when carrying out their duties.

GH: ‘Financing green’, describes the government’s plans to mobilise and accelerate flows of private finance into key clean growth and environmental sectors in the UK and internationally. The government’s strategy will establish robust, long-term policy frameworks, improve access to finance for green investment, address market barriers and build capability, and develop innovative approaches and new ways of working. Policies currently cover transport, power, housing, land management and energy use, and the government intends to develop further measures in these areas, such as to mobilise green finance for home energy efficiency and use the forthcoming Environment Bill to place the 25 Year Environmental Plan on a statutory footing, which will include the creation of a new Office for Environmental Protection. Various public funds will be expanded to leverage private capital for clean energy and financing natural habitats. The UK is also working with the governments of China, Brazil and Mexico to develop green finance markets, through the UK PACT (Partnering for Accelerated Climate Transitions) programme, developed by the Department for Business, Energy and Industrial Strategy.

RM: ‘Capturing the opportunity’ part of the strategy seeks to ensure that the UK continues to take advantage of the commercial opportunities arising from green finance, building on the experience of developing green innovations such as Yieldcos, green bonds, green loans and ESG exchange-traded funds. The government aims to consolidate the UK’s position as a global hub for green finance, position the UK as a leader in green innovation and data and analytics, and build skills and capabilities on green finance. This will help the UK economy be resilient in the face of climate-related risk. In order to implement this part of its strategy, the government has launched the Green Finance Institute (GFI) to develop innovative approaches to green finance through public and private sector collaboration. Other measures include launching a Home Finance Fund (making £5m available for green mortgages) as well as a Green Finance Educational Charter to build the industry’s competencies. The UK is likely to see some competition from other financial centres looking to lead in this area, so government support will be crucial to ensure the UK maintains its international status in financial leadership as we transition to a greener economy.

What implications does this have for the financial services/banking and finance sectors and beyond?

IG: The Green Finance Strategy represents the government’s commitment to transforming the UK’s financial system through accelerating green investment and incorporating climate and environmental factors into financial decision-making. This is underpinned by the broader economic transition towards mitigating the effects of climate change and environmental degradation, which presents both financial risks and opportunities for the financial services, and banking and finance sectors. There is an expectation that banks and financial services firms will consider climate change as a core financial risk, manage such risks appropriately and, in consequence, reallocate capital towards sustainable economic activities. As the UK regulators start embedding climate considerations into their duties and supervisory practices, they are likely to become proactive in scrutinising banks and financial services firms that fail to take account of climate-related financial issues. Climate risk reporting is set to become a key indicator of the overall resilience of a financial institution and ultimately of financial markets.

What opportunities are created by the strategy?

RM: In broad terms, our expectation is that the market for green services and products (including green bonds and green loans) will continue to grow. We’re already seeing the market for low carbon financial services growing at a rapid rate and the Green Finance Strategy aims to position the UK financial sector at the forefront of this market. It is estimated that the potential global market size for low carbon financial services could reach £280bn per year in 2030 and £460bn in 2050. Increased investor demand for green and climate-resilient investments will support the development of new innovative products and services, presenting a significant commercial opportunity for the UK financial sector. The government intends to support private sector innovation by creating effective regulatory and policy frameworks to deal with market failures and promote consistency, clarity and best practice, as well as by developing policies to promote the adoption and mainstreaming of green finance products and services. This will help establish benchmarking of green financial products, allowing investors to evaluate different products and act accordingly.

The government currently allocates substantial public resources to fund investment in clean energy and natural capital growth both nationally and internationally, and we expect funding models such as public-private partnerships, export credit and political risk products will be used to leverage private sector capital for green projects. The government’s portfolio of blended, innovative funds will be expanded to increase access to finance for promising green technologies and investment models. The alignment of the UK’s Official Development Assistance (the overseas aid budget) with the objectives of the Paris Agreement is expected to boost the UK’s investment into global initiatives focused on climate change mitigation, adaptation and natural climate solutions. UK businesses will be well placed to advise and assist on such initiatives.

Will there be new mandatory requirements that businesses can’t ignore?

IG: There is a potential for mandatory reporting obligations on climate change risk to become applicable to businesses, and in particular corporate issuers. The government’s expectation for all listed companies and large asset owners to disclose in line with the TCFD recommendations by 2022 may have significant consequences. The TCFD recommendations have the status of ‘soft law’ international guidance which is not legally binding on businesses. As part of his speech announcing the Green Finance Strategy, City Minister John Glen MP warned businesses that, while the government does not intend to resort to legislation straight away, it expects far greater uptake of the TCFD recommendations in the coming months. In order to consider the appropriateness of mandatory reporting, the government intends to establish a joint taskforce with UK regulators to examine the most effective way to approach climate-related disclosure. The GFI will provide ongoing guidance from the financial sector to inform the government’s strategy and so will be an important body for the industry to engage with.

How will the financial sector manage climate change as a financial risk in the long term?

IG: Financial sector firms will be expected to integrate climate and environmental factors into mainstream financial decision-making across all sectors and asset classes. Ultimately, firms will need to take strategic, board-level decisions as to how they intend to manage climate change as a financial risk. This was reflected by the recent joint declaration on climate change by the FCA, Financial Reporting Council, PRA and Pensions Regulator, which advised companies to consider the likely consequences of climate change on their business decisions, in addition to meeting their responsibility to consider their impact on the environment.

The approaches of financial sector firms must be built upon transparent and decision-useful climate-related information and a long-term approach, so there will be increased emphasis on disclosure. Compliance with the TCFD recommendations by companies is therefore vital to ensuring that financial sector firms are able to effectively evaluate and manage climate change risk, and that sufficient information is available to inform financial decision-making. In addition, stewardship of companies by institutional investors will play an essential role in this area, to monitor and scrutinise companies with regard to their records in managing climate risk.

What are we likely to see next connected with this strategy?

GH: The government is expected to review progress in greening the UK’s financial system and publish an interim report in 2020. This will consider the progress of the industry’s implementation of the TCFD recommendations, and the government may indicate whether it intends to legislate to introduce mandatory reporting obligations.

IG: In addition, we expect there to be a focus on upskilling and capacity building. In particular, the Green Finance Education charter, developed by the government in collaboration with professional bodies and the GFI, will likely result in new ESG-focused qualifications designed for industry professionals operating across the financial sector. This may lead to expectations by UK regulators that staff subject to training and competence requirements should have an ESG-focused qualification where relevant to their work. In the context of the UK’s withdrawal from the European Union, the government has endorsed the objectives of the EU Sustainable Action Plan and has retained the option of on-shoring EU legislative proposals relating to disclosures, benchmarks and taxonomy following exit day, with all three files included in the Financial Services (Implementation of Legislation) Bill.

Interviewed by Susan Ghaiwal.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

In Engie Fabricom UK Ltd v MW High Tech Projects Ltd [2019] EWHC 1876 (TCC),
the central issue was whether works carried out at a gasification power plant were ‘construction operations’ as defined by the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996).  This had a crucial bearing on whether the
adjudicator, whose decision the court was being asked to enforce, had jurisdiction to determine the dispute in the first place.
Section 105(2) of the HGCRA 1996 lists exclusions from the definition of ‘construction operations’. It includes work on a site where the ‘primary activity’ is power generation (section 105(2)(c)(i)). 

Here, the parties’ dispute arose out of a contract for the construction of a fluidised bed gasification power plant. The question was whether the sub-contract works fell within section 105(2) or whether the ‘primary activity’ was the thermal treatment
of waste.  

It was common ground between the parties that if the primary activity of the site was power generation, the project works were not ‘construction operations’ under the HGCRA 1996 and there was no legal right or entitlement to adjudicate, meaning that
the decision was without jurisdiction and unenforceable. The claimant argued that power generation was a secondary activity at the site, and therefore the s 105(2) exclusion did not bite. The defendant argued that the primary activity at the site
was power generation, and that it was necessary to look at the nature and purpose of the whole site. Numerous examples were provided including the site’s proximity to a National Grid sub-station, and the fact that the claimant itself described
the project as ‘the £200m Energy Works EfW Plant… which will power up to 43,000 homes’.

On the facts, the judge said the answer was unclear and more evidence (factual and expert) was required to determine the issue. Consequently, summary judgment under CPR 24 to enforce the adjudicator’s decision was declined.  

This case illustrates the complications behind jurisdictional challenges concerning section 105 exclusions, resulting in the parties in this case ending up in expensive (ongoing) litigation. It also highlights the importance, at the outset, of the
referring party satisfying itself both (a) that it has a right to refer a dispute to adjudication, and (b) that proper steps are taken to avoid, where possible, subsequent challenges to the adjudicator’s jurisdiction.