Public participation and climate change infrastructure

Journal of Environmental Law

Volumn 25, Issue 1, 2013, Pages 33-62

  Lee, Maria ^a   Armeni, Chiara ^a   de Cendra, Javier ^a   Chaytor, Sarah ^a   Lock, Simon ^a   Maslin, Mark ^a   Redgwell, Catherine ^a   Rydin, Yvonne ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

Author keywords

Carbon capture and storage; Climate change; Infrastructure; Planning; Public participation; Technology; Wind power

Indexed keywords

CARBON SEQUESTRATION; CLIMATE CHANGE; ENVIRONMENTAL PLANNING; ENVIRONMENTAL POLICY; EUROPEAN UNION; LAW ENFORCEMENT; LOCAL PARTICIPATION; MITIGATION; STRATEGIC APPROACH; WIND POWER;

EID: 84874794370     PISSN: 09528873     EISSN: 1464374X     Source Type: Journal    
DOI: 10.1093/jel/eqs027     Document Type: Article

References (145)

1. This is implicit in much government policy, see, for example, HM Government Carbon Plan (December 2011). This plan is updated online, see 54accessed 14 August Note also the establishment of a Technology Mechanism in Decision 1/CP.16 The Cancun Agreements: Outcome of the work of the Ad HocWorking Group on Long-term Cooperative Action under the Convention (Cancun, 2010).http://www.decc.gov.uk/en/con tent/cms/tackling/carbon_plan/carbon_plan.aspx2012
2. We have deliberately not defined the 'public' in this article, to avoid premature conclusions as to what sort of process might be required; we use the plural to reflect the heterogeneity of those who may participate.
3. Reflecting the three pillars of the Aarhus Convention, UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 2161 UNTS 447.
4. From a different perspective, Energy and Climate Change Select Committee, UK Energy Supply: Security or Independence? (Eighth Report of Session 2010 12, HC 1065) observing that energy users 'are perhaps not as well understood as the technologies that make up the supply side of the system', 4.
5. In the context of adaptation, see Roger Few, Katrina Brown and Emma L Tompkins, 'Public Participation and Climate Change Adaptation: Avoiding the Illusion of Inclusion' ) 7 Climate Policy 46; in these circumstances, participation is always more likely to be about 'means', rather than an 'end' in itself.
6. See classically, Sheila Arnstein, 'A Ladder of Participation' (1969) 35 Journal of the American Planning Association 216.
7. Discussed in Maria Lee, 'Beyond Safety? The Broadening Scope of Risk Regulation' (2010) 63 Current Legal Problems 242.
8. Susan Owens, 'Siting, Sustainable Development and Social Priorities' (2004) 7 Journal of Risk Research 101.
9. For the language of repeat players and one shotters, in the different but related context of legal rights see Marc Galanter,'Why the Haves Come Out Ahead: Speculations on the Limitsof Legal Change' (1974) 9 Law and Society Review 165
10. For example, the role of neighbourhood planning in the Localism Act 2011. The Localism Actis not straightforward in this respect, however; fordiscussion, see Antonia Layard, 'TheLocalism Act 2011: What is"Local"and How Do We (Legally) Construct It?' (2012) 14 Environmental Law Review 134.
11. For a sense of the scale of the challenge, see Department of Energyand Climate Change2050PathwaysAnalysis(2010)5http://www.decc.gov.uk/assets/decc/What%20we%2do/A%20low%20carbon%20UK/2050/216-2050-pathways-analysis-report.pdf4 accessed 6August 2012; International Energy Agency,World Energy Outlook 20115http://www.worldenergyoutlook.org/4 accessed 6 August 2012; KevinAnderson and Alice Bows, 'Beyond"Dangerous" Climate Change:EmissionScenarios for a NewWorld' (2011) 369 PhilosophicalTransactions of the Royal Society A 20.SeegenerallytheNational Policy Statements forenergy, discussed below.The Committee on Climate Change approach to carbon budgets (seeFourth CarbonBudget: Reducing emissions through the 2020s(December2010); Meeting Carbon Budgets:Ensuring a Low-Carbon Recovery(Second Progress report to Parliament, June 2010), all availableat5http://www.theccc.org.uk/reports4accessed 6 August 2012)require carbon emissionsfrom electricity supply to be close to zeroby the end of the 2020s.
12. Antonia Layard, 'The Localism Act 2011: What is "Local" and How Do We (Legally) Construct It?' (2012) 14 Environmental Law Review134.
13. For a sense of the scale of the challenge, see Department of Energy and Climate Change, 2010http://www.decc.gov.uk/assets/decc/What%20we%20do/ A%20low%20carbon%20UK/2050/216-2050-pathways-analysis-report.pdf
14. International Energy Agency,World Energy Outlook 20115 accessed 6 August 2012http://www.worldenergyoutlook. org/4
15. Kevin Anderson and Alice Bows, 'Beyond "Dangerous" Climate Change: Emission Scenarios for a NewWorld' (2011) 369 Philosophical Transactions of the Royal Society A 20. See generally the National Policy Statements for energy, discussed below. The Committee on Climate Change approach to carbon budgets (see Meeting Carbon Budgets: 3rd Progress Report to Parliament (June 2011)
16. The Fourth Carbon Budget: Reducing emissions through the 2020s (December 2010)
17. Meeting Carbon Budgets: Ensuring a Low-Carbon Recovery (Second Progress report to Parliament, June 2010), all available at54accessed 6 August 2012) require carbon emissions from electricity supply to be close to zero by the end of the 2020s.http://www.theccc.org.uk/reports
18. Of a range of possible sources, see Commission,'White Paper on European Governance' COM 428 final2001
19. House of Lords Select Committee on Science and Technology, Science and Society (3rd Report of Session 1999^2000 HL-38)
20. UK Sustainable Development Strategy, A Better Quality of Life (1999); and Aarhus Convention (n 3).
21. See for example Andy Stirling, "'Opening Up" and "Closing Down": Power, Participation and Pluralism in the Social Appraisal of Technology' (2008) 33 Science, Technology and Human Values 262
22. Brian Wynne, 'Public Engagement as a Means of Restoring Public Trust in Science ^ Hitting the Notes but Missing the Music?' (2006) 9 Community Genetics 211.
23. See for example Energy and Climate Change Select Committee, Low Carbon Technologies in a Green Economy (Fourth Report of Session 2009^10 HC-193).
24. On the fragmentation of knowledge and expertise in regulation, see Julia Black, 'Decentring Regulation: Understanding the Role of Regulation and Self-Regulation in a "Post-Regulatory" World' (2001) 54 Current Legal Problems 103.
25. Frank Fischer, Citizens, Experts, and the Environment: The Politics of Local Knowledge (Duke University Press 2000)
26. John Dryzek, The Politics of the Earth (2nd edn OUP 2005
27. For example Graham Smith, Deliberative Democracy and the Environment (Routledge 2003).
28. Jenny Steele, 'Participation and Deliberation in Environmental Law: Exploring a Problem-solving Approach' (2001) 21 Oxford Journal of Legal Studies 415.
29. See Julia Black, 'Proceduralizing Regulation: Part I' (2000) 20 Oxford Journal of Legal Studies 597
30. Proceduralizing Regulation: Part II' (2001) 21 Oxford Journal of Legal Studies 33.
31. See, for example, John Dryzek, Deliberative Democracy and Beyond: Liberals, Critics, Contestations (OUP 2000).
32. Jane Holder, Environmental Assessment: The Regulation of Decision Making 2004).
33. Yvonne Rydin, Conflict, Consensus and Rationality in Environmental Planning: An Institutional Discourse Approach (OUP 2003) explores the potential and the complexity of this.
34. Sheila Jasanoff, 'Transparency in Public Science: Purposes, Reasons, Limits' (2009) 69 Law and Contemporary Problems 21
35. Yvonne Rydin and Mark Pennington, 'Public Participation and Local Environmental Planning: The Collective Action Problem and the Potential of Social Capital' (2000) 5 Local Environment 153.
36. Cass Sunstein, 'Deliberative Trouble? Why Groups Go To Extremes' (2000) 110 Yale Law Journal 71.
37. See, for example, Black (n 19).
38. On the ambivalence in the UK, see for example Alan Irwin, 'The Politics of Talk: Coming to Terms with the "New" Scientific Governance' (2006) 36 Social Studies of Science 299.
39. Climate Change Act 2008, ss 4^10, 26^27 and 14 and 56, respectively.
40. Climate Change Act 2008, pt 2. Mark Stallworthy, 'Legislating against Climate Change: A UK Perspective on a Sisyphean Challenge' (2009) 72 Modern Law Review 412.
41. Aileen McHarg, 'Climate Change Constitutionalism? Lessons from the United Kingdom' (2011) 2 Climate Law 469.
42. We have considered the following documents for the purposes of this section: CCC, Renewable Energy Review (May 2011) 54 accessed 6 August ; the carbon budget documents (n 11). DECC, Planning our Electric Future: A White Paper for Secure, Affordable and Low-Carbon Electricity (July 2011) 54 accessed 6 August 2012; UK Renewable Energy Roadmap (July 2011); 4th Carbon Budget (May 2011) 54 accessed 6 August 2012; Art 4 Action Plan; HM Government Carbon Plan, (n1); First Progress Report on the Promotion and Use of Energy from Renewable Sources for the United Kingdom: Article 22 of the Renewable Energy Directive 2009/28/EC (no date) 54accessed 6 August 2012. DECC, CCS Roadmap: Supporting Deployment of Carbon Capture and Storage in the UK (April 2012)http://www.theccc.org.uk/reports,http://www.decc .gov.uk/assets/decc/11/policy-legislation/emr/2176-emr-white-paper.pdf,http://www.decc.gov.uk/en/content/cms/emissions/carbon_budgets/carbon_budgets.aspx,http://www.decc.gov. uk/assets/decc/11/meeting-energy-demand/renewable-energy/3992-first-progress-report-onthe- promotion-and-use-of-pdf2012
43. Clean Coal: An Industrial Strategy for the Development of Carbon Capture and Storage Across the UK (March 2010)
44. UK Carbon Capture and Storage (CCS) Commercial Scale Demonstration Programme: Delivering Projects 2^4 (further information) (December 2010)
45. Towards Carbon Capture and Storage: Response to Consultation (April 2009)
46. Carbon Capture ReadinessçA Guidance Note for Section 36 of the Electricity Act 1989 Consent Applications (November 2009)
47. A Framework for Developing Clean Coal (April 2009); all available at 5ttp://www.decc.gov .uk/publications/DirectoryListing.aspx?tags1/424
48. (n 31) 4344. See also DECC, Towards Carbon Capture and Storage (n 31) 54 accessed 6 August 2012, where Government accepted the suggestion of some respondents that if regulation is needed, it 'should be light touch' [3.9], [3.21].http://webarchive .nationalarchives.gov.uk//http://www.berr.gov.uk/files/file51115.pdf
49. DECC, Overarching National Policy Statement for Energy (EN-1) (2011)http://www.decc.gov .uk/en/content/cms/meeting_energy/consents_planning/nps_en_infra/nps_en_infra.aspx4
50. (n 31).We might note that in the Government's Draft Carbon plan (March 2011), one of the six principles is to: 'Be inclusive: Our efforts to cut greenhouse gas emissions should not be forced through top down by Government. We should make this change by enthusing our whole society, in line with our commitment to localism', [1.5]. This has completely disappeared from the December 2011 version. Both versions are available at54accessed 6 August 2012.http://www.decc .gov.uk/en/content/cms/tackling/carbon_plan/carbon_plan.aspx
51. (n 31) 107. See also the discussion of financial benefits to communities, text to (nn 45^47) below.
52. This seems to be recognised in respect of transport, 3rd Progress report (n 11) 28.
53. (n 31) [3.2]. This document includes a 'planning and consenting section'on each of eight technologies. Given that the Roadmap is explicitly about how government will 'tackle the non-financial barriers to renewables deployment', [1.3], however, we might have hoped for more reflection on the role of publics in planning.
54. DECC, CCS Roadmap (n 31) [6.3].
55. This action plan sets out a timetable for action, with no time explicitly set aside for public participation, http://www.decc.gov.uk/en/content/cms/emissions/ccs/facilitating/facilitating .aspx4
56. DCLG, National Planning Policy Framework (2012), 54accessed 6 August 2012. The NPPF is directed at local authorities and does not apply to NSIPs consented under the Planning Act 2008, although it may be a material consideration.http://www.communities.gov.uk/documents/ planningandbuilding/pdf/2116950.pdf
57. (n 31) 28. Renewable-UK, A Community Commitment: The Benefits of OnshoreWind (February 2011) http://www.bwea.com/pdf/publications/CommunityBenefits.pdf
58. Energy and Climate Change Select Committee (n 14), [56]
59. Aileen McHarg and Anita Ronne, 'Reducing Carbon-Based Electricity Generation: Is the Answer Blowing in the Wind?' In Donald N Zillman and others (eds), Beyond the Carbon Economy: Energy Law in Transition (OUP 2007) 303.
60. (n 31) [3.26]. See also DECC, First Progress Report (n 31) 16.
61. See, for example, Noel Cass, Gordon Walker and Patrick Devine-Wright , 'Good Neighbours, Public Relations and Bribes: The Politics and Perceptions of Community Benefit Provision in Renewable Energy Development in the UK' (2010) 12 Journal of European Public Policy 255
62. Jennifer C Rogers, 'Public Perceptions of Opportunities for Community-based Renewable Energy Projects' (2008) 36 Energy Policy 4217.
63. It is not constrained by statute, s 10 Climate Change Act 2008.
64. See, for example, the membership of the Agriculture and Environment Biotechnology Commission http://webarchive.nationalarchives.gov.uk/20100419143351/http://www.aebc .gov.uk/2012
65. The Royal Commission on Environmental Pollutionhttp://webarchive.nationalarchives.gov.uk/20110322143804/http://www.rcep.org.uk
66. Currently the Science Advisory Council 5http://sac.defra.gov .uk/4
67. See the discussion in Maria Lee and Carolyn Abbot,'The Usual Suspects? Public Participation under the Aarhus Convention' (2003) 66 Modern Law Review 80.
68. Irwin (n 27).
69. The Ministerial Foreword to the NPPF (n 44) (applying to projects that are not NSIPs) describes planning as a 'collective enterprise'.
70. UK territorial waters are up to 12 nautical miles from the coast, with functional jurisdiction extended beyond, to the international law maximum of 200 nautical miles, including for the 'renewable energy zone', s 8(4) EnergyAct 2004.
71. Planning Act 2008, pt 3.
72. Directive 2010/75/EU on industrial emissions (integrated pollution prevention and control) OJ L334/17, art 362010
73. EN-1 (n 37), [4.7]. For detailed discussion, see Chiara Armeni, Case Studies on the Implementation of Directive 2009/31/EC on the Geological Storage of Carbon Dioxide: United Kingdom (UCL 2011), 54accessed 6 August 2012.http://www.ucl.ac.uk/cclp/pdf/CCLPEUCaseStudies Project-UnitedKingdom.pdf
74. For example, Hansard 10 December Column 28, Hazel Blears MP.2007
75. DEFRA, Marine Policy Statement (March 2011) 5accessed 6 August 2012.http://www.defra.gov.uk/news/2011/ 03/18/marine-policy-statement/4
76. Windfarms and associated infrastructure need a lease from the Crown Estate, which owns all the seabed up to 12 nautical miles and has vested sovereign rights to explore and exploit the natural resources of the UK continental Shelf.
77. EN-1 (n 37); DECC, National Policy Statement for Fossil Fuel Electricity Generating Infrastructure (EN-2) (2011); National Policy Statement on Renewable Energy Infrastructures (EN-3) (2011), all available at http://www.decc.gov.uk/en/content/cms/meeting_energy/consents_planning/ nps_en_infra/nps_en_infra.aspx
78. (n 58) [3.3.31],Towards CCS [5.6]. Note that this is explicitly due to concerns about 'public anxiety', see DECC, CCS Roadmap (n 31) [3.3].
79. See discussion in Claire Haggett, 'Over the Sea and Far Away? A Consideration of the Planning, Politics and Public Perception of Offshore Wind Farms' (2008) 10 Journal of Environmental Policy & Planning 289
80. Karen Scott, 'Tilting at Offshore Windmills: Regulating Wind Farm Development Within The Renewable Energy Zone' (2006) 18 Journal of Environmental Law 89.
81. Directive 2001/42 on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L197/30, art 2(a). SEA applies to a plan or programme adopted or prepared by an 'authority'and 'required by legislation, regulation or administrative provisions'.
82. Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment (codification) [2012] OJ L26/2
83. Directive 1992/43 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7.
84. R (on the application of Hillingdon LBC) v Secretary of State for Transport [2010] EWHC 626 (Admin)
85. Meyric Lewis and Ned Westaway, 'Public Participation in UK CCS Planning and Consent Procedures' In Ian Havercroft, Richard Macrory and Richard Stewart (eds), Carbon Capture and Storage: Emerging Legal and Regulatory Issues (Hart Publishing 2011
86. EN-1 (n 37) [1.7.1].
87. (n 3). See also text at (n 113) below.
88. Art 7. See the discussion of R (on the application of Greenpeace) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin), text at (n 77) below. Art 8 applies to 'executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment': 'each party shall strive to promote effective public participation at an appropriate stage, and while options are still open'.
89. art 8. Public Participation and Climate Change Infrastructure 47
90. Planning Act 2008, ss 5, 7 and 9 and Localism Act 2011, s 130. The Infrastructure Planning (National Policy Statement Consultation) Regulations , SI 2009/1302 prescribe the statutory consultees for NPSs.2009
91. Olivia Woolley, 'Trouble on the Horizon? Addressing Place-based Values in Planning for Offshore Wind Energy' (2010) 22 Journal of Environmental Law 223
92. Argues for deliberation at a strategic level, but advocating a regional or local process, rather than a national process.
93. See also Aarhus Convention, Art 9, although this is the least developed pillar under the Convention: Catherine Redgwell, 'Access to Environmental Justice' in Francesco Francioni (ed), Access to Justice as a Human Right (OUP 2007).
94. (n 68). The cases discussed below, Section 4, consider the revisiting of high-level policy in a decision on a particular project.
95. Karen Morrow, 'On Winning the Battle but Losing the War. (on the Application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311' (2008) Environmental Law Review 65.
96. (n 31) [3.2]. DECC is referring to Parliamentary approval of NPSs as well as the role of the Secretary of State. See also the DECC, First Progress Report (n 31) 17.
97. For example, Meeting Carbon Budgets (2010) (n 11) 16, the change 'should be managed in a way which avoids creating further uncertainty'.
98. Hansard, HC Public Bill Committee, 18th Sitting, 1 March 2011: column 730.
99. Subject to the proviso of information that 'would be likely to damage the effective conduct of the Planning Inspectorate's statutory functions or the conduct of its business', and 'any draft or working documents which are incomplete and potentially inaccurate or misleading.' http://infrastructure.planningportal.gov.uk/application-process/frequently-- asked-questions/42012
100. Note also the Planning Inspectorate's non-statutory 'outreach' role, Planning Inspectorate Advice Note 2: Working Together on Nationally Significant Infrastructure Projects (2012) http://infrastructure.planningportal.gov.uk/legislation-and-advice/advice-notes/accessed 6 August 2012.
101. See also IPC, IPC Guidance Note 1 on pre-application stages(2011)http://infrastructure.inde pendent.gov.uk/wp-content/uploads/2010/04/IPC-pre-app-guidance-note-1.pdf4
102. s 56. A'local impact report' is a report in writing giving details of the likely impact of the proposed development on the authority's area (or any part of that area), s 60.
103. s 102(1)(e); PI Advice Note 8: How to Get Involved in the Planning Process (2012) http:// infrastructure.planningportal.gov.uk/wp-content/uploads/2012/04/Advice-note-8.1v4.pdf
104. Directive 2011/92 (n 64) art 5(1). The information required is set out in art 5(3) and Annex IV. Where projects may have transboundary impacts, see also the information required by art 4 and Appendix II of the UNECE Convention on Environmental Impact Assessment in a Transboundary Context 1991, UNTS 309.1989
105. (n 55) [4.2.2].
106. (n 64) art 6.
107. arts 6(2), 8, 9.
108. Berkeley v Secretary of State for the Environment [2001] 2 AC 603 (HL) 15 (Lord Hoffmann).
109. Keith Lindblom and Richard Honey, 'Planning for a New Generation of Power Stations' (2007) Journal of Planning and Environmental Law 843.
110. An interested party includes local authorities and those whose property will be affected, as well as those who register (n 93).
111. The attribution of delay under the old regime to public participation, or to 'objectors', has been resisted. See Phil Michaels, 'The Planning Bill: A Perspective from Friends of the Earth' (2008) 20 Environmental Law & Management 275
112. Lindblom and Honey (n 100).
113. Directive 2009/31/EC on the geological storage of carbon dioxide [2009] OJ L140/114.
114. For example, Directive 2000/60/EC establishing a framework for the community action in the field of water policy OJ L 327/1.2000
115. (N 36), recital 27. Recital 90 provides that the Directive should be implemented in accordance with the Aarhus Convention 'in particular' with art 6 on activities.
116. Recital11. EU legislation on access to environmental information is also applies, recital 21and art 26.
117. Directive 2010/75/EU on industrial emissions (integrated pollution prevention and control) OJ L334/17, arts 24 and 25.2010
118. Findings and recommendations with regard to communication ACCC/C/2010/54 concerning compliance by the EU [draft], doc4 accessed 6 August These remain draft findings, pending adoption by the Compliance Committee.http://www.unece.org/fileadmin/DAM/env/pp/compliance/ C201054/Correspondence%20with%20Party%20concerned/C-54_EU_Draft_Findings29Apr12
119. Sir Oliver Franks, Report of the Committee on Administrative Tribunals and Enquiries (Cmnd 218 1957). And more recent non-statutory efforts to 'streamline' the process (strengthening the role of national policy before the 2008 Act) are discussed in R (Wandsworth) v Secretary of State for Transport EWHC 20.2005
120. Town and Country Planning Act 1990, s 54A.
121. Bushell v Secretary of State for the Environment [1981] AC 75 (HL).
122. Barbone v Secretary of State for Transport [2009] EWHC 463. The objectors wanted to open up for re-consideration the gap in the balance of payments in respect of tourism. The Court held that the policy in favour of expanding Stansted 'is founded on the Government's judgment that the balance of national socio-economic advantage favours such a policy and that one of the many matters taken into account when reaching that judgment was the so-called "tourism deficit"', [49].
123. (n 65). This case involved a challenge (on, inter alia, climate change grounds) to the consultation process around the expansion of Heathrow.
124. Bushell (n 117). Lord Edmund-Davies defines policy as something that relies on 'the exercise of political judgment', as opposed to matters of fact and expertise, 115.
125. Planning Inspectorate Advice Note 8.1: How the process works (2012)4accessed 6 August also describes the re-application stage as the best time to influence a project.http://infrastructure .planningportal.gov.uk/legislation-and-advice/advice-notes/2012
126. DCLG guidance. http://www.communities.gov.uk/documents/planningandbuilding/pdf/ guidancepreapplication.pdf
127. Richard Bull, Judith Petts and James Evans, 'The Importance of Context for Effective Public Engagement: Learning from the Governance of Waste' (2010) 53 Journal of Environmental Planning and Management 991.
128. The 'local impact report' is relatively undefined (n 91), although see Planning Inspectorate Advice Note 1: Local Impact Reports (2012)54accessed 6 August 2012. Local authorities are not under an obligation to consult on the local impact report, nor to pass on all contributions made to them.http://infrastructure.planningpor tal.gov.uk/legislation-and-advice/advice-notes/
129. DCLG guidance (n 129) on 'long linear schemes' [46].
130. See the discussion inWoolley (n 75).
131. For example, around theWash, with north Norfolk and south and east Lincolnshire.
132. For example, Espoo Convention (n 95) art 5.
133. Planning Act 2008, ss 104 and 105 as amended by s 49 Localism Act 2011.
134. Ss 87(3)(b) and 106(1)(b); PI Advice Note 8.1 (n 128).
135. And matters prescribed in respect of the particular type of development, s 104.
136. DCLG, Planning for a Sustainable Future (Cm 7120 [1.17].2007
137. Eg DECC, Planning our Electric Future (n 31) [1.10^1.12].
138. EN-1 (n 37) [3.1.3].
139. (N 60) [2.6.69]. Note that there is detailed consideration of a range of specific biodiversity impacts in EN-1.
140. For discussion of the hard cases in Natura 2000 sites, see Andrew LR Jackson, 'Renewable Energy vs. Biodiversity: Policy Conflicts and the Future of nature conservation' (2011) 21 Global Environmental Change 1195, who takes the view that certain large energy infrastructure projects would be unlawful under the Natura regime. Other biodiversity interests are also discussed in EN-1: for example, consent should 'normally' not be granted if it would have an adverse effect on a site of special scientific interest, whilst local or regional designations should receive 'due consideration', but 'should not be used in themselves to refuse development consent', EN-1 (n 37) [5.3.11], [5.3.13].2000
141. EN-1 (n 37) [5.9.14].
142. Appraisal of Sustainability for the revised draft National Policy Statement for Renewable Energy Infrastructure (EN-3): Non-Technical Summary (2010), 54accessed 6 August 2012 [1.7.3 (a)].http://www.decc.gov .uk/assets/decc/11/meeting-energy-demand/consents-planning/nps2011/1922-app-of-sustainfor- revised-draft-en3.pdf
143. A concern apparent on the face of the CCS Directive (n 55): 'This technology should not serve as an incentive to increase the share of fossil fuel power plants. Its development should not lead to a reduction of efforts to support energy saving policies, renewable energies and other safe and sustainable low carbon technologies, both in research and financial terms', Recital 4.
144. EN-1 (n 37) [5.2.2].
145. Few and others (n 5) 56.