Page 6 - Lawtext Environmental Law & Management Journal Sample

SITING OF NUCLEAR POWER STATIONS AND ‘PARTICIPATING LAW’ : EDITORIAL : (2008) 20 ELM 117
117
117
117
117
of State a power to grant or refuse development consent for electricity generating
stations (nuclear or otherwise) that is broadly similar to the development consent
provisions laid out in the town and country planning legislation in respect of other
18
development proposals. As with ‘mainstream’ planning law, the EA 1989 procedure
is aimed at facilitating public participation in the development consent process.
Interested parties can expect the opportunity to make representations before a public
inquiry presided over by a planning inspector, and to cross examine witnesses. This
has been the case since the early 1970s, and is, of course, the sticking point with the
government presently. Further entitlements to public participation arise from the
Environmental Impact Assessment (EIA) Directive and, more recently the Aarhus
Convention on Access to Information, Public Participation and Access to Justice, in
accordance with which the developer is required to facilitate public deliberation on
19
the environmental implications of the proposed development. This takes the form
of an environmental statement compiled by the developer, containing a wide range of
information which must be taken into account by the minister, and considered in
conjunction with any representations made by members of the public. This aspect of
the process is designed to comply with the requirements of European participation
law, and largely does so.
The chief problem with the EA 1989 procedure is the absence of any facility for the
public to be involved in energy policy. By the time a development proposal is put
forward for public participation within the parameters of section 36, policy decisions
of considerable relevance will already have been formulated in a process to which
individuals have no right under European Union law or statute to contribute. This
would not be an issue were the Strategic Environmental Assessment Directive to apply
to policy statements in the field of nuclear energy. But it does not, because within
20
Britain’s ‘unwritten’ constitution the Nuclear White Paper and other similar policies
18 Town and country planning powers in are compiled at the government’s discretion, and that takes them rather arbitrarily
this context vest in first instance in outside of the SEA’s ambit, which is confined to plans and programmes required by
the local planning authority, rather law. That is why individual process-oriented challenges to policy making in the field
21
than the Secretary of State, and that of nuclear energy have fallen to the common law. And although natural justice has had
is probably the principal difference. 22
19 See eg the Electricity Works (Environ- a dramatic effect on nuclear policy making, no one would seriously put it forward as
mental Impact Assessment) (England a substitute for the more tailored environmental assessment process.
and Wales) Regulations 2000 (SI
2000/1927), as amended by SI (2) The Planning Bill
2007/1977, taking account of
Directive 2003/35/EC on public More by coincidence than design, the Planning Bill addresses the above weakness in
participation in respect of the drawing the development consent process by making provision for a statutory ‘National Policy
up of certain plans and programmes
(OJ L156, 25.6.2003). Statement’ on nuclear energy which will trigger the procedural requirements of the
23
20 Article 6 makes provision for Strategic Environmental Assessment Regulations. It is proposed that a Nuclear NPS
consultation with prescribed will be drafted by the Secretary of State, in consultation with interested individuals,
authorities (defined in art 6.3) and and, in a recent amendment to the bill, put before parliament for approval. To reiterate,
the public (according to art 6.4). Each
should be given an ‘effective the SEA Directive confers upon individuals an ‘effective’ right to make representations
opportunity within appropriate time relating to the environmental implications of the policy statement, but until the specific
frames to express their opinion’ on the details of public participation in the NPS setting have been formulated, compliance
draft plan or programme and on the with the directive is uncertain. Important aspects of this right which will require
environmental report. Beyond these clarification concern the extent to which public participation can influence either the
broad parameters, detailed
arrangements for information and Secretary of State’s formulation of the NPS, or the process of parliamentary approval.
consultation are left to Member States Subject to this clarification, there is no reason in principle why this enhanced role of
(art 6.5). law in the policy making process cannot be welcomed by all protagonists in the debate.
21 Environmental Assessment of Plans
and Programmes Regulations 2004 Critics of the bill are most concerned with the impact of the NPS on the decision to
(SI 2004/1633), reg 2(1). This grant or refuse development consent for specific development proposals. The greater
mirrors art 2(a) of the SEA Directive. the impact or weight given to the NPS, the more important it is to ensure that public
22 R (on the application of Greenpeace)
v Secretary of State for Trade and participation is indeed ‘effective’ (in the words of the SEA Directive). Consultation on
Industry [2007] EWHC 311. the Nuclear NPS process envisages the statement as serving a function analogous to
23 Environmental Assessment of Plans a development plan under planning legislation. That provides an authoritative policy
and Programmes Regulations 2004 framework within which individual development consents are determined. According
(SI 2004/1633).
24 Towards a Nuclear National Policy to the government, the proposed Infrastructure Planning Commission (IPC) in charge
Statement, BERR Consultation paper of development consent (but not the NPS) would be required ‘to decide applications
July 2008, para 11. for development consent in accordance with any relevant National Policy Statement
25 ‘In considering individual planning except in certain circumstances.’ By way of elaboration, it is indicated that the IPC
24
applications, the Government expects would not have the power to approve a site not listed on the NPC, but it would have
25
the IPC to approve only those
applications for sites … included in the power to reject an application from a listed site. With these remarks the government
the Nuclear NPS’ (ibid para 18). is showing its concern to dispel any impression that the IPC is simply rubber stamping
26 ibid. decisions made elsewhere. 26

ENVIRONMENTAL LAW & MANAGEMENT PUBLISHED BY LAWTEXT PUBLISHING LIMITED
www.lawtext.com