UK government receives legal challenge after green-lighting Drax plant’s BECCS conversion
Last month, the UK Secretary of State for Energy Security and Net Zero, Claire Coutinho, approved the Development Consent Order (the DCO) for Drax Power Limited’s (Drax) plans to convert two of its biomass units at Drax Power Station to the carbon removals technology bioenergy with carbon capture and storage (BECCS).
Following the approval, Drax said the DCO is a milestone for the project, because it provides planning consent for its development. It added that BECCS is currently the only credible large-scale technology that can both deliver carbon removals and generate renewable power.
Biofuelwatch UK contests that the decision to allow the installation is unlawful because it would be a means for Drax to hold on to its eligibility for subsidies from the UK government that keep the biomass industry economically viable.
Biofuelwatch argued in its objections to Drax’s planning application that BECCS technology is novel and unproven, and said it believes the planning application 'is more about capturing further government subsidies than carbon'.
In a legal letter to Energy Secretary Claire Coutinho, Biolfuelwatch UK claimed that the Drax Carbon Capture and Storage Project was given development consent by the Secretary of State for Energy Security and Net Zero unlawfully, as it is believed that unabated biomass burning would be economically unviable beyond 2027, meaning emissions from its continued use were additional and should have been assessed.
The Biofuelwatch UK letter before claim, sent on its behalf by the environment and planning team at law firm Leigh Day, and prepared with Estelle Dehon KC (Cornerstone) and Ben Mitchell (11KBW), added that the decision to give development consent to the Carbon Capture and Storage Project was unlawful and calls for it to be quashed.
Biofuelwatch made detailed submissions to the Examining Authority (ExA) during its examination of Drax’s application for the carbon capture installation, according to Leigh Day.
However, the ExA accepted an Environmental Statement prepared by Drax, which Biofuelwatch UK said did not meet the requirements of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017.
For example, it failed to assess the significant greenhouse gas (GHG) impacts of the proposed development and the combined environmental impacts of the proposed development, it said.
The Secretary of State accepted the ExA’s conclusion that the GHG emissions from the combustion of biomass at the Drax power plant should be zero-rated, i.e. treated as producing no GHG emissions from combustion, despite 'the obvious and indisputable fact that the combustion of biomass releases huge quantities of GHG emissions'.
Leigh Day solicitor Rowan Smith, who represents Biofuelwatch UK, said: “The government claims that it can ignore greenhouse gas emissions from the operation of Drax simply because an entirely separate regime says those emissions are reported in the country from where the biomass is imported. Our client’s arguments seek to expose that legal fiction. They also highlight inconsistencies between the government relying on the full benefits of carbon capture storage, but not assessing the full environment harms.”
Drax said its BECCS plans will enable Drax Power Station to continue to play a critical role in supporting UK energy security and would enable it to remove approximately 8 million tonnes of carbon dioxide per year when both units are fully operational.
The organisation added that recent Baringa analysis found that delivering BECCS at Drax Power Station could, if implemented, save the UK £15bn in whole economy costs between 2030 and 2050 providing a more efficient, cost effective and straightforward pathway to meeting Net Zero targets than other potential options.