August 31, 2013
Scotland, U.K.

“Citizens rights” defeats UK government in landmark wind energy ruling

By Christine Metcalfe | Principia Scientific International | August 30, 2013 |

This week Christine Metcalfe, 69, a Scottish community councillor, scored a stunning landmark legal victory bringing to a halt the UK government’s unlawful and unpopular wind energy initiative. In effect, all British wind farm development is mothballed until grassroots public consent is granted – if ever.

Below Christine provides her personal insights on this extraordinary long running battle in which Britain and the EU were ruled to have breached citizens’ rights, protected under the UN’s Aarhus Convention.

A personal view on the Aarhus Convention Compliance Committee’s draft decision on Complaint Ref. ACCC/C/2012/68

By Christine Metcalfe

Initially, like millions of others, I believed the claims made relating to wind power technology. I wanted to. It seemed to wipe away the perceived problem of climate change by using a free source of energy!

I also cherished the belief that in an open democratic and Europeanised society policies and public participation in decision making were open, rational and defensible. So I have some sympathy with those who have yet to appreciate that both the UK and the EU created immense and powerful mechanisms for counteracting climate change without the open scrutiny, intellectual accountability and checks and balances which lie at the heart of the Aarhus Convention, and which at our peril we take for granted.

So the independent Committee’s Ruling will be extremely valuable in highlighting issues that must be rectified in the public interest. But despite the subject matter it is not just about renewable energy policy or fixes for climate change: its principally about practice, participation and transparency. It shows that it is not merely possible, but imperative that our authorities are held to account not only by experts, but by ordinary citizens at the ‘grass roots’ of society.

The complaint – stemming from local injustices in a far-flung corner of Argyll, but driven by seemingly unassailable EU-wide policies with an ostensible global rationale – has enabled exposure of an increasing disconnect between authorities. They have become politicised and committed to the current orthodoxy, despite increasing scientific and technical evidence to the contrary. It is the very lack of open-ness, scrutiny and accountability that has allowed this to go so far that it is in danger of becoming immutable and those who challenge it branded as heretics rather than democrats.

The informed public must now be more willing and able to deploy the Committee’s Ruling whenever the need arises. This is especially true now that the tentacles of political will are using government organisations to further their aims.

For example FCS (Forestry Commission Scotland) which holds thousands of hectares of planted and unplanted land targeted for subsidised wind power generation as a result of the NREAP (National Renewable Energy Action Plan) now ruled to be illegal by the Committee. Our initial complaint shows how FCS has moved away from its accepted consensual role of conserving the environment for the Scottish nation by producing timber. It has instead become an agent of the now discredited NREAP by granting exclusive rights of search to wind farm developers over the entire FCS estate. FCS plans for land belonging to the Scottish Nation have been met with a silence largely borne of ignorance of them. Still lacking is an appreciation that the potential for harm from damage to and/or losses of such habitats, will be permanent.

Public Inquiry Reporters working to centralised diktat have routinely refused to accept Local Plans which proposed justifiable ‘no go’ areas for wind power developments. To satisfy the insatiable appetite under the NREAP for more turbines, immense resources are diverted from indisputably necessary investments in health, education and infrastructure. To add insult to injury £ millions are paid to developers to turn off turbines when the grid cannot accept storm-induced surges of wind power, while commonplace calm weather conditions prevent them fulfilling any useful role as a dependable and predictable energy source.

When planning applications are made, communities find difficulties in obtaining information, responding to it, or having their objections properly considered by planning authorities faced with the seemingly inexorable pressure of the NREAP targets. The localism agenda has now been invigorated by the Committee’s Ruling and this should and must now change.

Few are unaware of the effect that an energy policy has on every aspect of our lives. Technologies chosen, resulting costs to the economy and the environment are all key factors as is the levy on electricity bills. But the current policy is ideology driven instead of science led, with vested interests distorting important issues. As a result we have had years of neglect in progressing to a truly sustainable energy policy thus compounding the problems now highlighted by the Committee’s Ruling. The emerging chaos is indefensible.

So it will be up to the electorate and politicians with any moral courage left, to make their dissatisfaction abundantly clear. Despite protestations to be above it, both the Scottish and UK governments must abide by the rule of law as laid down by the Convention to which they are parties. Members of the legal profession need to embrace rather than ignore the Convention, including the peer-reviewed reports on adverse health impacts on humans and animals in close proximity to wind turbines. The Ruling brings all these issues and many others within the ambit of this blighted policy and will render decisions with demonstrably adverse effects judicially reviewable and justify capping of costs for aggrieved individuals.

Christine Metcalfe.

Further Explanatory Notes for Editors:-

As this is of such importance, there is a need to understand the implications and reasons for the decision. In case needed, following is brief guide to events and the process.

It is very important to have a look at the UK NREAP, which has now been ruled to have failed to have undergone the necessary public participation:

Points to note:

On pages 152 and 153, is the expected installed capacity, which by 2020 reaches 14,890 MW of installed onshore wind and 12,990 MW of offshore wind.

On page 4 it states: “This National Renewable Energy Action Plan provides details on a set of measures that would enable the UK to meet its 2020 target”. On Page 7: “ORED is currently undertaking a programme of work to develop a coordinated delivery plan to implement the commitments made in this National Renewable Energy Action Plan”.

The UK keep claiming that “NREAP does not set the framework for the determination of consent applications for renewable energy projects and an SEA is not required”. This really is playing with words, as the NREAP decided what was to be built to achieve the 15% target and then in its own words provided the financial and administrative model to deliver it.

Everything else was secondary to this, the various Scottish route maps in draft form, etc. The NREAP was the plan on what was to be built and how to deliver it.

The Committee ‘chastised’ the EU again for not providing sufficient measures within the process of adopting NREAPs for public participation. (Main Findings 107)

In the UK this NREAP was rushed through; Article 7 of the Convention requires that the ‘necessary information be provided to the public‘. Article 7 in the new implementation guide starting at page 178 below:

The word “necessary” should be understood in the context of effective participation.

If we go to the objectives of the Convention in the Preamble, it is stated:

Recognizing the importance of fully integrating environmental considerations in governmental decision-making and the consequent need for public authorities to be in possession of accurate, comprehensive and up-to date environmental information,

The NREAP never assessed what was the impact of building some 14,890 MW of onshore wind and 12,990 MW of offshore wind. Neither, for that matter, did the Renewable Energy Strategy which predated it, a point which was well addressed in the first question of the reply of September last year, see below:

So was the UK public provided with the necessary information? The answer is No. Furthermore, the Committee ruled:

100. NREAPs are plans or programmes under article 7 of the Convention (see findings on ACCC/C/2010/54 (ECE/MP.PP/C.1/2012/12), para. 74) and as such are subject to public participation. The fact that the UK’s Renewable Energy Strategy, which informed the NREAP, was subject to public participation does not affect this conclusion, given their different legal status and functions in the EU and UK legal framework respectively.

101. The Committee concludes that because the UKs NREAP was not subjected to public participation, the Party concerned (UK) failed to comply with article 7 of the Convention, in this regard.

So the Strategy was just another aspirational type of document, while the NREAP was binding and between the UK and EU. To reiterate Article 7 applied to the NREAP, in which :

Each Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public.

The public participation procedures shall include reasonable time-frames for the different phases, allowing sufficient time for informing the public in accordance with Article 6 paragraph 2 and for the public to prepare and participate effectively during the environmental decision-making.

Each Party shall provide for early public participation, when all options are open and effective public participation can take place.

Each Party shall ensure that in the decision due account is taken of the outcome of the public participation.

Instead, it was all rushed through and set in motion, which, as can be seen in a multitude of cases, has lead to real problems.

Finally, Prof Aine Ryall is the leading Irish legal expert on the Aarhus subject matter having written the relevant reports for the EU on the situation there. See publication in (2013) 20 (1) Irish Planning and Environmental Law Journal. ‘Beyond Aarhus ratification. What lies ahead for Irish Environmental Law?’ Aine Ryall, Faculty of Law, UCC.

However, the key point is:

The Convention is an ‘integral part of EU legal order’, as confirmed by the European Court of Justice (Case C-240/09). Therefore these rights are part of EU law and it follows that the Convention has legal force in domestic law by virtue of a Member State’s obligations under EU law.

Furthermore, as decided already by the President of the Irish High Court, Article 7 of the Convention is not time limited. Therefore, there is a clear potential for an injunction to be sought in the UK courts on the further continuation of the UK NREAP until such time as Article 7 is complied with.

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