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Waste incinerators 'should be part of post-Brexit emissions trading scheme'

​A legal argument that waste incinerators should be part of the post-Brexit carbon emissions trading scheme will be made in court on Tuesday, 1 December 2020

Posted on 30 November 2020

An application for judicial review of the Government’s decision to exclude the incinerators from the proposed UK Emissions Trading Scheme will be heard in the High Court.

The legal challenge is being brought by environmental campaigner Georgia Elliott-Smith, an industry expert and environmental consultant who is represented by Leigh Day solicitors, as well as David Wolfe QC at Matrix chambers and Ben Mitchell at 11KBW chambers.

The Defendants are Business Secretary, Alok Sharma, The Northern Ireland Department for Agriculture, Environment and Rural Affairs, the Scottish Ministers and the Wales Minister for Environment, Energy and Rural Affairs.

Georgia’s case concerns the exclusion of the municipal waste incinerators and the cap on the volume of emissions permitted under the emissions trading scheme.

She is applying for permission to bring judicial review on the grounds that:

  • The Defendants’ failure to have regard for the UK’s short and medium term obligations under the Paris Agreement on Climate Change was unlawful

  • Their setting the cap to alleviate pressures on businesses was an improper purpose, as the relevant statutory power could only be lawfully exercised in order to limit or encourage the limitation of emissions

The emissions from incinerators are equivalent to approximately 5.4 per cent of the entire volume of greenhouse gas emissions covered by the UK Emissions Trading Scheme (UK ETS). In 2018, incinerators released 6.3 million tCO2e. 

The cap on the UK ETS in its first year will be 156 mtCO2e, substantially higher than the projected ‘business-as-usual’ emissions of 126-131 mtCO2e for 2021, so that emissions reductions may not occur in the short to medium term.

Georgia argues that in setting up the UK ETS, the Defendants did not give any consideration to the short and medium-term aspects of the UK’s obligations under the Paris Agreement which requires substantial and immediate emission reductions, not just at 2050. 

She argues that the Climate Change Act 2008 grants the power to set up the UK ETS for the purpose of limiting or encouraging the limitation of greenhouse gas emissions. However, the cap decided by the Defendants was chosen for the improper purpose of ensuring that the UK’s exit from the EU would be smoother.

Georgia Elliott-Smith said:

“The proposed UK ETS is a weak and fundamentally-flawed scheme that will fail to reduce the UK’s industrial carbon emissions. The excess of allowances enables business-as-usual, missing a crucial opportunity to drive GHG reductions and industry innovation. Waste incineration is experiencing an astronomical rise with UK capacity doubling over the coming years. 

“Allowing unregulated, untaxed GHG emissions from the burning of recyclable plastic at a time of climate emergency is morally indefensible, and we seek to prove that it is also contrary to the Paris Agreement. Bringing incinerators within the scope of the UK ETS will bring them out of the shadows, preventing creative carbon accounting practices, providing both a carrot & stick for reducing emissions.”

Leigh Day solicitor Rowan Smith said:

“The government has sought to defend this claim on the basis that there are other mechanisms by which the carbon impact of waste incinerators can be regulated. However, those mechanisms either do not exist yet, or do not ensure carbon emissions are reduced within the rapid timescales demanded by the Paris Agreement.

"Our client says that this will lead to a massive amount of CO2 simply being unaccounted for, precisely at a time when more action is needed to tackle the climate crisis. It is therefore at least arguable that the exclusion of waste incineration from the UK ETS was unlawful.”

Rowan Smith
Climate change Environment Human rights Judicial review Planning Wildlife

Rowan Smith

Rowan Smith is a senior associate solicitor in the human rights department.

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