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Biofuelwatch UK threatens legal challenge to decision to allow carbon capture installation at Drax power plant

Biofuelwatch UK has taken the first steps in challenging Drax Power Limited’s plan to install carbon capture technology at its power plant in Selby, Yorkshire, which is the single biggest carbon emitter in the UK.

Posted on 12 February 2024

The group, which campaigns against the controversial burning of biomass, believes the decision to allow the installation is unlawful. It says it would be a means for Drax to hold on to its eligibility for Government subsidies which keep the biomass industry economically viable.

The plan is to construct, operate and maintain post-combustion carbon capture technology on up to two of the four biomass units at the Selby power plant where Drax generates electricity by burning biomass almost entirely made up of imported wood pellets.

The practice has become increasingly controversial because of the negative impacts associated with every stage of the wood pellet supply chain, from the forest degradation and biodiversity loss associated with the harvesting of the trees, to the air quality impacts on predominantly low income, non-white communities living near the pellet mills in the Southern US, to the ultimate burning of the pellets at Drax’s Selby plant and associated greenhouse gas emissions. All of these raise important environmental issues.

The Government has made clear its intention to steer away from unabated biomass burning for electricity, i.e. without carbon capture, and has stated that although it currently makes biomass combustion eligible for renewable energy subsidies, going forward it will not support biomass electricity generation without carbon capture and storage, in line with a recommendation from the Climate Change Committee. 

Biofuelwatch argued in its objections to Drax’s planning application that Drax is a long way from making Bioenergy with carbon capture and storage (BECCS)  a reality, as the technology is novel and unproven, and believes its planning application to install carbon capture technology is more about capturing further government subsidies than carbon.

Drax received £893 million in renewable energy subsidies in 2021 and a further £617m in 2022. 

In a legal letter to Energy Secretary Claire Coutinho, Biolfuelwatch UK points out 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) says 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. However, the ExA accepted an Environmental Statement prepared by Drax, which Biofuelwatch UK says 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.

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. 

Any captured carbon at the plant would be subtracted from a baseline of zero combustion emissions, purporting to give a net reduction in emissions of 7,975,620 tCO2e per annum, which Biofuelwatch says is a dangerous assumption to make when we are at a tipping point in the climate crisis.

Biofuelwatch also says the carbon capture installation fails to address both the storage of captured carbon and the transport of it from the Drax power plant to the storage site. Applications for development consent for the transport and storage parts of the project are being made separately.

It says the Secretary of State breached EIA Regulations in three ways when she gave development consent to the carbon capture installation:

  • There was a failure to assess the significant GHG impacts of the proposed project lawfully, by irrationally deciding that it would lead to a net reduction in GHG emissions by zero rating the combustion emissions, in breach of reg 21 of the 2017 regulations.
  • There was a failure to account for the GHG emissions from the combustion of biomass at the units to be fitted with carbon capture technology. The Secretary of State also wrongly decided that the combustion emissions were not an effect of the project that needed to be assessed in their own right
  • There was a failure to consider the combined environmental impacts of the proposed project with the additional works to construct and operate transport and storage facilities for the captured carbon. 

Robert Palgrave, a member of Biofuelwatch UK, said:

"Drax's plan to develop carbon capture for its biomass power station will perpetuate decades more mass-burning of trees. Far from slowing climate change, Drax BECCS will do the opposite, and it will continue to damage forests and biodiversity in the countries supplying Drax's woodfuel. At the heart of our challenge is a fundamental point - that carbon emissions from burning wood impact the climate with immediate effect, just like those from coal or gas. They must no longer be discounted when planning decisions are made.  In granting development consent for Drax BECCS, Claire Coutinho ignored the self-evident fact that burning wood produces carbon emissions, hiding behind an obscure accounting convention that says such emissions can be zero-rated in national greenhouse gas inventories."

Dr Andrew Boswell, who gave evidence at the planning examination, says:

"This legal challenge by Biofuelwatch is highly important, and could have international ramifications.  Yet again the Government has failed to correctly apply the Environmental Impact Assessment Regulations relating to climate change in a major planning decision.  In this case, minister Claire Coutinho ignored millions of tonnes of carbon dioxide from the burning of biomass when approving these further environmentally damaging works at the Drax plant."

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.”

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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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