990: Analysis of revised energy National Policy Statements

This week’s entry looks at the revised energy National Policy Statements which were published on 30 March 2023.

In contrast to NPS development to date, the government is consulting for a second time on a set of National Policy Statements before designating them and they have indeed changed quite a lot since the first revised drafts were published in September 2021. The consultation closes on 25 May 2023. There is a consultation document seeking to limit the scope of the consultation here. Confusingly the consultation document gets all the EN-3 references wrong, eg saying 2.8.8 instead of 3.8.8.

The five new drafts can be found here, and a response to the consultation on the first revised drafts can be found here. The document says that a second consultation is being undertaken because several of the changes are material, which is the test for reconsultation in the Planning Act 2008, but that could be said for most final versions of NPS compared to their consultation versions.

I go through each new draft and consider what it says in the consultation response together with changes I think are significant compared with the previous version (I can send you tracked change comparisons if you email me). There is a lot to say about EN-1 and EN-3 but not so much in the others. I’ve put an asterisk next to items that are specifically mentioned in the consultation.

First, however, what could be the most significant change is that offshore wind and onshore transmission connected to it are upgraded from being urgently needed to a new description of a ‘critical national priority’ (this is just a new invention rather than a reference to something in legislation). I think this just means a ‘Defcon 5’ level need case and no more, since if it allowed residual impacts to be ignored then it would probably be an unlawful subversion of section 104(7) of the Planning Act 2008 (refuse consent if adverse impacts outweigh benefits). So perhaps it’s not all that significant other than as an expression of government intent.

EN-1 Overarching NPS

Consultation response document points:

• It refuses to introduce limits and targets, as these could inhibit competition. It says that NPSs can only reflect current policy which is true, but they could be expressed to allow changes, particularly expected ones;
• There is to be no dedicated NPS for carbon capture, usage and storage, (CCUS) since not having one ‘has not created any barriers to date’, not sure that is a reliable guide to the future, though;
• The NPSs have been amended to reflect schedule 15 of the Environment Act 2021 on biodiversity net gain, even though it is not in force, slightly contradicting the earlier statement about current policy;
• A Greenhouse Gas Assessment is now called for in energy DCO applications rather than a carbon assessment; and
• Earlier engagement with nature conservation bodies on habitats is recommended (to avoid last-minute scrambling during decision periods, which has happened over the years).

Analysis of significant changes:

• (in the NPS paragraph) 1.3.5 ‘Unconventional hydrocarbon extraction’ is added to a list of potential s35 direction applications;
• 1.5.2 there will be an announcement on NPS reviews every five years;
• 2.4.3 contracts for difference are upgraded from ‘very’ successful to ‘hugely’ successful;
• 2.5.6 there is a new paragraph on energy security meaning we are ‘remaining open-minded about our onshore reserves’ of gas;
• 3.1.1-2 need is upgraded from ‘will often be urgent’ to ‘is urgent’;
• 3.2.5 ‘which is urgent’ is also added to the main need statement;
• 3.2.11 a ‘substantial need’ for gas production infrastructure is added;
• 3.3.15 says unabated natural gas generating capacity will also be needed – surely not past 2035?;
• 3.3.37 Energy from Waste (EfW) is not to compete with waste prevention, reuse, recycling or cause overcapacity;
• 3.3.39 only biogenic waste for EfW counts towards carbon reduction;
• 3.3.56-7 introduces the ‘critical national priority’ concept, more in EN-3 and EN-5;
• 3.3.61 new coal and oil-fired generation is not within the scope of the NPSs
• 3.3.64 electricity network delivery, however, should be balanced with cost, impact and timelines, probably recognising duties to Ofgem;
• 3.4.6-9 new text on gas infrastructure: demand is expected to more than halve by 2037. Only an ‘ongoing’ need for it rather than an urgent one;
• 3.4.16-20 more text on hydrogen infrastructure;
• 3.6.2 new text on the zero emission capability of vehicles 2030-35, a slightly random amendment of transport policy;
• 4.1.8 confirms that land can be acquired compulsorily for biodiversity net gain (BNG);
• 4.1.20 adds a threat of non-acceptance if habitats are not properly dealt with in an application;
• 4.2.17 gender neutrality gone mad – the secretary of state is called ‘it’;
• 4.4.3-8 has more on a ‘marine spatial prioritisation programme’ and other marine issues;
• 4.5.9 says that offsite BNG should be set out in the application, even now;
• 4.7.14 new text on using 2006 guidance for thermal generating stations, surely that’s getting a bit ancient?;
• 4.8.18-19 text added about the effects of hazardous solvents being used in carbon capture;
• 4.9.8-9 more specifics on climate change adaptation;
• 4.11.16 more on when pollution impacts are to be considered;
• 4.15.10 not sure why the Environmental Improvement Plan is mentioned under security;
• 5.2.6 and 16 have more on emissions near sensitive sites – could mean refusal;
• 5.3.7 as well as GHG assessment, the DCO should secure a ‘GHG Reduction Strategy’;
• 5.3.11 not a change but text that operational GHG emissions are not reasons to prohibit or restrict consenting of energy projects is still there;
• 5.4.2 biodiversity: a new list of documents to consider, including the National Pollinator Strategy. Who knew?;
• 5.4.52 refuse consent if there is loss of irreplaceable habitat unless wholly exceptional and a compensation strategy is in place;
• *5.5.2 aviation and energy should seek to coexist (neither trumps the other);
• *5.5.23-33 a lot of new text on windfarms and aviation;
• 5.7.9-11 new text on reducing emissions during construction;
• 5.9.16-18 new text on lost heritage assets;
• 5.10.8 new text on heritage coasts (which is what scuppered the Navitus Bay offshore windfarm);
• 5.10.21 new text on justifying tall cooling systems or visible plumes;
• 5.11.27 compensation schemes for loss of trees ‘will be required’;
• 5.11.37 renewable energy may constitute very special circumstances for building in the green belt;
• 5.14.12 try to use other modes than road (by which it presumably means vehicles producing emissions) – even cargo bikes are mentioned!

EN-2 – Natural Gas Electricity Generating Infrastructure

Not much to say on this. As mentioned above, if the government is serious about decarbonising electricity generation by 2035, why doesn’t this NPS draw a line in the sand and say all unabated generation (new and old) will need to have its carbon captured by 2035?

EN-3 – Renewable Energy Infrastructure

This NPS has been extensively rewritten. The consultation response document acknowledges questions about biomass sustainability; there is an upcoming Biomass Strategy (‘due to be published in late 2022’, presumably a typo); but the government considers it renewable and low carbon. It is acknowledged that the non-biogenic material feeding Energy from Waste plants is not renewable (3.3.37). Page 23 has two ‘government responses’ in a row, I’m not sure what the second one is responding to. There is more on the effects of electromagnetic fields on fish and entanglement on marine mammals, and what ‘ornithological headroom’ and ‘satisfactory’ reassessments mean. On p26 licensing and licences are misspelt in the same line. The 70GW solar ambition is now mentioned, and it is acknowledged that some solar projects or parts of projects may need to deploy on higher grade agricultural land, despite last summer’s wobbles. It is agreed that agriculture and other low-carbon technologies can coexist with solar.

The government has refused to add a technology-specific section on tidal range generation, but has appended what would have been one to the consultation response document at Appendix C – a weird compromise. The sentence giving the reason for this is gobbledygook ‘Our position remains that it would be unwise to impose before a fact that could be drafted under these conditions of uncertainty would end up being poorly suited to the task.’ Answers on a postcard as to what that means.

Analysis of significant changes to the NPS itself:

• 2.6.3 says the NPS covers offshore transmission projects that have been brought in using s35;
• 3.6.1-3 new text on flexibility;
• 3.7.33-71 quite a lot of new text on Energy from Waste impacts and mitigation;
• section 3.8 on offshore wind is now enormous and goes up to paragraph 3.8.368;
• *3.8.7-20 corresponding (and longer) new text to that in EN-1 on ‘critical national priority’ of offshore wind;
• 3.8.53 new text on future proofing of windfarm connections;
• 3.8.69-74 more on the coordination of grid connections from Round 4 onwards, hinting you can’t go it alone any more;
• *3.8.103-106 a consultation is coming on offshore wind application standards, but this is not linked to DLUHC’s shorter examination proposal (yet);
• 3.8.148 there is a new request for a Site Integrity Plan;
• 3.8.154 is a curious paragraph encouraging what appear to be post-construction amendments to DCOs to match as-built parameters in the context of bird collisions;
• 3.8.169 reminds us that guidance on fishery liaison is available;
• 3.8.229-328 contain a lot of new text on ecological mitigation and compensation, particularly providing HRA assessment information if the statutory bodies say so (*3.8.284);
• 3.9.1 electricity storage is ‘essential’ for net zero, of which pumped hydro is one kind;
• 3.10.13-39, 3.10.114-125 and 3.10.132-146 contain significant new text on solar topics in the ‘impacts’, ‘assessment’ and ‘decision-making’ sections, particularly agriculture, accessibility, rights of way, security and lighting, and network connections, and at 3.10.91-93, there is more on glint and glare; and
• 3.11 the tidal stream section extensively redrafted but shortened.

EN-4 – Natural Gas Supply Infrastructure and Gas and Oil Pipelines

On CCUS transport and storage, the response document says that the current wording of EN-4 is sufficient, which is odd, as hydrogen and CO2 pipelines are specifically excluded from the scope of EN-4 (see paragraphs 1.6.6 and 1.6.9). The title of the NPS has had the word natural added just to hammer this point home.

In the new draft NPS, paragraphs 1.18.6 and 1.18.9 are new and contain tortuous sentences about not refusing applications unless other consents are unlikely to be obtained. There is generally more text on noise and vibration for each type of nationally significant infrastructure project.

EN-5 – Electricity Networks

The consultation response document says there was support for the introduction of the presumption of undergrounding electric lines in areas of outstanding natural beauty and national parks. There is more text on networks being critical for achieving net zero and on the offshore transmission network review. Paragraph 2.6.6 of this NPS also says compulsory acquisition could be used for biodiversity net gain. Section *2.8 gives more emphasis to strategic network planning. At last, at paragraph 2.9.3, we have definitions of ‘crackle’ and ‘hum’. Paragraph *2.9.20 sets out the main presumption that lines should be overhead outside protected landscapes and underground within them. Finally, there are completely new sections 2.12-2.15 on offshore-onshore transmission, emphasising the special consideration to be given to networks connecting offshore windfarms.

Separately, the government has launched a consultation on ‘community benefit’, ie financial payments, for electricity transmission projects (but not ‘yet’ wind and solar) that you can find here. It is proposing that it be voluntary and consist of direct payments to those affected and indirect ones for community projects in the vicinity. It would be separate from the planning process and funded by electricity bill payers. How voluntary and how separate it will really end up being remains to be seen.

There you have it. I hope that was useful and saved you time!