FREE CHAPTER from ‘A Practical Guide to the Law and Policy of Solar Energy Development’ by Thea Osmund-Smith

CHAPTER ONE – BACKGROUND AND CONTEXT

Introduction

Climate Change, and its potentially catastrophic human, environmental, and societal impacts for generations young and old, is considered by many to be the greatest threat faced by humanity. The consequences of rising temperatures and extreme weather events are all too obvious, and they are being felt now; rising sea levels, increasing coastal erosion and flooding, wildfires destroying communities and valuable wildlife habitats, changing and unpredictable weather patterns and warming which threatens food production and biodiversity.

To help tackle the climate crisis, Parliament has committed to reaching net zero carbon emissions by 2050 – something which could properly be described as an enormous challenge. Rapid growth in renewable energy has a “key role” to play and will eventually “underpin” the entire net zero economy.¹ Indeed it is Government policy that the UK will need to be entirely powered by clean energy by 2035.²

Residential, commercial, community and utility³ scale solar capacity in the UK currently stands at 14 gigawatts (“GW”). The costs of solar energy development have been decreasing over the past decade, and the technology and panel efficiency is consistently improving. Solar, together with wind, is now one of the cheapest forms of energy in the world.⁴ The Government through its British Energy Security Strategy (“the BESS”) expects solar capacity to increase five-fold by 2035 and will consult in due course on amendments to strengthen policy in favour of solar development on “non-protected” land⁵ while ensuring that communities continue to play a role in the process, and that environmental protections remain in place. The strategy also notes that electricity demand is highly likely to double by 2050, which is an inevitable consequence of electrification in our daily lives.

The support for solar energy development at a national level is unequivocal:

1. 1. December 2020’s Energy White Paper⁶ sets out that achieving net zero rests on a “decisive shift” away from fossil fuels to clean energy and describes solar as a “key building block” of the future energy generation mix.⁷

   2. The National Planning Policy Framework July 2021⁸ (“NPPF”) sets out a presumption in favour of renewables at paragraph 158, and at paragraph 152 states that the planning system should support the transition to a low carbon future in a changing climate, inter alia by supporting renewable and low carbon energy and associated infrastructure.

   3. September 2021’s Draft National Policy Statement EN-1⁹ states that wind and solar are the lowest cost ways of generating energy and that a secure, reliable, net zero system in 2050 is likely to be composed “predominantly” of wind and solar.¹⁰

   4. Draft National Policy Statement EN-3¹¹, also dated September 2021, describes solar as “a key part” of the government’s strategy for low-cost decarbonisation of the energy sector and renewables as an “essential” element of the transition to net zero.¹²

   5. The Net Zero Strategy establishes that the UK will be powered entirely by clean energy by 2035 (infrastructure for which needs to be deployed at an “unprecedented scale”), with the Government forecasting a 40-60% increase in demand over the same period.¹³

Thus, a number of overarching themes begin to emerge in the ever-evolving energy policy and guidance:

1. the increasing imperative to reduce greenhouse gas emissions evident in legislation (through amendments in the Climate Change Act 2008).

2. the key role for renewable energy in meeting this challenge.

3. the evident need to pick up the pace of decarbonisation.

4. the fact that demand for energy will continue to increase to 2050.

5. the unprecedented scale and pace of the transition that is required; and

6. the Government’s commitment to the securing the infrastructure necessary to deliver change.

Climate change and the need for renewable energy

Renewable energy, its development, and the need for it is inextricably linked to the climate crisis but harnessing the power of renewable natural resources is not new. Waterwheels, the first hydropower installations, were in use over 2000 years ago harnessing the energy of moving water and converting it into mechanical output. Windmills became a feature of the landscape from around the 8^th century, but of course, wind was exploited long before that to power sailing ships across the oceans of the world. With the advance of modern technology, there was perhaps less need to rely on sporadic and unpredictable natural resources, and by 1882, the first coal-fired power station in England, known as the Holborn Viaduct power station, began generating electricity for public consumption. The power station was the brainchild of Thomas Edison who opened a further power station later in the same year in New York which was the first commercial power station in the United States.

Fast forward just over 100 hundred years to 1985, and there was a growing awareness of the damaging impact of human activity on the planet, and the potential impact of environmental damage on human health. The Vienna Convention for the Protection of the Ozone Layer was created as a response to the growing knowledge and recognition that damage to the ozone layer “potentially”¹⁴ posed a threat to human health. The Convention followed on from work carried out in the 1970s to better understand the cause and effect of changes in the Ozone layer and precautionary measures were already being implemented at the national and international level.

Building upon the Vienna Convention, the Montreal Protocol on Substances that Deplete the Ozone Layer followed in 1987 and was adopted on 15 September of that year. To date, it is the only UN treaty ever that has achieved the universal ratification of all 197 countries, and so can properly be termed “a global agreement.” The purpose of the Protocol was to protect the ozone layer by phasing out the production and consumption of ozone-depleting substances in recognition of what was then considered the “likely”¹⁵ adverse effects to human health that were likely to result from a damaged ozone layer.

In 1992, the United Nations adopted the United Nations Framework Convention on Climate Change (“UNFCCC”) which entered into force on 21 March 1994 and has near universal membership. The UNFCCC recognised that climate change is a common concern of humankind, and that human activities had been contributing substantially to concentrations of greenhouse gases that would result in global warming. The aim of the UNFCCC is the “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.¹⁶”

The UNFCCC places a greater obligation on developed countries to “take the lead in combating climate change”¹⁷, and lays down the principles that parties should:

1. Protect the climate for system for the benefit of present and future generations of humankind.¹⁸

2. Take precautionary measures to anticipate, prevent or minimise the causes of climate change, and not postpone such measures because of a lack of full scientific certainty.¹⁹

3. Promote sustainable development, cooperate in promoting and supporting an open international economic system that would lead to sustainable economic growth.²⁰

The Commitments of the Parties are set out in Article 4 and include gathering and publishing information of the Conferences of Parties, or “COP”, the most recent of which took place in 2022 in Glasgow in the United Kingdom – “COP26.” Article 4 sets out a wide range of commitments to encourage positive environmental policies and measures to prevent climate change, to prepare for adaption to the impacts of climate change, and to promote the sharing of relevant information concerning climate change and response strategies.

Next came the Kyoto Protocol (1997) which entered into force on 15 February 2005 and is based on the principles of the UNFCCC committing industrialized nations to transition to limit and reduce greenhouse gas emissions in accordance with agreed individual targets. The Protocol did not apply to countries that were still considered to be developing, and so China was not required to reduce its emissions despite being among one of the major contributors of greenhouse gas emissions. Furthermore, despite signing, the US (as the second largest contributor to greenhouse gas emissions) did not ratify the Protocol.

It is widely accepted that rising levels of carbon dioxide and other greenhouse gases are to blame for climate change, and that the increase in greenhouse gases is almost entirely due to human activity. The power sector accounts for a significant amount of global greenhouse gas emissions at around 25%, but other causes are manufacturing, and agriculture and deforestation. Of the carbon dioxide gases produced, around 43% goes into the atmosphere.²¹

The UK met its emission target for the first commitment period of 2008-2012 under the protocol, achieving a 23% reduction below base year emissions. The second commitment period covers the years 2013-2020 in which the Member States of the European Union committed to reduce emissions by 20% compared to 1990 levels; the UK has also over-achieved against that target. The 2022 UK Greenhouse Gas Emission, Final Figures statistical release published by the Department for Business, Energy & Industrial Strategy (“BEIS”) on 1 February 2022²² explains that the UK remains committed to its shared target with the EU as part of the Withdrawal Agreement²³

A significant element of that achievement has been as a result of a two-thirds reduction in the power sector.²⁴ As of 2021, low carbon electricity represents over 50% of the UKs total generation,²⁵. In terms of solar energy specifically, between 2010 and the end of 2021, the UK had increased capacity from 95 megawatts to approximately 14GW, and in 2021 solar photovoltaics²⁶ (“PV”) contributed more than 10 per cent of renewable generation, and more than 4 per cent of total electricity generation in the UK.²⁷

The Kyoto Protocol was effectively superseded by the Paris Agreement that was adopted by 196 Parties at COP21 in Paris on 12 December 2015, and entered into force in 2016. The Agreement required all nations, developing and developed, to commit to reducing greenhouse gas emissions and submit a plan to the UN setting out how they intended to do so. The Agreement is focused on limiting global warming to well below 2 degrees Celsius compared to pre-industrial levels, and “pursuing efforts to limit the temperature increase to 1.5^oC…recognising that this would significantly reduce the risk and impacts of climate change.”²⁸

Following the 21st Conference of the parties to the Convention, on 12 December 2015 the text of the Paris Agreement on climate change was agreed and adopted. The Paris Agreement sets out certain obligations to reduce emissions of greenhouse gases, in particular CO2, with the object of seeking to reduce the rate of increase in global warming and to contain such increase to well below 2^oC above, and if possible, to 1.5^oC, above pre-industrial levels. On 22 April 2016 the United Kingdom signed the Paris Agreement and on 17 November 2016 the United Kingdom ratified the Agreement. By that time, in domestic law, the Climate Change Act 2008 (“CCA 2008”) had already set the ambitious target to reduce UK emissions by at least 80% by 2050 compared to 1990 levels.

The Agreement requires countries to submit their plans for climate action known as “nationally determined contributions” (“NDC”) by 2020. NDC are at the heart of the Paris Agreement, and the UK communicated its NDC to the UN on 12 December 2020 committing to reduce economy-wide greenhouse gas emissions by at least 68% (compared to 1990 levels) by 2030. The next NDC is required to be submitted by 2025.

At the domestic level, the CCA 2008 sets out a legally binding framework for the UK to reduce greenhouse gas emissions which was originally 80% by 2050 relative to 1990 levels. The UK was the first country to set a legally binding target, and on 27 June 2019, this target was amended, committing the UK to a legally-binding target of net zero emissions by 2050, set on a whole-economy basis.²⁹

The CCA 2008 also introduced:

1. carbon budgets, which place a restriction on the total amount of greenhouse gases that the UK can emit over a 5-year period. The first five carbon budgets covered the period from 2008-32. The UK’s sixth carbon budget (2033-37) incorporated the UK’s share of international aviation and shipping emissions for the first time and set a binding target to reduce emissions by 78% by 2035.³⁰

2. the Climate Change Committee, which is an independent statutory body that advises the UK Government and Devolved Administrations on climate change mitigation and adaptation, including emissions reduction targets.

In October 2021, the Net Zero Strategy was presented to Parliament. In his foreword, the Prime Minister set out that “[R]emoving dirty fossil fuels from the global economy will lead to the creation of vast new global industries from offshore wind to electric vehicles and carbon capture and storage.”³¹ The Strategy, which points to the stark consequences already being felt from climate change in the UK makes clear that renewable energy generation has a key role to play in achieving net zero emissions by 2050, and that it will “underpin” the net zero economy. The additional benefits of clean power are set out, including reduced costs, and protection from energy price spikes that are experienced in the volatile international fossil fuel markets. The ambition is to fully decarbonise the power system by 2035³² and part of that, inevitably, is to increase the amount of renewable energy which will most likely be composed predominantly of wind and solar generation.³³

Most recently in April 2022, the Government published the BESS noting recent events that have contributed to rising energy costs, namely the Covid-19 pandemic, and Russia’s invasion of Ukraine. The BESS recognises that the UK needs a long-term flow of energy that is clean, affordable, and secure. Part of the answer to that is for British Energy to be generated in Britain using what the Prime Minister referred as “Britain’s inexhaustible resources of wind and – yes – sunshine”³⁴

The BESS expects a five-fold increase in the deployment of solar power by 2035,³⁵ and indicates that the government will in due course consult on amendments to policy to strengthen the policy support for solar development. The document expresses support for large scale projects to be located on previously developed land, or lower value land where that is possible, and notes the benefit of co-locating solar development with other functions such as agriculture, onshore wind generation, or storage. The UK government acknowledges that significant increases in all forms of renewable energy capacity is required to meet with net zero targets.

Why solar³⁶ and why now?

Solar technology is not novel or new. Planning and environmental practitioners will have been aware of all scales of solar projects for many years and will have observed PV panels on rooftops and over fields across the country. However, the number of projects, and particularly utility scale projects that are currently in the planning system, gaining consent at a local level, and at appeal, has increased significantly over the past few years and is set to continue. That prompts the question, why?

There are a number of reasons, the most significant of which includes the positive and increasingly robust policy context and support for renewable energy development catalysed by the climate change crisis and successive binding targets flowing from that global context that now requires the UK to achieve net zero by 2050. At set out above, the cost of solar installations has also been decreasing over the past decade and solar energy now represents one of the, if not the cheapest form of renewable energy development. The Government’s Contracts for Difference scheme³⁷ has also incentivised investment in renewable energy by ensuring that developers of expensive scheme with high upfront costs are protected from market volatility in future. Successful developers who win a contract though the auction process will be paid a fixed (indexed) rate for the electricity produced over a 15-year period, meaning that the developer can predict its future revenue. Together those factors have encouraged greater developer confidence and stimulated investment in the market.

The emphasis on a low carbon future, and the fundamental role that clean energy has to play in that will ensure the continuing importance of solar energy development in the UK’s energy mix for many more years. Recent events have also affirmed the need for energy security in the UK, and the benefit of ‘home-grown’ renewable energy that doesn’t rely on foreign and unpredictable supply. However, it should also be noted that the proliferation of solar energy development, especially where it is proposed to be located in the countryside will undoubtedly raise objection from local communities and other interested parties such as the Council for the Protection of Rural England (“CPRE”). Such objection can lead to unfortunate political intervention, even in the context of much needed renewable energy development. In 2013, the increasing levels of objection to onshore wind development prompted the intervention of Eric Pickles, the then Minister for Housing, Communities and Local Government to issue a Written Ministerial Statement (“WMS”) expressing the view that planning decisions on onshore wind were not always reflecting a locally-led planning system, and that “[M]eeting our energy goals should not be used to justify the wrong development in the wrong location.”³⁸

The WMS led to an unashamedly politically driven policy that set onshore wind scheme apart from other renewable technologies, and prevented consent from being granted unless development was in an area identified as suitable for wind energy development in the development plan; and, following consultation, it can be demonstrated that the planning impacts identified by the affected local community have been fully addressed and the proposal has their backing.³⁹ The approach has had a fundamentally negative impact on the promotion of onshore wind, with new development ceasing almost overnight. Since then, there has been a renewed emphasis on offshore wind, since unsurprisingly, people in boats, planes and helicopters appear less inclined to complain about turbines in the view. A similar intervention in respect of solar energy would be catastrophic for the industry, although floating solar projects are now being tested and delivered offshore.

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