Close
On 8 June, World Oceans Day, Blue Marine Foundation (BLUE) stood with a coalition of concerned local groups from around the Severn estuary against corporate giant EDF Energy in a planning appeal concerning the Hinkley Point C nuclear plant.
The coalition was made up of BLUE’s Legal Unit, the Somerset Wildlife Trust, the Wildfowl and Wetlands Trust, the Severn Rivers Trust and local anglers: Burnham Boats and the Bristol Channel Federation of Sea Anglers.
Background
Hinkley Point C, currently being built in Somerset, is designed to have water-cooling systems which will abstract sea water to cool the plant. Hinkley C’s tunnels, built 3.3km offshore, will abstract a volume of water greater than the flow of the biggest river in the UK, the Severn itself. Along with that water will be vast numbers of marine organisms. Thus, despite the designation of the Severn estuary as a marine protected area under the Habitats Regulation, the site being adjacent to an internationally recognised Ramsar Site, a national nature reserve in Bridgwater Bay and various rivers upstream of the project having designations which protect migratory species, EDF was given permission to proceed subject to installing three engineering measures: a fish return system, an acoustic fish deterrent device and an advanced intake head. The acoustic deterrent was the only one of the three measures which had been used in practice – the other two had only been tested through modelling, and no one really knows how they will fare in the dark waters of the Severn until the new power station is switched on, due sometime in 2026.
The Case
In 2019, EDF applied to the Environment Agency to remove the acoustic deterrent requirement, which it claims cannot be installed in the turbid Severn waters, something it just seemed to have noticed – despite the Severn having one of the largest tidal ranges in the world. The acoustic deterrent is important. It works by stopping fish species which are sensitive to sound from approaching the water abstraction points and getting sucked through the system and killed. Removal of the acoustic deterrent was only possible if EDF could prove that no damage would be caused to the protected sites. If complete mitigation of harm was not possible, the only legal way forward for EDF was to compensate for the environmental harm (for example by creating new habitats). The Environment Agency sensibly suggested the environmental compensation route but EDF refused and decided to appeal.
EDF argued that the legal test for harm is not about harm to the site, but only to some of the species contained in the site. Their argument essentially slices and dices the ecosystem with some species not being considered (out goes the massive number of invertebrates) and others being related to entire populations present in the North East Atlantic. Their approach was further hampered with a poorly constructed research method considering limited and convenient datasets. EDF’s arguments made the marine protected area designations almost meaningless and, if allowed to proceed, will set a terrible precedent for coastal developments affecting other marine protected areas. Most major developments in sites protected by this legislation admit harm straight away and negotiate a permitted form of environmental offsetting. EDF’s approach here was highly unusual and confrontational.
Members of our coalition had independently been increasingly horrified by EDF’s stance and took the unusual step to become a party in the appeal process. Within the coalition lies a wealth of knowledge specific to the Severn estuary – from co-founders of the ground breaking Unlocking the Severn project (the Severn Rivers Trust), to the Wildfowl and Wetlands Trust (set up by Robert Falcon Scott’s son Peter and acknowledged world experts on estuarine conservation) to local conservation stakeholders, Somerset Wildlife Trust to on-the-ground knowledge of behaviour not just of fish but the challenging marine environment of the Severn itself, local anglers. Our approach was to raise scientific and legal arguments not presented by the other parties. We unearthed shocking truths as we questioned EDF witnesses – incomplete, flawed and outdated datasets were a recurring theme. We argued that outdated data was used by EDF despite the availability of more recent and additional data concerning fish populations. We also brought forward evidence showing that EDF’s calculations were wrong, contributing to an underestimation of fish that could be killed. We drew attention to restoration projects for the once bountiful and charismatic sturgeon, which had not been considered by EDF but which are likely to be impacted by Hinkley C during its 60 years of ceaseless abstraction.
On the legal side, we examined laws which had not been properly considered, such as the Water Framework Directive, the Marine Strategy Framework Directive and the South West Marine Plan, which required a “net environmental gain” from the application: an obligation EDF’s advisers had simply ignored – which perversely they tried to blame on us, even though it is clearly the applicant’s job to prepare a planning application, not their neighbours. We were ably represented by barrister Brendon Moorhouse from Guildhall Chambers in Bristol, with some of the legal underpinnings prepared by Dr Thomas Appleby of UWE, our chief legal affairs adviser.
In short we argued that the law provides much more than the protection of specific species and the physical structure of designated sites; it aims for an ecosystem-based approach to environmental protection: those causing harm should fix it, and with marine planning now in place in the Severn – improve the environment. Fortunately, or unfortunately, the Severn estuary is in a heavily degraded state after a millennium of large engineering projects and there are plenty of large-scale conservation measures which could be taken to offset the harm caused by the power station. It would have been better for EDF to spend its money undertaking restoration rather than pouring millions into consultants’ fees to attempt to prove no harm.
The Aftermath
Our intervention in the appeal has provided the groundwork – both legal and scientific – for those future infrastructure projects like Hinkley C which, although essential for our economy, could impact severely on the environment. Such an example is Sizewell C nuclear plant in Suffolk (another EDF project) which will be a replica of Hinkley C. Environmental groups are already worried about the impacts the plant could have.
Our work will demonstrate, we hope, that it is much better for this type of infrastructure project to admit harm at the start and work with local conservation expertise, from regulators such as the Environment Agency, the Devon & Severn IFCA and others, to academic institutions to local conservation bodies. Simply subcontracting this vast amount of work to a single consultant, CEFAS, who on the one hand are a government agency and on the other a consultant (so both poacher and game keeper) does not engender trust from local stakeholders. We believe an inclusive approach would have been cheaper too. Potential delays to the £25 billion project and huge expenses associated with the public inquiry could have been avoided if EDF had not chosen to be so adversarial.
The Planning Inspector will give his advice to George Eustice, the Secretary of State, at some point toward the end of August. The ultimate decision will rest with the government. Only then will we know if the current government’s good intentions toward the environment are translated into concrete actions.
