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Government faces legal challenge over exclusion of municipal waste incinerators from emissions trading scheme

An environmental campaigner has initiated an application for judicial review of the government’s decision to exclude municipal waste incinerators from the UK Emissions Trading Scheme.

Georgia Elliott-Smith, advised by law firm Leigh Day, argued that by doing so the Government had unlawfully ignored aspects of the Paris Agreement on climate change and had acted to help businesses deal with Brexit rather than from any motive related to climate science.

This will replace the EU Emissions Trading Scheme after the transition period from leaving the EU ends.

Leigh Day has sent a pre-action letter to the Department for Business, Energy and Industrial Strategy (BEIS),

Its action also includes a challenge to the government’s decision to permit firms to roll forward carbon emissions allowances to future years, and to the setting of a cap on allowable emissions above the level of ‘business as usual’ emissions.

Excluding municipal waste incinerator emissions means that the UK will fail in its obligations under the Paris Agreement, concentrating instead on the need to achieve net zero by 2050, Leigh Day said. 

It argued that commitments under the Paris Agreement to limit global temperature increases to 1.5 degrees centigrade above pre-industrial levels and to start to reduce them as soon as possible.

Both these objectives required substantial reductions in emissions and so should include incinerators.

The claim is on the grounds of an unlawful failure to consider the Paris Agreement commitments and that irrelevant considerations were made in deciding to exclude municipal incinerators, when the Government stated in June in a consultation response: “The complex environmental requirements placed on municipal waste incinerators, as well as their role in diverting waste from landfill, make it difficult to include them in a UK emissions trading scheme”.

Leigh Day said s44 of the Climate Change Act 2008, required the government to make rational decisions and that omitting incinerators was irrational and used s44 for an improper purpose “to alleviate pressures that business currently face as a result of departure from the EU”.

Rowan Smith, a lawyer at the firm, said: “The defendants have sought to argue that the net zero by 2050 commitment is co-extensive with the Paris Agreement.

“This is wrong in law. The Intergovernmental Panel on Climate Change has made clear on numerous occasions that the Paris Agreement requires substantial emissions reductions to be made in the short term.”

Ms Elliott-Smith said: "The excuse presented by the Government, that the scheme has been designed in this way to make Brexit easier, is not a lawful reason for ignoring international climate change commitments.”

A BEIS spokesperson said: “It is not appropriate to comment on the specifics of potential legal challenges.”

Mark Smulian

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