An environmental campaigner has applied for a judicial review of the emissions trading scheme (ETS) due to be introduced as a replacement for the UK’s participation in the EU ETS at the end of 2020.
In a letter sent to business and energy secretary Alok Sharma, lawyers acting on behalf of Extinction Rebellion activist Georgia Elliott-Smith said the scheme as currently proposed conflicts with the government’s commitments under the Paris climate change agreement.
The letter highlighted three features in particular as being problematic: the exemption for waste incineration plants; the opt-out for installations with carbon dioxide emissions of less than 25,000 tonnes per year; and arrangements to roll forward unsold allowances to future auctions.
In justifying its decisions, the lawyers from Leigh Day said the government’s had only considered its commitments under the 2008 Climate Change Act, which now obliges the UK to reduce greenhouse gas emissions to net zero by 2050, and not its commitment under the Paris agreement to do its part in keeping global warming “well below” two degrees Celsius above pre-industrial levels.
“In particular, the defendants failed to consider the pressing need to reduce emissions in the short to medium-term, as distinct from achieving net zero emissions by 2050,” the letter stated.
It said the decision to allow unsold emissions allowances to rolled forward to future auctions “appears to have been motivated only by considerations of the market, with no regard for climate impact at all.”
Citing the recent ruling in which the Court of Appeal overturned the transport secretary’s decision to approve the construction of a third runway at Heathrow airport following a legal challenge by Friends of the Earth, the letter said: “As the Court of Appeal… made clear, the Paris agreement commitments relate not only to 2050 target but also to the period after this.
“Similarly, the Paris agreement commitments relate to the intervening period before the 2050 deadline for net zero emissions: they require the UK to seek to limit global temperature increases to 1.5°C above pre-industrial levels and to reach peak global emissions and start to reduce them ‘as soon as possible’.”
The lawyers said the decision to exclude waste incinerators from the UK ETS will mean “huge volumes of emissions are ignored by the scheme and there will be no mechanism to account for, offset, or incentivise the reduction of emissions from incinerators.”
They continued: “The emissions from fossil sources are particularly important, as these are emissions that would not be emitted through other forms of waste disposal: plastic waste stored in landfill does not break down and release greenhouse gas emissions for an extremely long time, while recycling similarly ensures the carbon stored within the fossil sources is not emitted in the short to medium-term.”
“Obviously, waste reduction in the first place would prevent the need for waste disposal, and thus the need for emissions from these fossil sources to be managed at all. Inclusion of municipal waste incinerators could also potentially encourage investment in carbon capture technology and in more efficient sorting technology to remove plastics prior to incineration.”
The letter said the emissions from burning waste from fossil sources alone amounted to a “staggering” 6.6 million tonnes of carbon dioxide equivalent (mtCO2e) last year – up from 5mtCO2e in 2017. It said the government had decided to ignore these emissions despite other types of waste management producing much less.
It said this issue is compounded by the opt-out for installations emitting less than 25,000 tonnes carbon dioxide per year, which would provide a “double lock” for many incinerators and mean that “a substantial portion of the UK’s emissions are unnecessarily excluded”.
Following the addition of a Market Stability Reserve to the EU ETS to soak up surpluses, the lawyers said the decision to allow unsold allowances to be rolled over to future auctions in the UK version of the scheme is also in direct conflict with the government’s stated intention to deliver a replacement that is at least as ambitious environmentally. They said the motivation was “the protection of the market, not the need to reduce emissions”.
Elliott-Smith, who is the managing director of environmental consultancy Element4 but brought the case personally, has launched a crowdfunding campaign to pay for the legal challenge.
“Ignoring incineration – simply because it’s cheaper – will be disastrous,” she stated on the appeal page. “In fact, I believe it is directly against the Paris agreement which requires governments to reduce greenhouse gases to avoid catastrophic climate change. It’s time the government paid attention.
“Make incinerators pay for the pollution they cause. Winning this case will stop incinerators from getting away with polluting our cities and our homes. We know that 80 per cent of incinerated waste could be recycled; we know there’s an alternative.”