Greenpeace Wins its High Court Bid

15 Feb 2007

The High Court delivered judgment in Greenpeace v Secretary of State for Trade and Industry on 15th February 2007.  Greenpeace sought to challenge the Government’s decision in the Energy Review Report 2006, The Energy Challenge, published on 11 July 2006, to support nuclear new build as part of the United Kingdom’s future energy-generating mix.

The submissions of Greenpeace centred on the promise by the Government in the 2003 Energy White Paper, “Our energy future – creating a low carbon economy”, to carry out full public consultation on the issue before it decided whether or not to change its declared policy position not to support nuclear new build.

The High Court gave Greenpeace declaratory relief that their legitimate expectation had been frustrated and that the procedure followed was unfair, such that the decision to support nuclear new build was unlawful.

Sullivan J held that the consultation exercise had been very seriously flawed.  The consultation document: “Our Energy Challenge. Securing clean, affordable energy for the long-term”, gave every impression of being an issues paper, rather than a consultation paper on the substantive issue, as to whether the Government should support nuclear new build in the future.  As a consultation paper, it was inadequate since it offered no proposals and there was insufficient information given to consultees to enable them to make an intelligent response.

With regard to the issue of nuclear waste arising from new build, Sullivan J found that the consultation had not merely been inadequate but had been misleading in relation to the position of the Committee on Radioactive Waste Management (CORWM). CORWM’s draft report was only published two weeks after the consultation period had closed.  Sullivan J held that fairness, in this situation, required consultees to be able to respond to this new material.

Kassie Smith was acting for Greenpeace as a junior barrister in this high profile case.