Natural England is a threat to Britain’s energy security

Britain's first nuclear plant in three decades faces delays

Our fears have been confirmed. Natural England have decided that the £700m or so spent by EDF protecting fish affected by Hinkley Point C wasn’t enough. It appears that in their role as a Statutory Consultee, Natural England will advise the Marine Management Organisation, not to grant the nuclear power plant a water discharge permit. Unless Natural England changes its position, Hinkley Point C will miss its 2030 switch-on date.

The Telegraph reports Natural England told EDF that even after spending £500m on special low-velocity intake heads, £150m on a fish recovery and returns system, and £50m on an acoustic fish deterrent (AFD), Hinkley Point C is still deemed to have an adverse effect on protected species of fish in the Severn Estuary.

It should be noted that despite much mocking, the acoustic fish deterrent (otherwise known as the ‘fish disco’) appears to be very effective. Natural England’s Chair Tony Juniper recently posted a photo of himself ‘electronically tagging’ a Twaite Shad, one of the species of fish affected by Hinkley Point C, to test the deterrent. The tagged fish study found that the number of protected shad within 30m of the plant’s intake fell by 93% when the AFD was on. The study also found that on (or off) it was extremely rare for salmon, another legally protected fish, to get within 100m of the power plant.

This evidence wasn’t enough for Natural England, who have instead told EDF that they must secure additional ‘compensation’. What that further compensation would involve is unclear. In the absence of the AFD, EDF previously agreed, in the absence of the AFD, to create 900 acres of salt marsh across several locations along the Bristol Channel, including in Arlingham, a 70 mile drive from Hinkley Point. The effectiveness of the AFD implies that the full 900 acres of salt marsh previously agreed will not be necessary, however Natural England are yet to provide any detail to what level would be seen as acceptable. Not only is the saltmarsh proposal deeply unpopular with the farmers who would have their land acquired via compulsory purchase, if Natural England continues to press for additional compensation measures in advance of operations it risks delaying Hinkley Point C’s switch-on date by years.

The problem is twofold. First, the farmers don’t want to lose their livelihoods and sell to EDF. As a result, there’ll be a long-drawn out legal battle that will need to be settled before work can begin. Second, salt marshes, like Rome, aren’t built in a day. One similar project, in Gloucestershire, has taken five years to get up and running. Crucially, Natural England won’t be satisfied until the salt marsh is in place (and there’s evidence for it working). And, EDF needs the permit before that 2030 switch-on date. My understanding is that the permit is necessary for works due as soon as 2028. In other words, if Natural England demands the salt marsh then expect long delays.

In theory, EDF could apply to change the Development Consent Order to remove the requirement for a salt marsh. This isn’t a fast process, nor is it fool-proof. There is a risk of legal challenge and ministerial delay. EDF could end up back where they started.

Here’s what’s at stake. When complete, Hinkley Point C will produce enough electricity to power six million homes, and provide 7% of the UK’s total electricity. All of that power will be low-carbon, and crucially, reliable. Nuclear, unlike wind and solar, works around the clock whatever the weather.

If there’s no salt marsh shaped delay to Hinkley Point C, then EDF should have one unit online by 2030, with a second coming online in 2032. What happens to the grid if that 2030 switch-on date is pushed back two years? Well, Britain Remade actually modelled this in 2024. We tweaked the assumptions in the National Energy Systems Operator’s model for Clean Power to see what would happen if, among other things, Hinkley Point C Unit 1 missed its 2030 deadline.

Our assessment is that a two-year delay to Hinkley Point C Unit 1, even with reactors in Heysham and Torness kept online, would mean about 24TWh less clean firm power on the grid, between two to four billion cubic metres more gas burnt, and as a result between four and eight million additional tonnes of CO2 into the atmosphere.

The impact on bills is less certain and depends on gas prices. If they fall slightly, then the bill saving might be small (a few pounds) but if conflict abroad leads to another spike (and the closure of the Strait of Hormuz just might) then we could be talking about £20 for each year of delay for every household in Britain. This is all reliant on keeping the older advanced gas cooled reactors (AGRs) online. If regulators decide that cracks in their graphite core mean they cannot be safely operated past 2030, then the impact on bills (and beyond) would be even greater.

In short, if Hinkley Point C is delayed Britain will be more vulnerable to fossil fuel price spikes. Natural England is a threat to Britain’s energy security.

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Natural England, it should be said, disputes the story. They have published a rebuttal and its Chair, the environmentalist Tony Juniper, has been active on twitter defending the organisation. I don’t find their response convincing at all.

There’s a degree of blame shifting. They state that they ‘do not sign off’ nuclear projects. Their job, they argue, is merely to advise other regulators whether or not Hinkley Point C is (or isn’t) compliant with laws designed to protect wildlife. At one point, they suggest that failing to heed their advice will mean the project will be delayed regardless due to legal challenges.

Yet, this is far from clear cut. When I’ve spoken to planning and environmental lawyers, some have argued that disproportionate decisions, like requiring £700m to save a small number of legally-protected fish, are not an inevitable result of the Habitats Regulations but rather are a result of culture at the organisations. They argue that in fact the regulations give substantial room for regulators to apply them proportionately, such as the level of evidence demanded and whether or not certain impacts are ‘adverse’. In fact, this is often given as a defence of the Habitats Regulations. Hate the player (or at least, argue the player needs better human resourcing), not the game.

The Government’s lawyers seem to believe Natural England does have more leeway. They are consulting on updating Natural England’s statutory guidance to encourage more proportionate decisionmaking. (The PM has sent them and other regulators a strongly worded letter telling them they need to be more proportionate.)

This is welcome, though I can’t help but worry what if Natural England are right and that this really is what the law requires? That’s why I believe going further and using primary legislation to change the Habitats Regulations (or at least, give the guidance sufficient legal weight) is the prudent course of action.

One problem we have is a lack of accountability. Natural England deny having ever ‘demanded design changes’. This is similar to their line that the £120m bat tunnel isn’t their fault. Now, it is true Natural England does not have a team of engineers that designs £500m low-velocity side-entry intake heads or £120m bat sheds. But, they do have enormous power over what can and can’t be built. If they assess that your project will have an adverse impact on a protected habitat or that your proposed mitigation won’t work, then it forces the developer to either cancel the project or design a mitigation that will pass their muster.

Where I am more concerned is that Natural England (or at least, its chair) appears to dispute some of the facts. Tony Juniper tweeted a link to a debunked Wildlife Trust post that claimed that Hinkley Point C’s special intake heads (£500m) and fish-returns system (£150m) were not environmental measures, but vital to the plant’s operation. (The implication being that without either, the plant’s cooling system will get clogged with millions of fish.) This isn’t the case. As I and the Nuclear Industry Association have pointed out, other plants in the Estuary and similar plants overseas do not include these features, suggesting they are not in fact operationally necessary.

Natural England also disputes that they risk delaying the plants opening. I think this is misleading. Their stated position is ‘Natural England does not control the project timetable and is not aware of any delay to the project timetable arising from the current work on AFDs.’ Yet, the dispute isn’t over whether or not the fish deterrent is delaying the project, it is about whether or not the fish deterrent is sufficient to mitigate the plant’s impacts. If not, then EDF will be required to provide additional compensation in the form of a 900 acre salt marsh. It is extremely unlikely that this salt marsh will be ready by then.

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This really matters. The Government needs to act fast.

So, how can we avoid an unnecessary delay to Hinkley Point C?

First, it is vital that the Government press on with reforms to the Habitats Regulations. In particular, reforms to ensure that very small adverse impacts (e.g. one salmon every ten years) do not count against projects would make it far less likely projects like Hinkley Point C end up in this situation. The guidance they are currently consulting on is, for the most part, in line with what John Fingleton recommended in his Nuclear Regulatory Review. There is a chance, but not a guarantee, that this will be enough to change Natural England’s stance.

The Government must go further. The King’s Speech promised bills on Nuclear Regulation and Energy Independence. The Government should use them to go further and put the changes into primary legislation so there’s no way they can be unpicked with legal challenges.

But, passing legislation, at least complex legislation like that, takes time. And EDF can’t rely on that legislation passing unscathed – the Planning and Infrastructure Act itself was watered down as it went through Parliament.

One option, call it the nuclear option, would be to pass a targeted one-line bill to deem Hinkley Point C’s existing mitigations sufficient to satisfy the relevant DCO, marine licence and Habitats Regulations requirements. Unlike complex legislation, a limited project-specific bill could be passed quickly in Parliament where there’s strong support for nuclear in both houses.

In the long-run however, it is important to ensure that this can never happen again. The most radical measure within the Fingleton Review was a call to create an alternative route to comply with the Habitats Regulations for nuclear energy. Instead of the standard process, there would be a recognition that nuclear will have large impacts on nature, but that the benefits of nuclear (for climate and energy security) are even larger. If requiring bespoke mitigations delays nuclear delivery (or adds costs by making designs more complex) then that too is bad for the environment. Fingleton’s proposal was that instead of studying potential impacts and designing bespoke solutions, developers could simply make a large payment to a national nature fund.

This is less about direct cost savings (Hinkley Point C might pay close to £700m under this scheme) but financial certainty (£700m won’t become £1bn), speed (fewer surveys and fish tagging studies), and design certainty (plant designs can be fully repeatable with as few site-specific changes as possible).

What’s interesting is that the Labour government has half-accepted this recommendation. Nuclear projects for defence will get a special alternative route, but civil nuclear projects don’t. Instead, civil projects (e.g. for energy) will be able to use new ‘Environmental Delivery Plans’, a measure from the recently-passed Planning and Infrastructure Act. In theory, EDPs, which identify likely environmental impacts from projects and require developers to pay into a Nature Restoration Fund to offset those impacts, could work.

There’s just one problem. The Government body tasked with setting EDPs up? Natural England.