Infrastructure Bill [HL]
Written evidence submitted by Friends of the Earth England, Wales & Northern Ireland (IB 30)
1.1 Friends of the Earth campaigns for everyone to have a right to healthy places to live and for fair shares of our resources in order to safeguard future generations. Friends of the Earth has long campaigned for a participative, democratic and fair planning system that delivers sustainable development and safeguards the public interest. Friends of the Earth has a network of over 200 local groups, many of whom are engaged in local planning in order to deliver more sustainable places, helping to tackle climate change, increase biodiversity and support high quality development.
1.2 The Infrastructure Bill in its provisions on highways, new build, planning and incentives for fossil fuel extraction does not enable a low-carbon economy – one of the stated aims of the Coalition Agreement  : "The Government believes that climate change is one of the gravest threats we face, and that urgent action at home and abroad is required. We will implement a full programme of measures to fulfil our joint ambitions for a low carbon and eco-friendly economy."
1.3 The kind of infrastructure we build has a major impact on the fitness of our economy for the 21st century and our ability to build a genuinely sustainable, inclusive and fair society. The UK will face the following pressures and needs over the coming decades:
· increasing impacts of climate change, even if emissions are reduced to avoid the worst – more droughts in summer and more flooding in winter;
· an increased and more urbanised population;
· in turn, more demands on land and water abstraction; the urgent need to sharply reduce carbon emissions and increase resource productivity (the circular economy package).
The UK cannot afford (at best) a suite of infrastructure assets that are stranded or of no use in the future, or (at worst) an underlying infrastructure that is an active contributor to the problems that we face.
1.4 The costs of failing to tackle climate change have been documented by Lord Stern, and are also seen elsewhere e.g. in the cost of post flooding clean up. The costs of not creating new economic successes through regulation are also clear. According to the Confederation of British Industry, "in trying economic times, the UK’s green business has continued to grow in real terms, carving out a £122 billion share of a global market worth £3.3 trillion, and employing close to one million people"  . However, the Infrastructure Bill does not contain measures to promote the green economy, but instead weakens the planning framework – one of the systems which can encourage green technology and in construction.
1.5 PwC published a report, the ‘Low Carbon Economy Index’ (November 2012)  that highlights that our decarbonisation agenda is not where it needs to be: "Even doubling our current rate of decarbonisation, would still lead to emissions consistent with 6 degrees of warming by the end of the century. To give ourselves a more than 50% chance of avoiding 2 degrees will require a six-fold improvement in our rate of decarbonisation." The Governor of the Bank of England has also announced his concern that "fossil fuel companies cannot burn all of their reserves if the world is to avoid catastrophic climate change, and called for investors to consider the long-term impacts of their decisions"  .
1.6 Friends of the Earth have identified three major issues in relation to the Infrastructure Bill:
· Costly: the road investment strategy and strategic highways company would lock the Government into an expensive and unnecessary road expansion, failing to tackle the real problems faced by people and families in getting onto safe, reliable and affordable public transport
· Undermining planning: both the measures to allow deemed consents and the measures around zero carbon homes allowing carbon emissions to be bought off serve to undermine public trust and quality of development.
· Incentives for extraction of conventional and unconventional oil and gas (clause 36 and clauses 38 – 43): the measures for right of use and duty to maximise recovery are incompatible with the need to reduce greenhouse gas emissions, and to protect land in the public interest.
2. Key changes
Part 1 (Clause 3) Road Investment Strategy
2.1 This is an extremely damaging proposal that locks up unnecessary and unwanted investment in roads without considering the effects on local economies, climate change or the environment (including air quality). These clauses should be deleted. National road investment must be framed by the ambition of the UK Climate Change Act, with full parliamentary scrutiny and oversight, and by the need to deliver a sustainable transport system that works for everyone as part of a low carbon economy. In Friends of the Earth’s view the Highways Company proposals also fail public interest, public participation, and local impact tests.
Part 4 (Clause 26) Deemed discharge of planning conditions
2.2 This clause undermines public participation and public trust in the planning system. The Government is squeezing local planning authorities’ time to consider the implications of decision (by shortening consideration times beforehand) and now it is shortening local authorities’ ability to consider the fulfilment of conditions. This is all in the context of hugely damaging cuts to local planning authority resources (see NAO figures on reduction on spending on planning and development services of 46% between 2010 and 2015). Friends of the Earth has always argued that a properly resourced planning service will provide a better service to developers and ensure that the public interest is met.
2.3 However the Government’s continued deregulation of the planning system undermines public trust (e.g. rules for developers to bypass local authority decision-making, planning policy rules which enable developers to override environmental concerns). There is a delicate balance between developers and communities and the Government is hampering local authorities’ ability to mediate this process. Conditions are set on development to make them acceptable – if developers can fulfil these conditions without this being properly checked it is obvious that poor development outcomes will result.
2.4 There is a risk that people who have engaged with the planning system may find that developers are not complying in the way they should. Local democracy and decentralisation should be strengthened by reform as set out in the Coalition Agreement  : "The Government believes that it is time for a fundamental shift of power from Westminster to people. We will promote decentralisation and democratic engagement, and we will end the era of top-down government by giving new powers to local councils, communities, neighbourhoods and individuals." Clause 26 is yet another transfer of power away from communities and councils.
(Clause 32) Off-site carbon abatement measures
2.5 The point about building zero carbon homes is that the householder should be sold a home that is zero carbon. The potential for abuse in a system where a builder can ‘buy off’ the requirement to reduce carbon dioxide emissions undermines the whole concept of the zero carbon home. This is not even an exception - it is a rule to be applied to new buildings. The principle of a developer payment means that the future owner could literally be left ‘in the cold’. England and Wales could be left with a suite of unfit for purpose new buildings. There is no rational explanation for this approach given the contribution this regulation could be making to new jobs and products in the green building economy. Wales should also not be subject to Westminster legislation on this matter.
2.6 The Government’s own cost review  showed how costs for homes built to code level 3 had fallen by three quarters over three years. It is technically feasible to build zero carbon homes, the evidence from Scandinavia and Denmark, Germany and Austria is sufficient. The impact assessment for the consultation preceding these clauses only considered the cost to the developer, and not to the householder or future owner. As CLG’s Zero Carbon Homes Impact Assessment  states "The main policy objective for Allowable Solutions is to provide house builders with a comprehensive, cost effective way of meeting the zero carbon homes standard." (paragraph 5.1). What the Government has not considered are the cost to the householder of rising bills and retrofit costs. We understand the desperate need for new housing and for developers to be able to deliver, but the quality of this housing, and the energy bills of the occupiers must also be considered.
2.7 In order to drive innovation and technological development towards zero carbon homes, the Government must provide a framework where those who deliver the best are rewarded. What the Government seems to be proposing is that developers buy their way out of improving development instead. We believe that innovation should be encouraged rather than flat-line or even drop. Householders should be encouraged to seek the best quality rather than have to accept a limitation. These provisions about carbon payments will be extremely opaque for the public and lack accountability. In our view the clause should be deleted and instead an exception test applied.
Part 5 (Clause 33) The community electricity right
2.8 We welcome the community electricity right, but think it should be mandatory rather than left to the discretion of the Secretary of State to introduce. In Denmark the Renewable Energy Act legislation on mandatory share offers includes a 4.5km radius around the turbine for the eligibility for the share offer. If this is not taken up a second round is advertised within the local authority area. There is little evidence that commercial developers in the UK have consistently viewed their past developments as enterprises with the community – they have rather concentrated on community benefit funds, rather than real partnerships that include enabling community ownership of the installations. In contrast only 11% of renewable energy generation in Germany is owned by the utilities. Farmers, individuals and co-operatives own around 50% of the renewable energy generation  . The evidence is that giving people a stake in energy generation increases engagement, awareness and fairness and is an essential part of the transition to a low carbon energy system. The powers should also be devolved to Wales for the Ministers to make their own decisions on ownership of energy generation in Wales – given the current devolutionary debates.
Part 5 (Clause 9A) The principal objective and the strategy
On the maximising economic recovery of UK petroleum
2.9 Clause 36 is not consistent with the spirit of the Climate Change Act and the UK in the context of global action on meeting climate change targets and should be deleted. Oil and gas companies in the North Sea have already been given more than £2.7bn of incentives (financial year 2013 – 14) fuelling oil and gas production  . This is at the same time as increasing uncertainty for clean renewable energy with investment halved since 2010  . We know that only one fifth of proven fossil fuel reserves can be burnt if the world is to avoid 2 degrees of climate change. Therefore, clause 36, which maximises economic recovery of oil and gas, should be deleted.
Part 5 (Clause 38 + 39) Petroleum and geothermal energy: right to use deep level land
2.10 Friends of the Earth is of the view that the exploitation of unconventional oil and gas is incompatible with action on climate change, the need to apply the precautionary principle, and has unacceptable adverse impacts on communities and the environment. Permitting a right of use for petroleum access is a fundamental and constitutional right which should not be brought forward in this manner, particularly given that 99% of consultation respondents objected to the proposed law change and 74% of the public oppose the change  . In addition, the Bill proposes new clauses that apply to Wales and Scotland (as well as England), undermining the cross-party commitment to the devolution of more power within weeks of these public commitments being made following the referendum in Scotland.
2.11 The clauses mean that there is a proposed right of use that in effect overrides the landowners’ rights. It then proposes a series of ‘rights of use’ that includes allowing fracturing within the land. Section 55 of the Town and Country Planning Act 1990 sets out the meaning of development as "(1) "development, means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land." We are concerned that the UK Government has not properly considered the implications of allowing such an extensive ‘right of use’ when a democratically accountable decision-making process is required for the development. The policy set out in the consultation by DECC was clear that planning permission would still be required. However we remain concerned that the UK Government does not contradict the fundamental principle of local democratic planning consent for this type of development. We recommend that for the sake of clarity and reassurance that the need for planning permission is present on the face of the Bill.
2.12 The scope of the use is very broad and it is not clear whether the clause covers disposal of waste but the term "keeping" substances or infrastructure in the land suggests that it does. This must be urgently clarified, and was not explicitly consulted upon by DECC. Waste management and disposal is regulated by the Environment Agency through the grant of Mining Waste permits (under the Environmental Permitting (England & Wales) Regulations 2010). Flowback fluid which comes back to the surface after fracking contains many harmful substances including heavy metals (eg: cadmium) and Naturally Occurring Radioactive Material. Government must make absolutely clear that this is without prejudice to obtaining and complying with Mining Waste permits (and other environmental permits as necessary).
2.13 There should be no disposal permitted under the right of use clauses and the Government should make this clear.
2.14 There is nothing onerous in requiring companies to notify landowners – whose identity should in any event be ascertained – in effect sending a letter to a person whose land is proposed to be worked by a third party. The reintroduction here of a form of notification leaves it up to the Secretary of State to decide whether or not there should be notifications for landowners and interested parties.
2.15 There is no explicit reference in the clauses to protection of groundwater, which is required under EU law (Water Framework Directive and Groundwater Directive) and we recommend amendments to the clauses to make clear that only substances which do not pose a risk of pollution to groundwater should be permitted in connection with the right of use. For these reasons, we are also concerned that the minimum distance of 300 metres from the surface is inadequate. There is good evidence that fractures in rock have travelled up to 600 metres in the United States and up to 1,200 metres in Norway and West Africa. Academics have called for a minimum depth of 600 metres from aquifers. Given this evidence and given the Government’s assurance (made when consulting on these changes) that fracking typically takes place at least a mile beneath the surface, we propose an amendment which ensures that automatic access is only given at a depth of 1,500 metres below the surface (or 1,200 metres from the aquifer, whichever is further).
2.16 Further incentives for exploiting unconventional fossil fuels though greater deregulation is not consistent with meeting climate change targets. There are two clear conditions, set out by the IPCC under which shale gas could help cut carbon on a temporary basis. Firstly, if methane leakage is "low" and secondly, if shale gas replaces coal. It is doubtful that either condition is going to be met. Firstly, recent studies have shown that the risk of methane leakage is high. Secondly, the timescale for developing a shale gas industry in Britain means that it would not be used to replace unabated coal, which needs to come offline much sooner than the fracking industry could be developed. Furthermore, in the absence of a legally binding global climate change deal, unconventional gas is likely to result in coal being exported and burnt elsewhere. This is already happening: in the USA shale gas contributed to millions of tonnes of unused coal being exported, undermining many of the carbon savings made. Fracking is a risky and unpopular technology. The focus should be on cutting demand for gas through a radical energy efficiency programme and through speeding up the development of the UK’s immense potential for renewable energy. The case for shale oil is even weaker – even some prominent supporters of shale gas see no climate case for shale oil  . The argument is the same: exploiting UK shale oil would just add to the global stock of unburnable carbon.