Infrastructure Bill [HL]
Written evidence submitted by ClientEarth (IB 39)
1. ClientEarth is a non-profit environmental law organisation. We work with lawmakers and other stakeholders, both in the UK and internationally, to ensure that the law is well designed, implemented and effectively enforced in favour of protecting the environment and human health.
2. We welcome the opportunity to submit evidence to the Public Bill Committee on this important matter.
3. We believe that clause 36 of the Infrastructure Bill, as brought from the Lords (the "Bill"), is incompatible with the Secretary of State for Energy and Climate Change’s capacity to discharge his legal duties under the Climate Change Act 2008 (the "Act").
4. Indeed, it may result in the Secretary of State being placed in a legally untenable position whereby he is unable to avoid a breach of the Act. Such a breach would seriously harm the UK’s position as a leader in the fight against climate change. It could also have serious legal and political consequences for Government.
5. We do not believe that the Government intends the Infrastructure Bill to have this result.
6. Therefore, if clause 36 of the Bill is to be retained, ClientEarth recommends that provision is made to remove the risk of such legal conflicts. This might be achieved in a number of ways; however in the context of the current draft of the Bill and for the purposes of this evidence, ClientEarth proposes the addition of a safeguard clause in the following terms (or similar):
"The duties established by clause 36 are to be read so as to be compatible with those under the Climate Change Act 2008." 
The Climate Change Act 2008
7. The Climate Change Act was passed near-unanimously by the House of Commons in 2008. It continues to enjoy the support of Government  and the Opposition.  Its wider importance is such that it has been suggested that it may enjoy a level of constitutional status. 
8. The Act imposes a number of positive legal duties on the Secretary of State. These include the duty to ensure (i) that UK GHG emissions  have, by 2050, been reduced by 80% as compared with 1990 levels; and (ii) that they do not exceed any of the 5-yearly carbon budgets set pursuant to the Act.  The Secretary of State must also prepare – some years in advance – proposals and policies to allow these carbon budgets to be met. 
How clause 36 might lead to a breach of the Climate Change Act
9. According to clause 36 of the Bill, the Secretary of State will be under a duty to produce one or more strategies for enabling the "principal objective" of "maximising the economic recovery of UK petroleum" to be met, through (for example) the use of equipment used in the petroleum industry. 
10. The Secretary of State is then under a separate legal duty to act in accordance with such strategies when exercising any of a wide range of functions. 
11. Such functions include, for example, those exercised under Chapter 3 of Part 2 of the Energy Act 2011. Under that Chapter, the Secretary of State has certain discretion to approve an application made by a person to the owner of oil or gas processing facilities or an upstream petroleum pipeline to use such infrastructure.  Similarly, the Secretary of State’s power to grant licences for searching for, boring for and getting petroleum pursuant to section 3 of the Petroleum Act 1998 and section 2 of the Petroleum (Production) Act 1934 must also be exercised in accordance with the duties introduced by the Bill. 
12. There is a good deal of uncertainty as to the content of the strategies which will be set out by the Secretary of State. The same is true even of the "principal objective". Indeed, the Explanatory Notes to the Bill suggest a certain circularity: "The strategy will set out what is meant by maximising the economic recovery of UK petroleum." 
13. It seems likely however that the principal objective will be defined broadly: Amber Rudd MP, Parliamentary Under-Secretary for the Department of Energy and Climate Change, commented in the Bill’s Committee stage that "Our aim is to maximise economic recovery of oil and gas from the UK continental shelf in order to maximise long-term added value to the UK as a whole" (emphasis added). 
14. Returning to the example of Chapter 2 of Part 3 of the Energy Act, the effect of clause 36 of the Bill can be imagined. The Secretary of State, in exercising his discretion over whether to approve an application for the use of a relevant piece of petroleum infrastructure, and what if any ancillary rights to grant the applicant,  will be under a duty – according to the relevant strategy – to "maximise the economic recovery of UK petroleum". In other words, if he believes that approving an application will increase "added value to the UK as a whole", his discretion not to approve the application will be diminished. Greater recovery of UK petroleum can be expected to result.
15. This will be the case whether or not the petroleum in question is destined to be exported, or used domestically. In either case, the added value to the UK as a whole stands to increase (economically, if not environmentally) if the recovery is facilitated.
16. However, any petroleum recovered which is used domestically will contribute to the net UK carbon account under the Climate Change Act.  This will impinge upon the Secretary of State’s ability to fulfil the legal duties which he has under the Act. It could result in the Secretary of State being unable to ensure that a carbon budget is met  – or in him being less able to plan in advance a suite of proposals and policies which would enable the carbon budgets to be met.  Both are legally enforceable duties, and the Secretary of State would be liable for a breach of either.
17. This example illustrates how the legal duties established by clause 36 and the Climate Change Act could come directly into conflict. Similar arguments are also applicable in respect of the wider powers of the Secretary of State relating to the discovery and extraction of petroleum which will also become subject to the "principal objective".  According to Amber Rudd MP, "The principle applies to all activities at all stages of the oil and gas recovery life cycle, starting from exploration, through appraisal and development and finally during decommissioning."  The impact of clause 36 on the Secretary of State’s ability to discharge his duties under the Act will be substantial.
18. We believe that the potential for such conflicts will only increase over time, as the progressively tightening carbon budgets under the Act will leave less and less room for the domestic use of oil and gas.
19. A further particular cause for concern is the unquantifiable potential for unintended and unwanted impacts on other laws - in addition to the Act - that results from the uncertain meaning of the "principal objective".
20. As a result, ClientEarth urges that serious thought be given to how the principal objective can be more precisely defined; for example, how it will take into account changing oil and gas prices in the context of the changing prices of alternative sources of energy (whether more or less polluting), and the financial implications of climate change more generally.
21. Finally, we note that clause 36 requires the Secretary of State, when preparing a strategy, to "consult such persons as [he] thinks appropriate".  Given the demonstrated impact of such strategies on the Act, it is plainly appropriate that the Committee on Climate Change  should – at the least – be consulted in such circumstances. We would strongly support an amendment to the Bill which made such consultation mandatory.
Why we believe that the conflict is unintended
22. We believe strongly that the fulfilment of the Secretary of State’s duties under the Climate Change Act is of fundamental importance to his role. We also believe that it is not the intention of Government (or Parliament) to place these duties at risk through the enactment of the Infrastructure Bill.
23. The Parliamentary Under-Secretary of State for the Department of Energy and Climate Change, Baroness Verma, was clear during scrutiny of the Bill at the Report stage in the House of Lords that "Implementing recommendations contained in the Wood review [ie. the purpose of clause 36  ] will be done in a way compatible with the legally binding climate change targets." 
24. Similarly, in recent comments to the House of Commons Liaison Committee on the related question of subsidies for non-renewable energy sources, the Prime Minister suggested that the achievement of ‘green targets’ would not be subject to policies which supported fossil fuels: "That is the policy. That is the approach-to achieve our green targets but at the same time keep our economy safe and secure [by, inter alia, ‘being active in the North Sea’]." 
25 . Furthermore, i n the Government’s response to the Wood review, The Secretary of State for Energy and Climate Change, Ed Davey MP, was implicit that development of the UK’s oil and gas supply would be in accordance with the Carbon Plan, a statutory document produced pursuant to the Act which details how future plans and policies are to meet carbon budgets. 
26. The particular status enjoyed by the Act (see paragraph 7) means that any intended impact upon it would have been the subject of clear and thorough parliamentary scrutiny. The absence of thorough scrutiny of the Bill’s impact on the Act reinforces our view that any such impact (aside from being extremely unwise) is unintended.
27. For the reasons given, ClientEarth believes that clause 36 risks unintentionally bringing the Infrastructure Bill directly into conflict with the duties under the Climate Change Act. There is therefore a need for the Bill to be clarified. The addition of the suggested clause would be sufficient.
 We note that the impact of clause 36 is already expressly limited in other respects by section 9E, to be inserted into Part 1A of the Petroleum Act 1998 (clause 36 of the Bill).
 UN Climate Summit 2014: David Cameron’s remarks ( https://www.gov.uk/government/speeches/un-climate-summit-2014-david-camerons-remarks). See also footnote 24, questions 2 and 9.
 Labour Party Press Release, 12 October 2014 (http://press.labour.org.uk/post/99803155104/to-scrap-the-climate-change-act-now-would-damage )
 A McHarg "Climate change constitutionalism? Lessons from the United Kingdom", Climate Law 2 (2011) 469–484 at 483 Aileen McHarg, now Professor of Public Law at Strathclyde University
 In fact, the closely related "net UK carbon account" – see section 27 of the Act.
 Sections 4 and 8 (particularly section 4(1)( b)) of the Act.
 These must be prepared for all carbon budgets that have been set (section 13(1)); they are set 12 years before the start of each budgetary period (section 4(2)(b)).
 A section 9A to be inserted into Part 1A of the Petroleum Act 1998 (clause 36 of the Bill).
 As described by a section 9B to be inserted into Part 1A of the Petroleum Act 1998 (clause 36 of the Bill).
 Section 9B(c) to be inserted into Part 1A of the Petroleum Act 1998. (When the applicant and owner have failed to reach agreement within a reasonable time: sections 82(4),(5)). See in general sections 82, 83, Energy Act 2011.
 Section 9B(d) to be inserted into Part 1A of the Petroleum Act 1998.
 Infrastructure Bill [HL] – Explanatory Notes (http://www.publications.parliament.uk/pa/bills/cbill/2014-2015/0124/en/15124en.pdf ), para 225
 House of Commons, Public Bill Committee, Infrastructure Bill [Lords], Official Report, 8 January 2015, (afternoon sitting), column 255 (http://www.publications.parliament.uk/pa/cm201415/cmpublic/infrastructure/150108/pm/150108s01.pdf)
 Section 82(11)(c), Energy Act 2011
 See section 27 Climate Change Act 2008
 Section 4(1)(b) Climate Change Act 2008
 Section 13(1) Climate Change Act 2008
 As was noted above, for example: section 3 of the Petroleum Act 1998 and section 2 of the Petroleum (Production) Act 1934
 Ibid.13, columns 255-256.
 Section 9G(2)(a) to be inserted into Part 1A of the Petroleum Act 1998.
 Established under Part 2 of the Climate Change Act
 Ibid. 12, para 224
 House of Lords, Report stage, Infrastructure Bill, 10 November 2014, (afternoon sitting), column 34 (http://www.publications.parliament.uk/pa/ld201415/ldhansrd/text/141110-0001.htm#1411109000477)
 House of Commons Liaison Committee, Oral Evidence from the Prime Minister, 16 December 2014, Question 9.
 "As our Carbon Plan has shown, Britain will still need significant oil and gas supplies over the next decades, while we decarbonise our economy and transition to a low carbon economy." DECC, ‘Government’s Response to Sir Ian Wood’s UKCS: Maximising Economic Recovery Review, July 2014, p.4 (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/330927/Wood_Review_Government_Response_Final.pdf )