Energy Bill

Written evidence submitted by Mrs. V.C.K. Metcalfe (EB 04)

Invitation to comment on the Energy Bill 2016

I am a Community (Parish) Councillor residing in Scotland with a particular interest in matters involving Industrial Wind Turbines and the adverse effects they are having on the environment and subsequent health impacts upon near neighbours to developments:-

1. a. The overall economy and economic welfare of citizens is also suffering due to negative impacts on jobs. The serious demise of industries dependent upon high usage of electricity has been graphically demonstrated by recent impacts on the steel industry, manufacturers, mining and other high energy users. Due largely to wind power subsidies, plus the additional costs of backup power always on standby to cover when the wind doesn’t blow, power prices have skyrocketed.

b. Plunging house prices of near neighbours to developments are undeniable.

2. I strongly support the government in reintroducing the grace period in respect of ROCs and submit that the Energy Bill must now address those ‘checks and balances’ exposed and missing for so long in respect of wind power. Excessive implementation of the technology throughout the whole of the UK is having profound negative effects. Two prime examples being noise impacts upon human and animal health (as evidenced by widely available peer reviewed reports) and water contamination:

a. In respect of noise impacts from wind turbines:

* ETSU-R-97 remains unfit for purpose due to the lack of updated and relevant ILNF data.

* Due to recent reports and studies e.g.

https://www.wind-watch.org/documents/influence-of-infrasound-noise-from-wind-turbines-on-eeg-signal-patterns-in-humans/ there is an urgent need for health monitoring programmes to be introduced for residents now forced to live in close proximity to developments. Ignoring mounting evidence is not an option in a democracy. As health experts are advising for just this one area of effect, concurrent full spectrum acoustic testing as well as physiological monitoring (sleep disturbances and heart rate) as well as particularly an EEG would help reveal the circumstances under which this damaging neurostimulation is occurring which is strongly suspected to be related to acceleration and deceleration of sound pulses as well as (or perhaps even instead of) actual peaks. Wild seal research from 2011 in Scotland by Gotz and Janik suggests that in mammals, the acoustic startle reflex (and sensitization) is stimulated by impulsive sound but not the actual peaks of sound energy in the lowest part of the spectrum - for this important research see:  http://waubrafoundation.org.au/resources/bmc-neuroscience-repeated-elicitation-acoustic-startle-reflex/ .  

b. In respect of water contamination currently being reviewed by SEPA and awaiting a response, is the Request for Action lodged by Mrs. Susan Crosthwaite. Extracts:

It must be noted that the access to justice provisions of the Directive on Environmental Liabilities are only a limited implementation of the broader rights to challenge acts and omissions of public authorities related to the national law on the environment, e.g. Article 9(3) of the Aarhus Convention3. Clearly, the maintaining of the proper quality of groundwater and surface water for drinking, is a provision of (not least) the Water Framework Directive, and is related to the national law on the environment. So therefore, it is submitted that the broader provisions of Article 9(3) apply.

 

In supporting the Whitelee3 Inquiry it challenges many implicated developments through breaches of the Water Frameworks Directive and Environmental Liabilities Directive :  

The prevention and remedying of environmental damage should be implemented through the furtherance of the "polluter pays" principle, as indicated in the Treaty and in line with the principle of sustainable development. The fundamental principle of this Directive should therefore be that an operator whose activity has caused the environmental damage or the imminent threat of such damage is to be held financially liable, in order to induce operators to adopt measures and develop practices to minimise the risks of environmental damage so that their exposure to financial liabilities is reduced.’

 

3. Complaint ACCC/C/2012/68 was upheld in finding the U.K. in breach of Article 7 of the Aarhus Convention and invitations have been issued to comment upon the UK’s Second Progress report on compliance with the Aarhus Convention. Summarised in the documentation of 02.01.2016 at:

http://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/envppcccom/acccc2014112-ireland.html     ..... is the real legal argument being tested out in the Communication . All options have to be open, including the 'zero option': 

http://curia.europa.eu/jcms/upload/docs/application/pdf/2013-01/cp130001en.pdf 

4. My response to UNECE on V9 summarises everything, but whilst the Scottish Government is holding back from ruling on the Whitelee 3 Inquiry, or responding to the Request for Action, developments in Scotland (and those elsewhere in the UK on water catchment areas) are being allowed to pollute the environment unabated. The full response can be found here: http://www.windsofjustice.org.uk/2016/01/re-decision-v9n-concerning-compliance-by-the-united-kingdom/ but extracts from the Comments on the second progress report from the UK on Decision V/9n follow below:

‘1a. I will not be alone in finding grounds for grave concerns over plans to curtail judicial reviews as outlined. As others have already observed, these proposals would unacceptably diminish the financial protection for members of the public bringing environmental law cases before the courts in England and Wales and clearly any changes to procedures in England are likely to be followed by Scotland and Northern Ireland.

b. If implemented, the UK would be inviting further and justified complaints to the Aarhus Convention Compliance Committee from UK citizens adversely affected by such curtailments.

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d. Judicial reviews are ‘part and parcel’ of the public participation process so it follows that the UK having been found non-compliant with Article 7 before (as in ACCC/C/2012/68) it makes little sense to risk a repeat ruling. In addition, the ACCC has recently ruled the U.K. Government in breach of its obligations in respect of court costs, leading to the current cost protection limits being set at the current figures. Therefore any proposals to alter the cost limits in environmental cases amount to restriction and/or prevention of proper legal challenges to those developers who apply for proposals which will harm the environment. Local Planning Authorities would also fail in their obligations under the Aarhus Convention Treaty by approving them. In order to avoid undermining the rule of law, citizens must not be made to feel that the courts costs attached to their attempts to protect the environment by bringing court actions in accordance with an International Treaty will make this impossible.

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2. The problems being faced by UK citizens, and especially those residing in Scotland when looking at the overall picture of Aarhus Compliance, is that whilst public participation takes place to a degree via consultations and Freedom of Information requests, the results and suggestions made are rarely taken up. Essentially public participation exercises become a ‘box ticking’ method of compliance and little if anything, improves. FoI requests can be lengthy and time consuming with Government agencies and departments often taking way beyond the time allocated for replies. For example, the dialogue held with the CAA over Air traffic Safety involving wind turbines radar and turbulence issues. The questions related to the FoI are yet to be answered despite numerous assurances since October 2015 that a reply will be sent. That response with questions is attached (To Mark Stevens Re. FoI Act request F0002371pdf) to demonstrate the seriousness of this little appreciated aspect.

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In respect of water contamination and wind power developments the experience at Whitelee, the largest onshore windfarm in the UK, South of Glasgow Scotland, should be outlined as due to its importance, the extensive evidence from monitoring over seven years are relevant, not only to Articles of the Convention, but breaches of EU Water Directives.

Scottish Power Renewables (SPR) having monitored private water supplies for 7 years were fully aware that there was contamination to these supplies and yet they failed to comply with planning conditions for the Whitelee Extension by notifying the local authority and local residents. During that time, in one road alone, residents, their visitors (especially very old and young) were intermittently very unwell with severe gastric upsets and had no idea that their water supply was contaminated.

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During the height of Whitelee windfarm construction in 2008, the degree of bacterial contamination in untreated drinking water reliant on the Whitelee windfarm water catchment area was recorded up to 730,000 coliforms/100ml in 2008 (UK and WHO standard = 0) This was considerably worse than drinking untreated drinking water from the Limpopo river in Mozambique in 2004, which at its worst was 870/100ml. (Challenges Facing Drinking Water Production In Mozambique- A Review Of Critical Factors Affecting Treatment Possibilities Matsinhe N. P et al Submitted for publication in the Journal Water Science and Technology).

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In 2015, untreated private water supplies were supplying over 3% of Scotland’s population with an estimated 150,000 PWS, mostly in rural Scotland (Scottish Government Figures 2015) In contrast to the untreated water in Mozambique, over the course of windfarm construction at Whitelee, 2006 to 2013, monitored PWS regularly had bacterial contamination running into the thousands. These PWS, like most PWS in Scotland, had previously shown only intermittent low level contamination. At Whitelee, four PWS lost their water supplies altogether due to sediment related blockage of supply pipes and three of these households had to install boreholes at their own expense.

Scottish water (SW) was contracted by SPR to monitor the PWS and provide accredited results. SW was therefore fully aware of the dangerous, contamination levels found in these test results. When contacted, SW’s response about the failure to disclose this public health information, (Prof. Simon Parsons, Customer liaison and services development manager) was that their duty was to protect commercial client confidentiality. This was surely a conflict of interest with the prospect of profit out weighing public health. SW did not/would not, even notify in confidence, the local Consultant in Public Health (CPHM) so that the Local Authority could independently confirm results and allow private consumers to take simple measures like boiling water or drinking bottled water.

To compound this, Scottish Water regularly failed to meet standards for public potable water from the Amlaird water treatment works, because of the deteriorating quality of raw water from the two public reservoirs on the Whitelee Windfarm site.

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DIRECTIVE 2004/35/CE ' Request for Action ' submitted to the Scottish Government and being reviewed by SEPA shows water test results from other water treatment works, demonstrating that this is a growing problem recurring at other reservoirs on SW land associated with windfarm development. Groundwater monitoring at Whitelee windfarm also demonstrated EU list 1 pollutants appearing in groundwater over 400 times the allowable drinking water levels, as well as increase in minerals (iron, manganese and aluminium) more than 20 times over baseline and well above allowable statutory levels in drinking water.

Surface water monitoring at Whitelee also demonstrated a documented deterioration from monitoring conducted both by Glasgow and Edinburgh Universities and by SEPA (Scottish Environment Protection Agency) over seven years , such that contrary to requirements of the Water Framework Directive(WFD),( EU Water Framework Directive(2000/60/EC, Article 7 (7)) there was a deterioration of the overall status of water bodies arising from the Whitelee windfarm site persisting until at least 2013.

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Drinking Water Protected Areas have to be protected with the aim of avoiding any deterioration in their quality that would compromise a relevant abstraction of water intended for human consumption.

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Through the ‘Request for Action’, this has been further brought to the attention of the Scottish Government, the Scottish office, DECC, DEFRA and the Directorate of the Environment in Brussels, yet no action is being taken to prevent further pollution as developments are allowed to proceed.

Even though:

DIRECTIVE 2004/35/CE Article 5 Preventive action:

1. Where environmental damage has not yet occurred but there is an imminent threat of such damage occurring, the operator shall, without delay, take the necessary preventive measures.

2………whenever an imminent threat of environmental damage is not dispelled despite the preventive measures taken by the operator, operators are to inform the competent authority of all relevant aspects of the situation, as soon as possible. 4. The competent authority shall require that the preventive measures are taken by the operator. If the operator fails to comply with the obligations laid down in paragraph 1 or 3(b) or (c), cannot be identified or is not required to bear the costs under this Directive, the competent authority may take these measures itself.

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It is perhaps relevant that water pollution is no different to the smells, noise and polluting fumes a s regards http://www.echr.coe.int/LibraryDocs/DG2/HRHAND/DG2-EN-HRHAND-01(2003).pdf   Page 60. 

· Protection from environmental nuisance: In López Ostra v. Spain196 the Court established the full applicability of Article 8 to the context of environmental nuisance. The applicant complained about smells, noise and polluting fumes caused by a waste treatment plant situated a few metres from her home and the infringement of her right to respect for her home, private and family life that this caused. On the facts of the case, the Court noted that the applicant and her family had had to live with the plant for a number of years and it considered the domestic findings related to the damage caused to their health to be convincing. Even taking the State’s margin of appreciation into account, however, it held that the State did not succeed in striking a fair balance between the interest of the town’s economic well-being – that of having a waste treatment plant – and the applicant’s effective enjoyment for her right to respect for her home and family life.

· What medical evidence will be required to establish an interference with home and family life caused by pollution? Given the difficulty which may be experienced in proving a causal link between environmental pollution and damage to health, it is important that the Court accepted in Lopez Ostra that actual damage to health was not required by Article 8.

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· 197 This suggests, therefore, that while evidence is necessary to illustrate an infringement with the enjoyment of home and family life under Article 8, it is not necessary to establish a clear and direct causal link between the pollution and the health problems of the applicants.

The European Convention on Human Rights:  

· http://www.echr.coe.int/Documents/Convention_ENG.pdf  

· Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

3. Of particular relevance to issues of public participation is the fact, as noted by various UK groups and individuals, that we are now all at risk of being unable to follow through with complaints in the UK Courts.

Mr. Paul Mobbs for example, notes his concerns which serve to highlight Aarhus Convention problems arising in his warnings found at : http://www.theecologist.org/essays/2986484/uk_government_attacks_public_right_to_environmental_justice.html Excerpts follow (my emphasis):

"If the public are unable to challenge regulators because they cannot muster the resources to do so, any failures will pass unchallenged. The Government’s policies of ‘environmental austerity’ will proceed unhindered by adverse court rulings.

Little publicised government plans to 'reform' court costs are intended to foreclose access to environmental justice for all but the wealthiest individuals and communities. Meanwhile cuts to agencies and regulators will make it ever harder for them to do their jobs –

1. Making public participation in environmental protection all the more important.’

2. Restricting the right to affordable environmental justice

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3. What the Government are seeking to do with their current consultation is very subtle - and will be difficult for many without legal experience to understand fully.

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6. Firstly, what is 'environmental law'? The Department of Justice state that not all legal challenges are covered by the Convention's costs protection requirements. That is because they narrowly interpret Aarhus protection as applying only to European Directives on environmental matters - not to UK-specific planning or heritage / conservation law even where it involves 'the environment'.

7. This means that many decisions which the public might want to challenge, especially those on planning, would not have their costs capped.

8. The next significant change is the definition of what constitutes a 'member of the public'. The Department of Justice claim that " ... wording of the current rules does not expressly specify the types of claimant which are eligible for costs protection."

9. In other words, when the Convention definition states 'member of the public', they take that to mean a single person - not a collection of people.

10. That could exclude local and national groups from launching actions on behalf of their members. And while currently the costs cap of £5,000 or £10,000 applies irrespective of how many people bring a case, in future it would be £5,000 or £10,000 per person involved - significantly raising the costs to a community bringing a joint case.

11. Perhaps the most chilling part of these proposals relates to the timing for when costs protection is granted to those bringing a case. Currently those applying for judicial review are told immediately if they can get costs protection for their case - and if their case fails at this first hurdle, they still only have to pay £5,000 or £10,000 at most in costs.

12. What the Department of Justice propose is that the public must succeed with getting leave to appeal before they are told if they can have costs protection. That would mean that those bringing the action, if they fail to get leave, might be sued by the opposing party for their full costs in defending the application - effectively preventing anyone without the means from the risk of bringing even a well-founded case before the court.

4. Current unprecedented flooding events in the UK can be associated with areas where the developments of wind farms have aided the potential for increased water run-off in the upper reaches of river catchments. Indeed the Environmental Statement for Whitelee wind farm predicted a 10% increased flood risk for the River Irvine lasting for 10 years. This river flooded in Kilmarnock last year trapping shoppers who were rescued by boat. Evidence of other towns being similarly affected is compounded by a study from Aberdeen University which can be viewed at: http://bankssolutions.co.uk/powys/wp-content/uploads/2013/05/7-Smith-et-al-Windfarms-on-undegraded-peatland.pdf  

5. Finally , I commend 1 Submission to Northern Ireland Assembly Environment Committee ... 1 Submission to Northern Ireland Assembly Environment Committee ... by Pat Swords BE CEng FIChemE CEnv MIEMA especially:

1.5 How the EU’s Renewable Energy Targets will not be met – particularly by the U.K.

It is imperative that technologies now and in the future are far more robustly examined before being imposed on a vulnerable population. Cutting wind power subsidies in the manner that the UK Government has pledged to do is correct and overdue.

January 2016

 

Prepared 25th January 2016