Ministers warned of legal threat to nuclear strategy

Government lawyers have warned ministers that legal challenges could delay its plan for the construction of nuclear power stations and exacerbate potential energy shortages.

The fears are outlined in an internal advice note drawn up by City law firm Berwin Leighton Paisner for the Department of Business, Enterprise and Regulatory Reform (BERR), looking at consultation on construction plans and how wider policy changes may affect the programme.

"The government aims to get national policy to parliament as quickly as possible, but it will face further legal challenges which are capable of knocking back the programme by a year or more, if it continues to give the impression that the [outcome of the nuclear consultation] process is a foregone conclusion," it argues.

The lawyers highlight at least nine potential problems after the successful Greenpeace challenge to "flawed" market research conducted for the BERR. The Market Research Standards Board agreed with Greenpeace that consultation for the 2008 energy white paper had not been conducted in an even-handed way.

Ian Trehearne and Tim Pugh, from the planning and environment practice of Berwin Leighton Paisner, say the first risk of legal challenge will come with the "justification process" of the planning bill, which is scheduled to pass into law before the end of the year.

This could be followed by trouble early next year from the introduction of the strategic environment assessment (SEA) and strategic site assessment (SSA) of new power stations.

There could be court action "if the SEA and SSA processes become separated and inconsistent with European law as embodied in national law", the advice note says. Care must be taken over the nomination of relevant sites for the construction of nuclear stations, the lawyers argue.

"There seems no doubt that if the system is to be capable of working properly without causing major disturbances and political dissatisfaction, the formulation of national policy in national policy statements will have to be precise about locations and sites. If not, the process risks being bedevilled by arguments about the potential of better sites.

"The consultations being undertaken by BERR in relation to nuclear sites at present seek to reduce the risk in this connection. The way has been prepared carefully, but it remains to be seen whether the new system will be able to deliver in a sensitive and transparent way which is satisfactory without delay from the courts or electoral upset."

The potential legal pitfalls facing ministers are highlighted as the government tries to encourage the private sector to invest in a new generation of nuclear stations as the country's ageing fleet of reactors gradually comes off line.

A new generation of nuclear plants is seen as crucial in meeting a future energy gap as well as providing low-carbon electricity to alleviate climate change.

EDF, the French power group, has already promised to forge ahead with new stations, the first of which it hopes to have operating by 2017. Many experts question whether that schedule is realistic, and there is a risk of shortages as old power stations are decommissioned.

The government is confident it can avoid any energy crunch but the note from Berwin Leighton Paisner makes clear this is far from guaranteed. Ann Harrison, a partner with commercial law firm Beachcroft and chair of a national planning group at the Environmental Law Association, said the advice note showed that ministers were likely to face legal obstacles every step of the way. "They are going to have to be spot on in everything they do to minimise the risk of challenge," she said.

The government's attempt to fast-track planning applications through its new bill could have the opposite effect. "The new system is more complicated and could just invite further challenges, slowing everything up", Harrison said.

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