GreenWeek4

ISSN 2049-5889 Solar warning Met Office warns predicted dip in solar activity will not offset global warming P3 Climate change risks UK Government releases list of top 100 effects of climate change P7 Marine energy plan South West named home to the UK’s firstmarine energy park P8 ClickGreen’s review of all the week’s news, views, research and analysis with a focus on low carbon and sustainability GreenWeek By Stuart Qualtrough Legal precedent has potential to trigger ‘stampede to the courts’ G overnment Ministers have been warned they have passed the point of no return with their appeal bid to the Supreme Court as this week’s ruling has wider implications for other Whitehall departments. The Department for Energy and Climate Change has found itself compelled to challenge the decision of three Appeal Court judges who upheld an original High Court ruling that its rushed cuts to the Feed-in Tariff were unlawful. However, an unsuccessful final appeal could clear the way for the UK’s solar industry to argue for damages and loss of earnings with a claim of tort that Secretary of State Chris Huhne failed in his duty of care. One senior lawyer said: “It is usual to sue another party under contract law but there is no contract here, only a legislative subsidy. However, it may be possible to bring a successful court action against DECC for damages with a claim of tort. “A stampede to the courts may not be in the industry’s best interests currently as it may nudge the Supreme Court towards allowing the appeal if they believe the Government is facing the prospect of a huge raft of damages claims.” Many in the sector had criticised DECC’s decision to apply direct to the Supreme Court after its legal team were denied leave to appeal on Wednesday. Some suggested it was a political stunt to kick the issue into the long grass, while the new contingency date of March 3 nears. However, according to the lawyer, Supreme Court decision will have far-reaching implications for Whitehall “It could therefore be expected for this to be explored and tested at the highest court in the land, the Supreme Court, which is mixed news there is no going back for Energy Ministers as the Court of Appeal ruling touched on issues of constitutional law and may have laid down a precedent with far-reaching consequences for other departments. The lawyer told GreenWeek the DECC legal team are well within their rights to seek a Supreme Court appeal, and added: “The problem is the Court of Appeal judgement was based on a point of constitutional law. The appeal court judges may have laid down a precedent by ruling on whether the Secretary of State acted within his powers – this has much wider implications for the Government and decision-makers. Volume 5: Jan 27, 2012 Solar appeal could clear the way for massive damages claims for the solar industry but explains the department’s course of action.” The lawyer explained the Government has 28 days to prepare and fileitswrittensubmission and administrators indicated to ClickGreen it would take a further two months for a panel of three Supreme Court Justices to decide if the appeal should be allowed. If permission is granted, it would take a further six months for the Supreme Court and legal teams to schedule time to conduct the hearing. In effect, this means that the ultimate verdict on the change from the 43.4p higher tariff to 21p will only affect people who have had their solar panels installed and registered from December 12 to March 2. It will also stop a second rush to install panels ahead of the new March 3 deadline as the uncertainty will remain in the market until a Supreme Court decision is reached – at the earliest in April. Howard Johns, chairman of the This is just political game-playing to manage the Feed-in Tariff budget by back-door tactics Howard Johns, Chairman, Solar Trade Association Solar Trade Association, said a second appeal to the Supreme Court was an exercise of “political gameplaying to manage the Feed-in Tariff budget by back-door tactics”. He added: “The Government could have at any time just backed down – they never needed to re-write the law over solar PV. It’s clear they want to keep the market in uncertainty to manage the number of registrations that way, but they cannot be allowed to start introducing retrospective cuts.”

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