Fishy Nuclear Information and a Question of Principle
Cornerstone Climate, Public Law and Judicial Review, Planning and Environment
The Information Tribunal is today considering an interesting question: is an entity which is responsible for the construction and operation of a nuclear power station, and the generation of electricity from that power station, a public authority for the purposes of the Environmental Information Regulations 2004 (“EIRs”)?
Fish Legal, a not-for-profit association that uses the law on behalf of anglers to fight pollution and other damage and threats to the water environment, and the Information Commissioner (“ICO”) both contend the answer is yes. HPC Generation Company (HPC Ltd) (“HPC”), part of the EDF Group and the company responsible for the construction and operation of Hinkley Point C nuclear power station, contends the answer is no.
The answer is important, not just in relation to the information request made by Fish Legal (with which HPC refused to engage because it contends it is not a public authority), but more widely, given a further new nuclear power station, Sizewell C, is described as being a replica of Hinkely Point C, and the UK government is committed to a resurgence in civil nuclear power. A considerable amount of environmental information will be involved. There will likely be significant public interest in such information, relevant to transparency; building public trust in the decision-making processes; allowing more public understanding of those processes (including any role played by lobbyists) and facilitating more informed and meaningful public participation in the decision-making processes.
Factual Background
There will also be questions about fish. Nuclear power stations require large volumes of water for cooling: Hinkley Point C is planned to take in over 130,000 litres of water per second from the Severn Estuary to cool the plant’s two nuclear reactors. In order to minimise the impacts of this water abstraction on the relevant fish populations, having regard to the Severn Estuary partly being protected for the conservation of fish, the Requirements in the Development Consent Order included the design, approval and installation of an Acoustic Fish Deterrent (“AFD”). A wide variety of estimates have been produced for the number of fish that could be killed by the cooling water intake. HPC claimed around 56 tonnes a year would be killed; the Environment Agency concluded around 178 tonnes of fish would be sucked into the intake per year; but an independent panel warned in a report to the Welsh Government in 2021 that up to 182 million fish per year could be captured and many would not survive.
AFDs trialled on other nuclear sites have been shown to reduce the overall entrapment of fish in the cooling water system by around 60%, with up to 95% for the more hearing sensitive schooling species. So when HPC indicated it to make an application for a material change to the permission for the construction of Hinkley Point C to remove the AFD, Fish Legal requested information from HPC for information under the EIRs
The Legal Arguments
Under the EIRs, a private company can be a public authority for the purposes of the EIRs if (1) it is entrusted by national law to perform public administrative functions (known as “entrustment”) and (2) the company has special powers beyond those which result from the normal rules applicable in relations between persons governed by private law. The ICO decided that both aspects of that test were met.
The Tribunal will decide whether it is correct that:
- HPC has been entrusted via sections 4 and 6(1) of the Electricity Act 1989, combined with HPC’s electricity generating licence; sections 1 and 4 of the Nuclear Installations Act 1965, combined with HPC’s nuclear site licence, and the The Hinkley Point C (Nuclear Generating Station) Order 2013 – i.e. the development consent order (“DCO”) under the Planning Act 2008;
- The construction of a nuclear power station and the generation of electricity via that power station is the performance of a service of public interest;
- HPC has special powers, mainly granted via the DCO, including various powers to make byelaws and compulsorily; and
- There is a sufficient connection between the HPC’s activities and the activities of the State to justify treating HPC as a public authority.
In light of parties’ arguments, the Tribunal will need to grapple with the contention that, in order for there to be “entrustment”, the private body must be under a legal duty to perform at least part of the relevant function. The ICO and Fish Legal contend that the imposition of such a duty is plainly captured by entrustment (so it is a sufficient condition), but that entrustment does not require identification of such a duty (so it is not a necessary condition). What is required is entrustment of duties, activities or services in relation to the environment, and the latter two entail an element of discretion as to whether, and how, they are carried out or provided.
Fish Legal has raised a further point, which the Tribunal will decide: is HPC a public authority because the Office for Nuclear Regulation (“ONR”) exerts a “decisive influence pursuant to the powers which it has been allocated by the national legislature”, resulting in HPC, in key areas of its business, not exercising genuine autonomy in its decision-making.
The argument is that, while the Appellant has flexibility in producing the various arrangements required for the construction of Hinkley Point C and operation of the site, it does not have genuine autonomy because of the decisive influence that the ONR is exercising in a significant number of areas, including influencing HPC to make its arrangements so as to give the ONR administrative powers to permission certain activities on the site. The extent of the ONR’s influence extends to regulating security of tenure, with oversight of HPC’s ability to, for example, convey or let the site or any part of it or even grant an easement over it; regulating HPC’s human and financial resources and its management systems through oversight of any changes to those which may affect safety; and through HPC having given the ONR permitting functions in relation to the construction and installation of new plant.
Estelle Dehon KC is representing Fish Legal.
