ENDS report: Defra and the Welsh government are likely to have to pay European commission’s legal costs for breaching air pollution rules at Aberthaw power station
The UK breached EU law by allowing a coal-fired power station to emit too much air pollution, the court of justice (CJEU) has said.
In a reasoned opinion, published on 28 June, the CJEU said the UK’s defence of how it regulated Aberthaw power station did not stack up and it should be forced to pay legal costs.
The European commission brought the case to court last year, on the grounds that not enough had been done to address excessive emissions of nitrogen oxides (NOx) from coal-fired Aberthaw in the Vale of Glamorgan. It had first raised concerns in June 2013.
The plant’s permitted NOx emission limit was reduced from 1,200 milligrams per normal cubic metres to 1,100mg/Nm3 in 2012, but this was still well above the 500mg/Nm3 limit set in the EU’s large combustion plant directive – now part of the industrial emissions directive (IED). From 1 January 2016, the limit dropped even further to 200mg/Nm3.
Defra and the Welsh government claimed that they could use an exemption in the law for plants burning solid fuels whose volatile content is less than 10%. They argued that this exemption was specifically designed for plants such as Aberthaw which uses locally sourced anthracitic coal that is more difficult to burn and is economically important to the local area.
They added that Aberthaw’s operator RWE was investing in the plant and its NOx emissions were expected to fall to 450mg/Nm3 by the end of 2017.
But the court was not convinced. It pointed out that the annual average volatile content of Aberthaw coal was above the 10% limit and said there was no official evidence that the exemption was designed with Aberthaw in mind.
The next step is a formal judgment from the court. If it agrees, which is likely, Defra and the Welsh government will have to change how Aberthaw is regulated to comply with the rule as soon as possible. If they do not, they face being dragged back to court and could be fined. The CJEU also recommended that the UK should pay the European commission’s legal costs.
Aberthaw has also been a major sticking point in UK discussions with the EU over a plan to delay compliance with air pollution limits from large power plants.
In the end Aberthaw was excluded from the plan, and would only be reinstated the UK wins its case in the CJEU. Since that looks unlikely to happen, the plant may be at risk of closing.
Brexit may prove a complication in future but for the moment the UK is still bound by CJEU rulings.