Law Report: Thorp decisions were lawful: Regina v Secretary of State for the Environment and others, Ex parte Greenpeace Ltd and another. Queen's Bench Division (Mr Justice Potts), 4 March 1994 (CORRECTED)

CORRECTION (PUBLISHED 9 MARCH 1994) APPENDED TO THIS ARTICLE

Authorisations for the discharge of radioactive waste were lawfully granted without a local inquiry since all the economic, health and environmental issues had been rationally considered by the minister who, having balanced the detriment and benefit arising from the authorisations, concluded that the authorised emissions were justified as producing a net benefit.

Mr Justice Potts dismissed an application by Greenpeace and Lancashire County Council for judicial review of the Secretary of State for the Environment's decisions not to call in applications by British Nuclear Fuels plc for authorisations to discharge radioactive waste from a thermal oxide reprocessing plant at Sellafield and not to hold a local inquiry, and the decision of the Secretary of State for the Environment, the Minister of Agriculture, Fisheries and Food and the Inspectorate of Pollution to grant authorisations pursuant to the Radioactive Substances Act 1993.

Following a public inquiry in 1977 and parliamentary debate, BNFL obtained planning permission in 1983 for the construction of Thorp which was completed in 1992. In 1992 BNFL applied for new authorisations for the discharge of radioactive wastes to sea and air in order to operate Thorp. Draft authorisations were subject to public consultation in 1992, and further consultation in 1993 to consider wider issues such as justification for Thorp by balancing detriment and benefit. In December 1993 the ministers decided not to hold a local inqiury and granted the authorisations.

Andrew Collins QC, Owen Davies and James Cameron (Greenpeace) for Greenpeace; Nicholas Blake (County Solicitor) for the council; Stephen Richards and Jon Turner (Treasury Solicitor) for the ministers; George Newman QC and Alan Griffiths (Slaughter & May) for BNFL.

MR JUSTICE POTTS said that the 1993 Act did not require prior justification of radioactivity from Thorp in terms of net benefit. However, the Euratom Directive was concerned with justification of particular practices. The inquiry in 1977 had not justified the activity of thermal oxide reprocessing at Sellafield. The 1993 Act could be construed, without distortion, to accord with the directive. The ministers erred in concluding that justification was not relevant. There was a legal obligation to justify the grant of the authorisations.

The ministers in fact considered justification and considered the economic aspects, such as contracts and viability and were entitled to conclude that there was a good economic case for proceeding with Thorp. The ministers considered dry storage as an alternative to reprocessing and took the view that they were not true alternatives. Their approach was not irrational and their conclusions were not perverse.

The ministers dealt with health risks, acting on the advice of the inspectorate and the National Radiological Protection Board. They applied international and national standards and were entitled to conclude that compliance with those limits would protect the public from unacceptable risks. The ministers' approach to justification could not be faulted.

The construction of Thorp and the bringing into operation of Thorp and consequent discharges were one project which predated Directive 85/337EC. The ministers were not under a legal duty to provide an environmental impact assessment. However, the information provided met the substantive requirements of the directive.

The consultation process satisfied all relevant requirements. The 1993 Act conferred a wide discretion on the minister as to whether to hold a local inquiry. It might be thought that a minister sensible to the scale of representations and the desirability of allaying public anxiety would have directed an inquiry. But that was not the issue. The minister, in refusing to direct an inquiry, was acting lawfully within the powers conferred on him by Parliament. The application therefore failed.

CORRECTION

In yesterday's law report, 'Thorp decisions were lawful', the solicitors for BNFL were Freshfields.