B e f o r e :
THE Hon. MR JUSTICE COLLINS
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| | R (Friends of the Earth Ltd. And Greenpeace Ltd.)
| Claimant
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| | - v -
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| | Secretary of State for the Environment, Food and Rural Affairs
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| | and
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| | Secretary of State for Health
| Defendant
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(Transcript of the Handed Down Judgment of
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Lord Lester of Herne Hill Q.C., Michael Fordham & Ben Jaffey (instructed by Greenpeace & Friends of the Earth for the Claimants)
Philip Sales & Paul Nicholls (instructed by Solicitors Department for Environment Foods & Rural Affairs & Department of Health for the Defendants)
David Pannick Q.C., Alan Griffiths & Dinah Rose (instructed by Freshfields Bruckhaus Deringer for British Nuclear Fuels Ltd)
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MR JUSTICE COLLINS:
The challenge in this case is to the decision of the Secretaries of State dated 3 October 2001 that the proposed manufacture of MOX at Sellafield by British Nuclear Fuels Plc (BNFL) is justified in accordance with the relevant European Directive. On 17 October Ouseley, J directed that the application for permission should be adjourned to an oral hearing on notice and that the substantive hearing should follow if permission were granted. He ordered the service of evidence within 14 days. The application came before me on 8 November 2001. I decided that permission should be granted to claim judicial review and, with the concurrence of counsel, directed that all procedural steps should be waived or abridged so that the hearing before me was treated as the hearing of the substantive claim. The need for speed is because BNFL intended (if possible) to take what have been described as “irreversible implementation steps” on 20 December 2001.
Most fuel for nuclear reactors is made from enriched uranium oxide. Some of the uranium is during the process converted into plutonium. In addition, waste products are generated. The waste products in time make the fuel less efficient and so it is sent for reprocessing in the course of which the waste products are removed and the plutonium is reclaimed. It then has to be stored or recycled. The reprocessing is carried on at Sellafield in the Thermal Reprocessing Plant (THORP) and the plutonium, which belongs to whichever customer has sent the fuel for reprocessing, has either to be stored or returned to the customer.
It has been known for some time that nuclear reactors can operate efficiently using a fuel called MOX, which is a mixture of plutonium oxide and uranium oxide. The manufacture of MOX enables the reclaimed plutonium to be recycled. This has the advantage of reducing the amount of stored plutonium and saving the use of fresh uranium so that the environmental hazards of mining new uranium can be reduced. In addition, it avoids the need to transport the plutonium back to the customers or for reprocessing in a third country. MOX fuel in the form of what are known as ceramic pellets is said to be less attractive to terrorists and safer than plutonium (which is transported in the form of plutonium oxide powder).
Between 1994 and 1996 BNFL constructed a mixed oxide fuel plant at Sellafield to enable it to manufacture MOX fuel. The plant is known as SMP. In November 1996, it applied to the Environment Agency (EA) for variations to the gaseous and liquid discharge authorisations. EA asked BNFL to provide information specifically relating to the SMP and began a process of consultation to decide whether the manufacture of MOX was justified. On 3 November 1998 EA published its proposed decision which was that the operation of the SMP to produce MOX fuel was justified, but it referred the matter to the then responsible Secretaries of State. It stated in Paragraph 3.3 of the proposed decision:-
"In reaching its proposed decision, the [EA] has not taken any view on the wider policy issues of plutonium management strategy. The [EA] is concerned about these wider policy issues and considers that major developments at Sellafield are national and international matters and that, given the significant political and economic issues, relevant government departments should be involved in considering the [EA’s] proposed decision”.
It is to be noted in the light of the ground of challenge to the lawfulness of the Secretaries of State’s ultimate decision that the EA stated in Paragraph 1.7:-
"The [EA] received the application from BNFL in November 1996, when construction of the MOX plant was virtually completed and after the capital cost (£300 million) had been incurred. It is unsatisfactory that the [EA] has no powers under the Radioactive Substances Act 1993 to require an application to be submitted for a new plant prior to its construction. The time at which an application is received is crucial to the [EA’s] involvement in the regulation of new plant. The [EA] is dissatisfied that it was unable to consider the full economic case for the MOX plant. It is seeking a change in the legislation to prevent a similar situation occurring in future."
The concern was that the construction costs had to be disregarded in accordance with standard economic practice in assessing the economic case for SMP because by the time the application was made those costs had been incurred and so were what are known as “sunk costs”. It is this disregard which has been said to be unlawful and so to vitiate the decision under attack.
On 11 June 1999 the Secretaries of State then responsible indicated a provisional conclusion in favour of justification of the full operation of SMP but concluded that they needed further consultations on the economic case for it. At the same time, they decided that uranium commissioning could go ahead but without prejudice to the ultimate decision on the justification for SMP. If that decision was unfavourable, BNFL would have to bear the costs of decommissioning. As a result, further consultations took place, the claimants each being at all material times consulted. In the Spring of 2001 the Secretaries of State decided to instruct independent analysts to evaluate BNFL’s updated economic case and A. D. Little (ADL) were accordingly instructed in April 2001. ADL reported in July and on 27 July 2001 a suitably redacted version of their report was published. Friends of the Earth responded in August and on 3 October 2001 the decision now under attack was made by the Secretaries of State. This claim was lodged on 5 October 2001.
The duty to justify the manufacture of MOX fuel arises under the relevant Council Directive which is 96/29/EURATOM of 13 May 1996. That Directive came into force on 13 May 2000 and governs the decision made by the Secretaries of State. However, when EA made its report in November 1998, the governing Directive was in a somewhat different form and so the relevant considerations were not identical. This is of importance to the way in which BNFL and the Secretaries of State put their case since the previous Directive required that a site specific practice be justified whereas the present directive requires justification of a generic type or class of practice. The claimants say that this makes no difference in the circumstances of this case since the practice has to be carried out at Sellafield, there being no other site or potential operators, and so the question of economic justification inevitably and rightly focused on SMP.
The Radioactive Substances Act 1993 contains no requirement for justification, but, on the principle set out by the E.C.J. in Marleasing .SA v La Comaercial Internacional de Alimentacion SA[1990] ECR 1 - 4135 a Member State is obliged if possible to apply its legislation in conformity with a relevant Directive. This may mean reading words into legislation or applying it through conforming Administrative action. So it was that in R v Secretary of State for the Environment and others Ex parte Greenpeace Ltd. [1994] 4 All W.L.R. 352 Potts, J decided there was a legal obligation to justify any activity resulting in exposure to ionising radiation in accordance with the then operative Directive, namely Euratom 80/836. That case involved a challenge to the decision of the Secretary of State and the relevant Minister to authorise the operation of THORP. As it happens, I, as counsel, represented Greenpeace Ltd in that case. Accordingly, the parties were all told that I would only deal with the present case if everyone agreed that I could. That agreement was forthcoming.
The material provisions of Directive 80/836 were Articles 6(a) and 13.
6(a) read:-
"The limitation of individual and collective doses resulting from controllable exposures shall be based on the following general principles: (a) the various types of activity resulting in an exposure to ionising radiation shall have been justified in advance by the advantages they produce ..."
Article 13 provided:-
“1. Each Member State shall ensure that the contribution to the exposure of the population as a whole from each activity is kept to the minimum amount necessitated by that activity, taking account of the principles set out in Article 6(a) and (b).
2. The total of all such contributions shall be kept under review ...”
These provisions led Potts J to conclude (at p.368b) that a combination of the Directive and ICRP 60 (to which I will refer shortly) were concerned with justification of particular practices which affected particular individuals in particular circumstances, the type of activity in that case being thermal oxide reprocessing at Sellafield.
The principle of justification stems from the system of radiological protection recommended by the International Commission on Radiological Protection ICRP). Paragraph 112(a) of Publication 60 reads:-
"No practice involving exposures to radiation should be adopted unless it produces sufficient benefits to the exposed individuals or to society to offset the radiation detriment it causes (The justification of a practice)".
112(b) and (c) spell out the need for optimisation of protection and individual dose and risk limits. In the light of the wording of the relevant Articles of the Directive and the need to have regard to ICRP 60, as was confirmed by Mr. Advocate General Jacobs in Re Ionising Radiation Protection, ECCommission v Belgium [1993] 2 C.M.L.R. 513 at 524, it is not surprising that Potts J reached the conclusion he did.
The wording of Directive 96/29 is somewhat different. I should set out all the material provisions, especially the new Article 6 which replaces the old. Recital 9 records:-
"Whereas the Member States in order to ensure compliance with the basic standards, are required to submit certain practices involving a hazard from ionising radiation to a system of reporting and prior authorisation or to prohibit certain practices."
Article 1 defines Practice to mean:-
"a human activity that can increase the exposure of individuals to radiation from an artificial source, or from a natural radiation source where natural radionuclides are processed for their radioactive, fissile or fertile properties, except in the case of an emergency exposure."
Article 2.1 applies the Directive to inter alia “all practices which involve a risk from ionising radiation emanating from an artificial source ..., namely ... the ... processing ... of radioactive substances”. Article 4 deals with authorisation of practices including the operation and decommissioning of any facility of the nuclear fuel cycle. Title IV, under which come Articles 6 to 14, is headed:-
"JUSTIFICATION, OPTIMIZATION AND DOSE LIMITATION FOR PRACTICES."
Article 6 comes under a sub-heading:-
"GENERAL PRINCIPLES."
6.1 reads:-
"Member States shall ensure that all new classes or types of practice resulting in exposures to ionising radiation are justified in advance of being first adopted or first approved by their economic, social or other benefits in relation to the health detriment they may cause."
Article 6.2 allows a review of classes or types of practice “whenever new and important evidence about their efficacy or consequences is acquired”. Article 6.3 requires in addition that Member States ensure that all exposures are kept as low as possible (optimisation) and that the sum of the doses from all relevant practices shall not exceed the dose limits for those exposed to them. Article 14 reads:-
"Each Member State shall take reasonable steps to ensure that the contribution to the exposure of the population as a whole from practices is kept as low as reasonably achievable, economic and social factors being taken into account.
The total of all such contributions shall be regularly assessed."
It will be noted that Article 14, unlike the old Article 13 which it replaces, does not refer back to Article 6. Finally, Article 54 reads:-
"This Directive establishes the basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionising radiation with the aim of their uniform implementation by Member States."
The references in particular in Article 6.1 to ‘classes and types of practice’ and to the requirement that they be justified in advance of being first adopted or first approved’ lead to the contention that Article 6.1 is concerned with a generic approach to a type of activity and not with a site specific justification. Lord Lester, while not necessarily accepting that that is indeed the true construction of Article 6.1, has not sought to argue the point and is content to assume that it is. In the circumstances, I shall do the same.
I must finally refer to the salient parts of the decision of the Secretaries of State which is the subject of this claim. After dealing with the history of the application and the consultation process, it considers environmental and safety and security issues. Broadly speaking, it concludes that the EA was correct to form the view that the detriments would be very small. Mr. Pannick has described them as minuscule. In addition, there are safety and security advantages in re-using separated plutonium since it avoids the risks inherent in its transportation and processing elsewhere. All this is, of course, highly material in assisting the Secretaries of State to form an overall view whether the benefits of the type of practice in question outweigh any detriment to health. I have used the word benefits without qualification since ‘economic, social or other’ indicates that a wide range of considerations can properly be brought into account. The decision then goes on to consider economic issues. I should cite in full Paragraphs 71 to 77 and 86 and 87:-
"71. In applying the generic test for justification explained above, the Secretaries of State consider that an important factor to be taken into account is the economic benefits to be derived from the particular class or type of practice in question: here, the manufacture of MOX fuel.
72. It is clear that there is a significant demand from a range of countries for the manufacture of MOX fuel. MOX manufacturing plants already operate in France and Belgium, and the construction of another in Japan is planned. It appears likely that a MOX manufacturing capacity will be an important adjunct for nuclear fuel processors, such as BNFL, who seek to maintain their market position.
73. The Secretaries of State consider that, as a result, the manufacture of MOX fuel carries economic benefits which are capable of justifying it as a class or type of practice. Overall, the Secretaries of State consider that, given the ability to carry on that type of practice with very minor radiological detriments, the economic benefits are sufficient to justify it.
74. This general conclusion of the Secretaries of State has in part been informed by, and has been tested against, their consideration of the specific prospects of the SMP. They have consulted on BNFL’s business case for the SMP and are satisfied that the operation of the SMP will provide significant economic benefits. This supports their conclusion that the class or type of practice comprising the manufacture of MOX fuel is justified on application of the generic test by the economic benefits it makes it possible to achieve.
75. The main conclusion reached by ADL in its report to the Secretaries of State is that the operation of the SMP would be in the national economic interest, with a net present value (“NPV”) of £216M, when compared to the cost of the SMP not only ahead. The consultants calculated the NPV of operating the SMP at £159M, on a conservative basis, as compared to a loss of £58M if the plant did not operate.
76. ADL’s assessment took account of the possibility of various adverse events, such as delays to the delivery schedule, loss of some anticipated orders and more extreme events, including a major interruption to the SMP’s operations or an early shut down. For reasons of prudence, ADL did not consider unexpected but possible events which could benefit the SMP, such as an interruption to competitors’ operations.
77. ADL also left out of account in its calculation the benefits which would flow from operation of the SMP from BNFL’s other businesses, including nuclear fuel reprocessing. The Secretaries of State consider that these additional economic benefits, although difficult to quantify with any precision, are also likely to be substantial.
86. In assessing the economic issues and the NPV of operating the SMP, the Secretaries of State consider that it is appropriate and consistent with the justification test in the 1996 Directive to focus on the present circumstances, both on the costs of operating the SMP in the future and on the present assessments of available commercial opportunities. The Secretaries of State do not consider it appropriate to deduct BFNL’s sunk costs from the consultants’ calculation of the NPV of the SMP - which costs were themselves incurred at a time when a different assessment of commercial opportunities may have been made.
87. Further, the Secretaries of State consider that the class or type of practice consisting of the manufacture of MOX fuel will support potentially significant levels of employment. This is illustrated by the assessment in the ADL report that the operation of the SMP is likely to support up to 480 jobs in total in West Cumbria."
Lord Lester’s basic submission is beguilingly simple. It is common ground that the manufacture of MOX fuel is a new type of practice and so covered by Article 6.1. In deciding what are the economic benefits of the new type of practice, it is necessary to include the costs of enabling it to come into being. It cannot be carried out in the abstract. It cannot be right that the timing of the application for authorisation will determine that cost, it being apparently accepted that any cost to be incurred after the application is made is to be included. This would mean that the applicant could improve his chances of establishing economic benefit by waiting until enough has been expended, which will be ‘sunk’, so that little remains to affect the likely economic benefits resulting from the type of practice. It is not, I should make clear, suggested that BNFL have acted in any way wrongly or in bad faith in this case: this argument is used to emphasise the potentially arbitrary element in the exercise if timing is to determine the amount of cost. Furthermore, the Directive presupposes a uniform implementation in Member States (Article 54) and that is only to be achieved if there is a uniform approach adopted to assessing economic benefit. It is not in the circumstances of radiological protection a case of choosing next steps on what may be described as a corporate finance basis but of acting as an environmental regulator applying an objective test of justification by reference to all its cost.
Lord Lester seeks to support this submission by reference to government policy as shown in the Review of Radioactive Waste of July 1995. Paragraphs 60 and 62 of this read as follows:-
"60. In the preliminary conclusions of the review, it was proposed that applicants might be encouraged to apply for an authorisation under RSA 93 at an early stage in a project so that justification could be considered fully, before major capital investment had taken place. If an authorisation was given, the developer could proceed with construction of the plant confident that its subsequent operation would be allowed, providing that extant safety and environmental standards were met. At the same time, justification would have been considered without the need to take account of any substantial sunk costs. Early application for authorisation would also strengthen application of the ALARA principle by ensuring that waste disposal considerations were addressed at the design stage of the plant in a transparent manner. Until now, this has been achieved through contacts between the regulators under the memoranda of understanding between them. Staged procedures are already used by N11 for licensing nuclear sites.
62. In the light of these responses, the Government proposes a flexible approach. For major projects, it is expected that developers will make early applications for disposal authorisations. This would be at about the same time that they seek full planning permission for the project, although it would be determined separately. The regulators would then be able t decide on authorisations before major commitments of money and effort had been made. If the regulators are content, the authorisations could be granted containing conditions which if met at specified stages should lead to approval to start operations in due course when the plant is built and commissioned. For some projects - e.g. a power station of the same design as one already built - the design may be well developed at the outset and, if the site has no unusual features, the authorisation may need no further amendment. In other cases, the design may evolve as the project progresses and decisions will be needed about whether to revise or vary the authorisation. If significant changes are made to the conditions in the authorisation, further public consultations will be undertaken and, in any event, application documents, authorisations and all relevant correspondence will be placed on the public record. Legislation is not necessary in order to introduce a system of early authorisations under RSA 93. The procedure will be available under existing legislation for any applicants who choose this route. They will not be required to do so, but the greater certainty it could provide will give applicants an incentive to apply early in the process in appropriate cases. Further guidance will be given in the revised and updated version of Radioactive Substances Act 1960, a guide to the administration of the Act."
This expects that an application will be made at the earliest possible stage, in which case the capital costs of construction will normally be included in the assessment of economic benefit. This is supported by the EA’s concerns which I have already set out in Paragraph 5 above. Finally, he refers to the comments in the Directive issued by the Commission. These are not, of course in any way binding: they are designed to assist those who have to apply the Directive. Under Article 6, this is said:-
"Determination of the justification of any new classes or types of practice is the duty of the Member State. It should take place before the introduction of the class or type of practice and as early as possible to reduce the influence of the already incurred costs in balancing economic and social factors against health detriment."
There has been much debate before me as to the meaning of that second sentence. I think I must assume that the Commission is aware of and recognises that Member States will apply a fundamental principle of economics that sunk costs will be left out of account when assessing the economic benefits of a proposed course of action. It is difficult to see how otherwise the already incurred costs can influence the balancing exercise. If Lord Lester’s construction is correct, they cannot, since timing will be irrelevant. Equally, if Mr. Pannick’s primary submission that such capital costs should always be left out of account is correct, they cannot. It is only if the approach adopted by the Secretaries of State in their decision is correct that there can be an influence. However, the sentence is far from clear and it would be dangerous to construe the Article by reference to the somewhat obscure views of the commission’s commentator.
Mr. Sales puts in the forefront of his argument that the Article sets out what he describes as an extremely open-textured test. By this he means that, subject to irrationality, the Member States can decide for themselves which benefits should be brought into account and what weight should be attached to them. He makes the point that disregard of such costs is a proper way of approaching the resolution of economic benefit and so it cannot be said to be irrational to adopt the course taken by the Secretaries of State. Had the Secretaries of State decided that all the costs should be taken into account, that would equally have been open to them because it was not irrational to do so. It was properly within their discretion.
It is in my judgment important to identify clearly the process being carried out. It is the determination of economic benefit based on the cost against the potential revenues (albeit those are assessed, as the ADL report makes clear (and see Paragraphs 76 and 77 of the Secretaries of State’s decision)). ADL calculated the net present value in accordance with the Treasury Green Book guidelines, that is to say, guidelines issued by H.M. Treasury for assessing the value of “any activity - whether a project, programme or policy - which entails spending or saving money or otherwise changing the ways in which resources are used”. The types of activity with which they are concerned include policy and capital developments. But in carrying out this exercise it was necessary to apply a proper methodology and one which accorded with any express or implied requirements of the governing law, in this case, the Directive. I do not think in this part of the exercise an exercise of discretion to what should be taken into account is involved. Either sunk costs are to be ignored in accordance with standard economic practice and the Treasury Guidelines or they are to be included or excluded because the Directive on its true construction requires such inclusion or exclusion. The Secretaries of State cannot in my view choose whether or not to include them. They can, however, once the net positive value (NPV) is determined, decide that other factors which have not been taken into account, such as are referred to in Paragraph 77, can tip the balance in favour of SMP. In addition, they must put social and other benefits in respect of which they have a wide discretion into the balance. All this means, as Lord Lester accepted, that even if he were right and sunk costs should have been included, it would not automatically follow that SMP would not be justified. Apart from anything else, the figure of £470 million (which would, it seems, have to be set against the £216 million NPV) cannot be taken at face value. Included in the cost of construction will be benefits in the form of employment and other benefits to the local and perhaps national economy. A far more detailed exercise will be needed to assess the true disbenefit.
All this means that I do not accept Mr. Sales’ argument based on the wide discretion of the Secretaries of State. However, as Mr. Pannick emphasises, in Paragraphs 72, 73 and 74 of the decision, the Secretaries of State have identified various matters which led them to state in the last sentence of Paragraph 74 that the type of practice comprising the manufacture of MOX fuel is justified by the economic benefits it makes it possible to achieve. The NPV of £216 million is then prayed in aid to support that conclusion. Mr. Pannick sought to argue from this that sunk costs were an irrelevancy since they did not affect the reasoning at Paragraph 74. I do not think that that follows. The Secretaries of State have used the NPV to support their conclusion and so it has clearly influenced that decision. Indeed, Mr. Pannick and Mr. Sales both recognise that if the sunk costs were not properly excluded from the exercise of assessing the NPV, the decision cannot stand since it will have been affected by a consideration which was wrongly taken into account.
I was initially impressed and even beguiled by Lord Lester’s argument. It seems to me that the assessment of economic benefit should not be influenced by the time at which the application or the assessment is made. That would be likely to lead to uncertainty and inconsistency. Naturally, different States may reach different conclusions on the types of practice in question. Indeed, we know that the manufacture of MOX fuel is carried on in Belgium and France. It was carried on in Germany but no longer is. But they should all so far as possible be approaching the question of justification in the same way. However, the answer in my judgment is not that put forward by the claimants but rather that the cost included in setting up a particular plant to enable the type of practice to be put into effect is not to be set against economic benefits. While I have not had to reach a final conclusion whether the generic approach is right, I believe that it probably is and in any event the adjective ‘first’ must be given its proper weight. Justification is clearly not site specific. Once the practice of manufacturing MOX fuel is accepted to be justified, the exercise will not have to be repeated (absent any new and important evidence which may engage Article 6.2) if manufacture of MOX fuel at any other site is proposed. It may be said that that is unrealistic since manufacture by BNFL at Sellafield is the only feasible option now and in the foreseeable future. That is not the point since I am here concerned with the correct meaning of and approach to Article 6.1 and that cannot depend on the factual position in an individual Member State.
The capital costs involved in enabling the activity to go ahead will vary from site to site. Existing facilities may well affect substantially the amount to be spent. Furthermore, there will be considerable difficulty in assessing any net disbenefit in any given case. What is needed is a justification of the type of practice. It may be too expensive and not cost effective or there may be no satisfactory market for the end product. I accept that it will be necessary to identify which costs can truly be said to be included in the practice itself. Clearly capital costs involved in constructing the plant will not, nor should any costs peculiar to the site, such as those incurred because of a data falsification incident, save insofar as that incident affected the wholly future economic benefits of the type of practice in the United Kingdom generally. It follows that on any view here there was a positive NPV and the decision would have been that justification was established.
I have, however, to consider the position on the basis that that is wrong. In the alternative, both Mr. Sales and Mr. Pannick submit that it cannot be wrong in law for the Secretaries of State to adopt a proper, indeed a classic economic approach to sunk costs. There is nothing in Article 6.1 which in terms supports Lord Lester’s construction and nothing is said in Article 6.1 itself or in any domestic legislation about when an application should be made, other then that it must obviously be in advance of the adoption or approval of the type of practice in question. It is the absence of any such requirement that has led the EA to be concerned and may underline the Commission’s comments. Since bad faith is not suggested, the time at which the application was made cannot be held against BNFL and so the usual principle ought to be applied. Accordingly, no error of law has been established in the approach taken by the Secretaries of State. That submission is in my view correct.
I should say that arguments based on suggestions that the claimants had themselves seemed to take a different view to that they are now taking during the consultation exercise I find to be wholly unpersuasive. What matters is not what anyone may have believed at any particular time but what is the true construction of and the legal effect of Article 6.1. Similarly, arguments put forward by the claimants based on an alleged different approach to the justification of THORP are equally unpersuasive. The ministers did not regard justification as necessary in terms of the Directive when considering THORP. They succeeded in fending off the challenge because Potts J was persuaded that what they had done was in fact sufficient to comply with the tests which the Directive required. In any event, the Directive applicable then was in different terms and was, as Potts J found, site specific.
When the claim was formulated, two further grounds for judicial review were raised. Neither has been pursued by Lord Lester. That decision was undoubtedly correct and I need not consider them.
In the circumstances and for the reasons given, this application fails and must be dismissed.
