The Severn tidal barrage project: A legal paradox?

Ginige, Tilak, Thornton, Ann and Ball, Frazer (2010) The Severn tidal barrage project: A legal paradox? Journal of Water Law, 21 (2).

Abstract

The proposed construction of a tidal barrage to generate electricity in the Severn Estuary between England and Wales could have provided an economically attractive and environmentally acceptable way of supplying up to 7% of England and Wales’s electricity consumption with low-cost, low-carbon electricity by 2020. This would have helped the UK government meet its obligation under its current Climate Change Policy and specifically those contained within the Renewable Energy Strategy (2009) of achieving 15% of energy supply from renewables by 2015. This Severn Estuary is a Special Area of Conservation (SAC) of 73,715.4 hectares in England and Wales and under Article 3 of the Habitats Directive. The development of a tidal barrage would have a huge impact upon 63,000 overwintering birds, destroy protected areas of wetland, and alter the estuarine ecosystem beyond repair. If projects like this were permitted, the UK would have to take compensatory measures to ensure the overall coherence of Natura 2000 was protected (Art. 6(3) & 6(4) of the EC Habitats Directive 92/43/EEC). It is questionable whether these compensatory measures will be effective, considering that we do not fully appreciate the role and function of ecosystem services provided by areas such as those around the River Severn? Perhaps more importantly would we prepared to gamble that their loss will be less damaging to us than the impact from future climate change? This then obliges us to question the weight given to conservation of species and habitats in an era of economic transformation and climate change obligation. Are we truly are at a point in our evolution where we will be making decisions of whether or not to sacrifice one good for another greater good (Alder, J. and Wilkinson, D., (1999). Although the scheme has been ‘shelved’, this was an economic rather than environmental decision. Therefore, given the overwhelming legal protection afforded to this area one of the issues that needs to be explored is how such a proposal was even considered? Have we approached the moment when Article 6(4) of the Habitats Directive ‘Imperative Reasons of Overriding Public Interest’ (IROP) will include combating climate change? If such projects are allowed to go ahead, does the prevention of climate change represent the ‘trump card’? Could this present an open door to developers wishing to capitalise upon opportunities presented by the government’s binding targets? Provided that it could be shown that the project or development contributes towards these targets, will all other environmental considerations be ignored, thus creating a paradoxical situation where the environment could be irrevocably changed in order to prevent the environment being irrevocably changed.

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