Supreme Court denies DECC appeal on Feed-in Tariffs

The Supreme Court has today rejected an appeal bid by the Department of Energy and Climate Change over cuts to the Feed-in Tariff scheme for solar PV.

A panel of Supreme Justices refused the Government leave to appeal an earlier High Court ruling that the cuts were unlawful.

The decision leaves Energy Ministers out of legal options and they must now accept they acted unlawfully by proposing to bring in cuts before the consultation period on changes was completed.

It means solar PV installations registered after the original December 12, 2011, deadline and before the March 3, 2012, contingency date now qualify for the original 43.3p kw/h subsidy rate.

But more importantly it provides certainty to the renewable energy market that the Government cannot plan to make retrospective cuts to future schemes.

Today’s decision marks an end to nearly five months of bitter wrangling but opens the way for solar companies and installers to now sue the Government for loss of business.

The Supreme Court ruling states: “Permission to appeal be refused because the application does not raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at this time, bearing in mind that the case has already been the subject of judicial decision and reviewed on appeal and because paragraph 16 of the Court of Appeal’s judgment disposes of the proposed argument based on the subject of the challenge being only a proposal.”

The Supreme Court also ordered DECC to pay the costs of the other parties.

The original legal challenge was made by Solarcentury, Friends of the Earth and HomeSun, and the High Court ruled on 21 December that the Government proposal to cut payments for any solar scheme completed after 12 December 2011 – 11 days before an official consultation into the proposal had closed – was unlawful.

Jeremy Leggett, Chairman, Solarcentury said: “The Supreme Court has today confirmed that the Government simply has no grounds to appeal the decision that its handling of solar Feed-in tariffs was illegal.

“This final step in the legal process has wasted much needed time and money and now we, the renewables industry, simply want to get on with creating our clean energy future. Renewables can only play the pivotal role necessary to deliver a new green economy if we have a stable market and investor confidence backed by lawful, predictable and carefully considered policy.

“I hope the Government is now clear that it will be held to account if they try to act illegally and push through unlawful policy changes. We would much prefer not to have taken this path but Ministers gave us no choice. Our hope now is that we can work together again to restore the thriving jobs-rich solar sector that has been so badly undermined by Government actions.”

Alan John, head of renewable energy at law firm Osborne Clarke, said following the decision published this lunchtime: “Many in the industry will welcome the closure that today’s news brings. For the first time in four months, the UK solar industry can look forward and plan for the future without this underlying uncertainty.

“In general, I think that most in the industry will want to put the last few damaging months behind them and get on with building their businesses.

“The relationship between the industry and DECC is crucial and both sides now need to focus on making that as constructive as possible. In particular, the industry needs to continue to lobby hard for non-tariff related support from the Government to promote the solar industry and embed the technology as a mainstream part of the UK’s energy mix.”

And David Hunt of Eco Environment added: “Our hope is that this Supreme Court decision to uphold the previous court judgements will make it clear to Government that they must in future abide by due process and the law.

“Memories are short but legal precedent is long lived. We cannot have another situation like the FiT chaos. The industry needs some certainty, if the Government had won we would never have had that.”

Solar Trade Association Chief Executive Paul Barwell commented: “This marks the end of this particular turbulent chapter for the UK solar sector. We welcome the certainty for those who invested and installed since 12th December. However, the extra money DECC will now have to commit leaves us with serious concerns about the remaining FIT budget, which remains constrained under the Levy Control Framework.

”It is vital that the solar industry receives sufficient support, or we risk losing good quality firms over the next year. That will be against a backdrop of new and substantial public subsidies to the oil and gas sector.”