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Draft Overarching National Policy Statement for Energy (EN–1)

My Lords, from European affairs, we return to planning matters in the United Kingdom. As a preface to my Motion, I completely agree with my noble friend Lord Jenkin of Roding’s view that the phrase, "““there is a significant need for new major energy infrastructure””," in the Government’s conclusion on need in EN-1 gravely underestimates the critical nature of the situation that we face. In moving my Motion, I return to a subject that I first raised in an energy debate in this House on 27 October 2005, when I spoke of my anxiety about the way in which the planning applications for two new liquefied natural gas terminals in Milford Haven had been handled. I concluded that speech by saying: "““I pray that no serious accident involving LNG will occur, but it seems clear that the present arrangements, fractured between shore and ship, and with marine controls that are not sufficiently independent, open or subject to second-party review, are seriously flawed. Any major accident would not only have a tragic impact on those directly affected, but would have devastating consequences for LNG operators and British energy policy. Before applications are made for terminals at other places, we need sounder planning and safety management arrangements put in place. Port authorities should be statutory consultees in the planning process. A port authority dealing with safety issues should not be able to plead exemption from the Freedom of Information Act or to withhold information about safety issues on grounds of commercial confidentiality. I question whether a voluntary port safety code is an adequate defence; and surely if a commercial organisation is the policing authority, there should be a process that enables a truly independent body to review its actions and intervene if serious faults are revealed. The case for a review before something goes badly wrong is surely compelling””.—[Official Report, 27/10/05; cols. 1338-39.]" On 11 March this year in the Grand Committee debate on the draft national policy statements, I repeated many of those arguments and expressed astonishment that the solitary paragraph about safety issues in policy statement EN-4 refers to the Control of Major Accident Hazards—COMAH—regulations and the roles of HSE and the Environment Agency, which apply only to the land-based facilities. There is no mention of maritime risks that arise from LNG shipping operations within a port, believed to be significant by both HSE and the Society of International Gas Tanker and Terminal Operators. In the Grand Committee debate, I quoted from the recommendations issued by SIGTTO. The operators’ exemplary record has been due to strict adherence to those recommendations. Safety is by far the most important factor on which decisions about the siting and operational rules for LNG marine facilities should be based. In the draft overarching national policy statement for energy, EN-1, there are just two paragraphs relevant to LNG. Paragraph 4.11 on page 48 states that, "““the IPC should consult with the Health and Safety Executive (HSE) on matters related to safety. HSE is responsible for enforcing a range of health and safety legislation applying to the construction, operation and decommissioning of energy infrastructure. Compliance with this legislation is not, therefore, likely to be relevant in the determination of development consent by the IPC””." The second paragraph states that some energy infrastructure will be subject to the COMAH regulations enforced by HSE and the Environment Agency. Given more time, I would challenge the dubious assumption that compliance with these aspects of health and safety legislation is not likely to be relevant in the determination of development consent. The COMAH regulations and the work of HSE and the Environment Agency do not cover the marine port risks. The noble Lord, Lord Hunt of Kings Heath, like his noble friend the noble Lord, Lord Sainsbury of Turville, in the 2005 debate, confessed to ignorance of what he said was rather a new issue to him. I do not blame him for that. He referred me to page 13 of the appraisal of sustainability document, which—it is my turn to make a confession—was new to me. It said that, "““the safety of shipping and navigation is an important issue for all shipping, especially LNG tanker shipments. The existing legal framework and its enforcement will ensure that LNG tanker shipments are safely regulated””." I wish that was true but I fear it is not. The noble Lord, Lord Hunt, went on to quote from the appraisal document’s description of the arrangements covering operations at sea and then to the single sentence about port operations, that, "““there are special rules regarding port operations for LNG vessels with detailed procedures set out port by port””." I asked the Minister’s private office to send me the document and was grateful to the official who told me that I would find the page numbered 13, rather curiously, on page 311 of the 360-page appraisal. It is also on page XIX of the introduction. The document describes itself as a non-technical summary of the appraisal of sustainability, or AoS, report. I hope that means that the actual report is more impressive than the summary, although the thought that it will be much more than 360 pages is pretty daunting. The appraisal is primarily directed at environmental and sustainability targets and not at safety issues. One important point is clearly made: the appraisal will not guide the decisions of the IPC. Page III says that, "““for this infrastructure, EN-1 in conjunction with the gas supply infrastructure and pipelines NPS (EN-4) will be the primary basis for IPC decision making””." That being so, safety issues must be adequately dealt with in EN-4. What happened in Milford Haven provides ample evidence that the existing legal framework is not satisfactory and is incapable of creating the level of public confidence that the Government should be seeking to achieve. It would be shocking if Parliament approved a planning system that encouraged the IPC in England, or the Welsh and Scottish authorities, to take decisions on the basis that the existing legal framework was adequate in its present form. The draft EN-4 must now be amended to include a proper statement of the regime that applies to LNG vessels operating in British ports, and, I hope, of a much-improved regime. As a start, the IPC should be required to consider—as is the case in some other countries—whether these facilities should ever be placed in close proximity to large centres of population. There needs to be guidance about the desirability of using offshore systems which allow regasification and delivery at sea. The Energy Act 2008 established licensing arrangements for offshore facilities, yet there is no reference to them in EN-1. In EN-4, there is a statement that the IPC should note that the Secretary of State for Energy and Climate Change will be responsible for licensing offshore facilities. Paragraph 2.7.5 states that, "““There are some important siting considerations which will affect the choice of LNG import and storage facility sites””," but the following paragraph mentions only conventional land-based terminals. It then goes on to state: "““Safety considerations and proximity to dwellings, workplaces and other buildings … used by the public, will be relevant factors””," as well as pipeline access. If they are relevant factors, and I believe that they certainly are, in a document that sets out, "““the high level objectives, policy and regulatory framework””," there should surely be a section that indicates the potential importance of offshore terminals. Among the advantages that they may offer is safety, because they can be sited well away from centres of population. They can be positioned to avoid the need to construct lengthy pipelines. In the case of Milford Haven, the pipeline crosses the whole of Wales and part of England, and includes a section through a national park. It may be possible to use existing pipelines and offshore facilities that are no longer fully being used, as has happened in the Gulf of Mexico. Offshore terminals can be sited close to offshore salt caverns that can be used for storage, and to existing shore-based gas reception terminals. Offshore terminals are varied in type. The terminal operated by Adriatic LNG which is 17 kilometres offshore near Venice, uses an artificial island gravity-based structure with a large concrete box on the sea bed housing LNG storage tanks. Excelerate Energy's floating terminal, which opened in 2005, and is 116 miles off the south coast of Louisiana in the Gulf of Mexico, houses purpose-built regasification vessels. Just as the US gulf coast hosts an extensive natural gas pipeline network, so does the North Sea. My objective today is not to produce a final wording for inclusion in EN-4. To do that is not possible within the constraints of a Motion that has to be brief, and I am not a legal draftsman. My Motion stands on its own, but is primarily a prompt to the Government for further thought and action. It has been suggested to me that my Motion would be clearer if, before the reference to a quantitative risk assessment, it had some words added about the ““specific duties required of a statutory harbour authority regarding the assessment of maritime risks in relation to natural gas terminals and facilities””. I hope that that suggestion, given that it comes from an expert source, will be looked at by the department. As I said in my 2005 speech, new rules are needed for port authorities. The authorities vary in size; they may vary in relevant experience and competence; and they may, and probably will, have a strong financial interest in securing a terminal and the connected shipping movements for their port. We probably need a statutory rather than a voluntary code. There needs to be a process that ensures that an independent body reviews the actions of the port authority and can intervene if it judges that to be necessary. The Maritime and Coastguard Agency is an executive agency of the Department for Transport and already has the responsibility for ensuring the safety of LNG tankers at sea. At present, because the port marine safety code is voluntary, the MCA is not empowered to ensure compliance. The COMAH rules are enforced jointly in England by HSE and the Environment Agency. I see no good reason why the maritime risks within ports should not be handled in a similar way. It is important that there is no exemption for port authorities from the Freedom of Information Act, and that comprehensive information about risk assessments and measures taken to ensure operational safety are made available to the public. In Grand Committee, I quoted SIGTTO’s strong and wise words on that subject. The current arrangements should be reviewed urgently—all the more urgently because it is already four and a half years since I first asked for a review, and we now have to ensure that the safety provisions are suitable and adequate- for the underpinning of a completely new planning regime in which safety must be a paramount consideration.