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The Queen on the application of Friends of the Earth Ltd & Anr (Appellants) – and – Secretary of State for Environment, Food and Rural Affairs & Ors (Respondents)

Country/Territory
United Kingdom
Type of court
Others
Date
Dec 7, 2001
Source
UNEP, InforMEA
Court name
Court of Appeal
Seat of court
London
Judge
Waller
Dyson
Reference number
2001 EWCA Civ 1847
Language
English
Subject
Waste & hazardous substances
Keyword
Economy and environment Nuclear energy Hazardous substances
Abstract
Nuclear reactors can operate efficiently using a fuel called mixed oxide fuel (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 2001, five years after British Nuclear Fuels plc (BNFL) first applied for an authorization, the respondent Secretaries of State decided that the practice of manufacturing MOX, which BNFL proposed to undertake at their Sellafield Mox Plant, was justified within the meaning of Article 6.1 of Directive 96/29/Euratom. Article 6.1 provided: "Member States shall ensure that all new classes or types of practice resulting in exposure to ionizing 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." The appellants challenged that decision, contending that in evaluating the economic benefits, which the respondents concluded were sufficient to justify the "very minor radiological detriments" which would result from the practice, they failed to take into account the capital costs inherent in the practice. The appellants’ essential argument was that in deciding, what were the economic benefits of the new type of practice, it was necessary to include the costs of enabling it to come into being. It could not be right that the timing of the application for authorization would determine that cost. This would mean that the applicant could improve his chances of establishing economic benefit by waiting until enough had been expended, which would be ’sunk’, so that little remained to affect the likely economic benefits resulting from the type of practice. The Secretaries of State’s main argument was that Article 6 afforded them the widest of discretions as to what benefits should be taken into account; accordingly, it was open to them to take account of the capital costs of the MOX project or not as they saw fit. The court was of the view that that the capital costs inherent in a new type of practice (mainly the costs of constructing the necessary plant) were indeed a cost of the practice and relevant, therefore, when evaluating the overall economic benefit (or detriment) likely to result from adopting the practice. What, however, if the capital costs had already been expended? It concluded that the Secretaries of State were not bound to take into account costs which had already been incurred in constructing the MOX plant, which plainly could not be recovered. The appeal was dismissed.
Full text
Friends_of_Earth_v_Sec_of_State.htm