Environmental Law is a fast and evolving area of legal expertise – with Wright, Johnston & Mackenzie having both the knowledge and experience in the renewables sector to assist businesses and developers in their net zero goals. By Anthony Harrington
AS with any large project, navigating the process of obtaining finance, getting consent for and building an onshore wind farm, is filled with legal minefields and elephant traps abound for the unwary.
There are a lot of moving parts to these projects, and every new wind farm development poses its own challenges. It will also have its own set of local communities that need to be consulted and involved if the project is going to succeed.
The key point to emphasise though, says Andy McFarlane, Head of Renewables at the law firm, Wright, Johnston & Mackenzie, is that each project that makes it through the consenting process has a vital contribution to make.
By contributing sustainably to Scotland’s energy needs, these projects help to get the whole country that much closer to achieving the Scottish Government’s ambitious Net Zero goals.
McFarlane’s involvement in the renewables space with WJM goes back at least 20 years. “As a law firm, we are not ourselves the inspirational entrepreneurs driving the energy transition. But we have worked for a long time now in partnership with a very inspirational industry, helping to bring renewables projects to fruition,” he comments.
WJM has been involved in the sector since the 1990s, both with early onshore wind projects and with small- and large-scale hydroelectric schemes and more recently in the rise of battery storage projects.
In some ways, renewables projects are similar to other ‘build’ projects that require planning permission. However, they also have a number of unique features that do not have real parallels in other sectors.
Developers in other sectors will be largely focused on maximising their return for their development on the land in front of them.
They may, for example, be expected to have a social benefit side to the project to succeed in the planning process. They will have to involve the local community, perhaps promising to use local labour and/or including local amenities such as a community centre or shopping centres in the project.
By way of contrast, the renewables sector has always provided “added value” in the form of community and environmental benefits beyond the footprint of the project itself. One of the central considerations for an onshore wind project will be to work out with the local community how they and the owner of the land on which the wind farm is to be situated, will benefit financially from the project.
“The wind farm project team begin meeting with the local community right from the inception of the project, well before anything goes for planning approval,” McFarlane comments.
The liaison with the community is likely to be through the whole development and construction phase of the project. The goal in the early stages will be to facilitate the local community’s efforts to define exactly what benefits they expect the project to deliver for them.
Is there the possibility, for example, of the community taking some sort of financial stake in the project and reaping a long-term financial return from it?
McFarlane points out that the old models, which held sway a decade or so ago, where local councils would have a substantial say over how community benefit contribution would be spent are now changing.
They are giving way too much more community centred models with developers working with local community bodies to determine how funds will be spent for the benefit of the community.
Clearly, one of the benefits of getting a strong buy-in from local communities at an early stage of a new project is that it can help to chart a smoother path through the consent process.
All other things being equal, planning officials tend to favour projects that have solid support from the local community. McFarlane notes that much has changed since the early days of onshore wind development when politicians and others sought to garner support by vociferously opposing every new wind farm development.
He points out that the old ‘blight on the landscape’ argument, which used to be levelled at onshore wind projects, is fading into history and justifiably so.
“People are now much more aware of the dangers of excessive climate change and hence of the need to support the Scottish Government’s Net Zero policy and maximise the rich renewables resource which Scotland has,” he comments.
This is helping to bring about a sea change in the way planning officials approach the consent process. Plus, project developers now have a richer understanding of what is required from the visual and environmental impact studies that they have to produce in support of their projects.
“What you find today is that wind farms are much more carefully situated so that they do not impact sensitive sites or areas of outstanding natural beauty. The onshore wind industry received a lot of bad press in the early days, but the majority of the public now know that these projects really do help us to transition away from fossil fuels to heat and power our homes,” he comments.
The plain fact is that onshore wind farms are now a vital part of the UK and Scotland’s energy mix. The journey to Net Zero is rooted in the ability to learn and continuously develop best industry practices to deliver the results we need and the renewables industry is at the forefront of this drive.
“Renewables projects contribute in a very benevolent way and have a very low carbon impact. In the early days, wind farms tended to be regarded as just another land project but we are constantly seeing our clients developing increasingly efficient projects and ground-breaking technology in order to promote green energy as central to a green economy,” he points out.
Grid connectivity is always a big issue with these projects.
It frequently poses some difficult challenges, particularly where a project is situated a good distance from both the grid and from potential end-users. Where a prospective wind farm site is located close to large energy users, the developer will want to try to secure a long term energy contract with one or more of those users.
“What we are trying to do in Scotland is to show that you can develop a wind farm that works commercially for the developer and the investors and that is nevertheless a win-win for the local community and for the country as a whole,” he concludes.
OFFSETTING CARBON WITH NEW WOODLAND IS GOOD FOR ECONOMIC GROWTH
WHEN someone says: “This is a low carbon solution”, it is tempting to take that at face value. That is no longer good enough when governments around the world are working, somewhat slowly perhaps, on creating a market value for carbon units.
As the carbon market opens up, the question around a ‘low carbon’ project turns to trying to puzzle out how much carbon, exactly, the project either saves from being released into the world or sequesters, locking the carbon up in a safe form for decades.
The classic instance of a project that sequesters carbon is forestry. Trees sequester carbon, and it is possible to work out scientifically what tonnage of carbon, per hectare, a Sitka spruce forest or a broadleaf forest will sequester.
In 2012 the UK government set up a small team in the Forestry Commission to administer the Woodland Carbon Code, the UK’s voluntary carbon standard for woodland creation projects scheme. It is underpinned by robust science that predicts and monitors carbon sequestration.
It also provides independent validation and verification of projects. So, carbon buyers can be reassured that they are investing in a responsible scheme that genuinely does offset the amount of carbon the company is claiming to offset.
At present, no one worries overmuch about exactly how much carbon an onshore wind farm is saving. The key point is that it is producing electricity without burning fossil fuels of any sort.
However, as Andy McFarlane, Head of Renewables at WJM explains, there is always going to be some residual carbon outputs in the creation of any wind turbine project. There are carbon outputs associated with the manufacture of wind turbines, blades and towers and the construction works on site. These can be offset by the project either buying carbon offset units from companies who own forests and have units to sell, or from the developer planting a sufficient number of trees if they have land available to them. The more pertinent point though is that many onshore wind developers have already been doing much of the work envisaged by the carbon offset market as a matter of course on their projects. These latest changes offer an opportunity to renewables developers to formalise some of that effort.
“The market for carbon units is emerging slowly, both in Scotland and internationally. It is going to take time but this market will become an integral part of onshore wind farm planning as things develop,” he points out.
The international side of efforts to get carbon markets going received a boost in late September this year with the formation of a new UN-sponsored governance body tasked with scaling up voluntary carbon markets. Mark Carney, the former Governor of the Bank of England, is a key figure in this process.
In the words of the task force involved, “The announcement marks a major milestone in the Taskforce’s mission to bring greater quality and integrity to trading on VCMs. This will reduce CO2 emissions, preserve natural habitats, mobilize much-needed capital to develop sustainable technology and ultimately accelerate the transition to net-zero.”
This article is brought to you in association with Wright, Johnston & Mackenzie as part of The Herald’s 100 Days of Hope campaign.