Solar companies draft in Asserson to bring claim against DECC

A group of UK solar companies have turned to Asserson Law Offices to launch legal action against the UK’s Department for Energy and Climate Change’s (DECC) decision to end grandfathering for solar projects under the Renewables Obligation.

The claim centres around the removal of grandfathering for solar projects under 5 MW that were not accredited under the RO scheme as of July 22. DECC confirmed this plan today in its consultation response.

Grandfathering guarantees the level of subsidy that will be provided throughout the lifetime of a solar farm.

The unnamed group of companies’ claim will now go ahead after DECC confirmed the change last week.

Asserson successfully led a case brought by HomeSun, Friends of the Earth and Solarcentury against DECC in 2012, when the Court of Appeal confirmed that DECC had acted unlawfully in attempting to change the solar feed-in tariff retrospectively.

In its legal challenge to DECC, Asserson said the legal basis for its latest case is “very similar, if not identical” to that very case.

The plaintiffs argue that the UK government has given “clear and unambiguous assurances that it was committed to the principle of grandfathering”. This was most notable in its response to the consultation for the removal of the RO for systems above 5 MW last year.

The claimants argue that grandfathering has received “clear statutory effect” under the Renewables Obligation Order 2009.

Crucially, Asserson said that the Secretary of State cannot amend this guarantee “unless a draft of the instrument containing it has been laid before and approved by a resolution of each House of Parliament”.

The policy shift confirmed by DECC today is beyond its legal power or authority, lawyers from Asserson working on the case have informed DECC.

Its provision of a grace period for some projects that are accredited and not to others does not detract from this conclusion.

DECC said today that exceptions will apply to project that have made “significant financial commitments”, including grid connection offers and acceptances, land ownership agreements and planning applications.

Asserson’s clients say the original proposal of the policy change announced in July has had “a significant adverse impact” on their businesses and their projects may now be “economically unviable” to continue pursuing.

DECC’s decision to remove grandfathering was slammed by the Solar Trade Association today, which said “it makes no sense for solar”.

“It’s the thin end of the wedge,” said CEO Paul Barwell. “If you invest £1 million of capital into a solar project today, in 20 years’ time you have still invested £1 million – it is a sunk cost. You cannot have the level of support changing over the lifetime of a project as investors won’t take the risk.”