The Court will rule on whether to grant the Department of Energy and Climate Change (DECC) a hearing for its appeal against the High Court’s December ruling on UK solar feed-in tariffs. The Court of Appeal is expected to deliver its verdict at 10:30am on Wednesday, January 25.
Judges have been deliberating over the decision since January 13, having previously committed to delivering a verdict on or before February 9. Our sources strongly indicate that DECC will be granted an appeal.
A spokesperson for Friends of the Earth commented: “Our solicitors have been informed that a decision would be delivered next Wednesday (January 25), we have been told no further hearing will be heard.”
Last week DECC laid proposed FiT rates before Parliament, providing certainty over the lowest FiT rates until at least April 1, regardless of the result of the appeal. The outcome of the appeal now leaves the industry with two possible scenarios:
Scenario A
DECC is not granted an appeal, or is granted an appeal and then loses. If this were to happen then the FiT rate for all <4kWsystems installed on or after December 12 will return to 43.3p for the lifetime of the scheme. The lower FiT rates laid before Parliament would then come into effect on March 3.
Scenario B
DECC is granted an appeal and subsequently successfully overturns Mr Justice Mitting’s decision that cuts to the FiT were “legally flawed”. If this were to happen, then feed-in tariffs will remain as they are set out in the consultation document published on October 31. That means that <4kW systems installed on or after December 12 will receive 43.3p until April 1, 2012, dropping to 21p for the remaining lifetime of the scheme.
The Supreme Court
SPP understands that DECC will be able to challenge the Court of Appeal’s decision under the following circumstances.
If an appeal is granted and DECC subsequently loses its appeal, then it is entitled to challenge the ruling. If DECC is not granted leave to appeal, then it is unable to challenge the decision in the Supreme Court. A Supreme Court challenge would further prolong industry uncertainty over the entitlements are for FiT rate systems installed between December 12, 2011 and April 1, 2012.
The Climate Change Minister, Greg Barker, commented: “I know this is a difficult time for the sector and I want to do as much as I can to end the current uncertainty created by the legal challenge. We are still pressing ahead with our appeal and if successful, we retain the option of introducing a December reference date. In the circumstances we believe this gives the industry as much certainty as is possible. And it puts us in a better position to protect the budget for everyone involved.”
