The Department of Energy and Climate Change has announced that it is seeking permission to appeal in the Supreme Court the Judicial Review ruling that the department’s attempts to make retrospective changes to the FiT were “legally flawed”.

Following the departure of Chris Huhne from DECC last week, it was unclear whether the newly-appointed Secretary of Energy and Climate Change, Ed Davey, would continue the Government’s appeal to the highest court in the country.
Commenting on DECC’s decision, Daniel Green, CEO of HomeSun, said: “We are hugely disappointed that Ed Davey is choosing to pursue an expensive lost cause rather than working with the industry to build a successful future for solar.

“Four Judges, one at Judicial Review and three in The Court of Appeal, ruled that the Government had acted unlawfully in setting a retrospective ‘reference’ date for the FITs cut. We wonder why Ed Davey wants to be a loser. He wasn’t the orchestrator of the Feed-in Tariff fiasco so why does he want it on his CV?

Green continued: “There is no need to appeal to the Supreme Court. DECC has already achieved its objective of a solar-slowdown. There has been a 90 percent reduction in solar PV installations and capacity over the last nine weeks compared to the nine weeks prior to December 12, 2011. Greg Barker’s claim that this “extra time” could cost £1.5bn has now been proved to be completely unfounded.

Commenting on DECC’s intention to appeal, Friends of the Earth's Executive Director Andy Atkins, expressed concerns about the implications of a successful appeal, stating: “A successful appeal will allow Ministers to slash renewable energy subsidies at any time – even for solar panels and wind turbines that have been operating for years.

“If Ministers want to protect families from soaring fuel bills they must get the nation off its fossil fuel hook – and restore business confidence in the Government's commitment to a clean energy future. This misguided appeal will only add to the uncertainty hovering over the renewable clean energy industry and the tens of thousands of people it employs.”

The Solar Trade Association has also expressed its dissapointment at DECC's decision that it claims will prolong, by several months, consumer uncertainty over FiT rates. STA Chairman Howard Johns commented: “We had hoped that DECC would put an end to the disruption being caused to the sector by this court case. A win in this case – whilst unlikely – would set a very bad precedent undermining the case for investment in renewables in the UK. The solar sector has been struggling to cope with the number of consultations around the feed in tariff this year and the uncertainty they have caused – surely now is the time to move on from this situation.”

The Minister for Energy and Climate Change, Greg Barker, defended DECC’s decision to pursue a Supreme Court appeal by maintaining that not appealing against the Court of Appeal’s judgement would lead to £1.5 billion additional lifetime costs to consumers.

In a written answer to Caroline Lucas, Green Party MP for Brighton Pavilion, Barker stated: “We respectfully disagree with the decision of the Court of Appeal, and intend to seek to appeal to the Supreme Court against the ruling. If we had chosen not to do so, there would have been much greater costs to consumers both due to installations between December 12, 2011 and March, 3, 2012 receiving higher tariffs (of 43.3p/kWh for installations up to 4 kW of installed capacity) for 25 years, and because of a likely increase in installation rate due to continued availability of the higher tariffs.”

Jeremy Leggett, Chairman of Solarcentury commented: “We have been expecting this but we hoped that Ed Davey would see sense and not take the appeal. If we are lucky this is just a cynical exercise to limit the market to March 3 and they will withdraw in a few weeks. If not, and they really are serious about a Supreme Court appeal, then the implications for the renewables industry are deeply worrying. Two weeks ago, Ministers reassured the industry that they wanted to see 4 million solar homes in the UK by 2020. This appeal completely undermines that claim.

“If the appeal is successful it will allow Government to change feed-in tariffs whenever it chooses, even for projects that are already installed and supposedly guaranteed the feed-in tariff. At a stroke, this would undermine investment in all UK renewables, not just PV, and show investors that the UK government simply cannot be trusted.”

Leggett remained bullish about DECC's chance of success, stating: “Fortunately their arguments are weak. They are the same ones unanimously rejected by the Court of Appeal so I wouldn’t give them much chance of success. Sadly, this appeal has the whiff of farce about it. First they try to woo private capital into infrastructure; then they mismanage it; now they go to the Supreme Court to argue for sovereign default to cover their tracks. I just hope the new Secretary of State actually understands what his lawyers are doing.”

Many in the solar industry will point to DECC using the full timeframe available to lodge an appeal as further evidence that DECC is deliberately delaying uncertainty over FiT rates to dampen market demand and help preserve an already stretched budget. Green added: “This has now become just a face-saving exercise for DECC paid for by the taxpayer.”