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DECC appeal to Supreme Court extends uncertainty

Posted by Cathy Debenham on 24 February 2012 at 9:47 am

The confusion over feed-in tariffs continues, as the Government applied to the Supreme Court for leave to appeal against the High Court's decision on Tuesday.

A DECC (department of energy and climate change) spokesperson said: "We respectfully disagree with the Court of Appeal’s decision on feed-in tariffs and we have today lodged an application with the Supreme Court seeking that court’s permission to appeal. We are now awaiting a decision of the Supreme Court on permission.

"We want to see the available funding spread as far and wide as possible making FITs a scheme for the many not a scheme for the few, supporting sustainable jobs in solar and in a whole range of small scale renewables."

The government's decision to slash feed-in tariff rates before the end of the consultation process has been condemned by two parliamentary committees and four judges, yet the government still fights on.

This means that everyone with solar PV between installed between 12 December 2011 and 2 March 2012 lives in limbo. They won't know whether they will get the old 43.3p per kWh generation rate (for a system up to 4kW), or the new rate of 21p.

It will be interesting to see whether the government withdraws its appeal once the 3 March deadline is gone. Some observers say the appeal is just a cynical move to prolong uncertainty and keep as much of a lid on the over stretched FIT budget as they can.

These are the possible outcomes:

1. DECC withdraws the appeal.
Everyone who installed in the period in question receives the 43.3p rate for 25 year life of the tariff.

2. DECC is refused leave to appeal.
Everyone who installed in the period in question receives the 43.3p rate for 25 year life of the tariff.

3. DECC is granted leave to appeal, and loses.
Everyone who installed in the period in question receives the 43.3p rate for 25 year life of the tariff.

4. DECC is granted leave to appeal, and wins.
Everyone who installed in the period in question receives the 43.3p rate up to 31 March 2012, and 21p per kWh for the rest of the life of the tariff.

There is also a greater potential danger if DECC wins an appeal which is being highlighted by Friends of the Earth and SolarCentury. "Everyone who installed in the period in question receives the 43.3p rate for 25 year life of the tariff," says Friends of the Earth executive director, Andy Atkins.

This seems quite a big leap, as the government has always been keen to emphasise that the changes are for new installations, and are not retrospective. If it were true it would leave the industry in an ongoing state of uncertainty which would be disastrous all round. If you know any keen legal brains, please encourage them to comment here.

Whatever happens, if DECC is granted leave to appeal it is likely to take at least a year before it's all sorted out.

Photo by Brian Kusler

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