Contaminated land,green energy and the energy crisis: Should contaminated land sites be targeted and used to produce renewable energy in the United Kingdom?

Benefits of using contaminated land to produce renewable energy

Set against the above background, this opinion therefore considers how can greater energy security be obtained in the UK over the longer term. It is suggested here that the UK's significant tracts of contaminated land should, if possible, be better utilised to help build a more sustainable energy infrastructure. It is argued that the UK government should explore the use of contaminated land sites to provide renewable energy (i.e. solar, wind, biomass, geothermal and cooling systems), ⁸ and that this should be part of its long-term energy policy mix. This approach is necessary, because, for example, from the process of identifying a site ⁹ to energy generation, a wind farm can take several years to come into operation. It is suggested here that this approach is necessary for the following reasons: first, it takes time for contaminated land to be identified and for it (if required) to be remediated; second, the infrastructure for sustainable energy could (depending on the size of the site and the type of energy being proposed) increase; third, it could reduce pressure on greenbelt and agricultural land; ¹⁰ fourth, more sustainable energy would be produced; fifth, it is likely to be an efficient and effective use of such land; sixth, feelings expressed by local people of ‘NIMBYism’ (not in my backyard) may be less prevalent; seventh the energy produced can be provided for local and national use; eighth, it may assist with avoiding additional environmental degradation; and finally, the proposed use is likely to help the government in reaching its Paris Agreement ¹¹ targets. ¹² Other reasons, which have been given based on experience gained in the United States of America (USA) as a result of adopting this approach are mentioned below.

What is contaminated land?

A key question to ask therefore, is what is deemed to be ‘contaminated land’ in the UK and how much of it could be potentially used to produce renewable energy? To clarify, ‘contaminated land’ is different from ‘brownfield land’. The latter is broader and refers to land that has been previously used for (e.g.) industry. ¹³ Additionally, ‘land affected by contamination’ and ‘land contamination’ are broader descriptors than ‘contaminated land’. ¹⁴ Notwithstanding this, it is suggested here that all of these land types should be utilised if after rigorous assessment and the required remediation they were deemed appropriate to do so by the relevant local authorities. Contaminated land per se refers to land that is affected by ‘contaminating substances’ ¹⁵ and is legally defined by the Environmental Protection Act (EPA) 1990. ¹⁶ The contaminated land regime is designed to identify and remediate contaminated land. Such land must be identified by enforcing authorities (local authorities) ¹⁷ and remediated by responsible persons (Class A persons). ¹⁸ Controversially, where responsible persons cannot be identified, liability transfers to the current ‘owner’/‘occupier’ (Class B persons) of the site. ¹⁹ The legal definition of ‘contaminated land’ describes the situation where land is causing or could cause one or more of the following: (i) significant harm to people, property or protected species; (ii) significant pollution of surface waters (e.g. lakes and rivers); or (iii) harm to people as a result of radioactivity. ²⁰ Land can also be determined as a ‘special site’; ²¹ these are sites that are particularly harmful or owned by the Ministry of Defence. ²² The statutory guidance accompanying Part IIA of EPA (1990) ²³ states that land is a risk if a ‘contaminant linkage’ is present, or is capable of being present. ²⁴ The linkage is where a ‘substance’ affects or has the potential to affect a ‘receptor’ (e.g. a living organism or ecological system) via a ‘pathway’. ²⁵

The rationale behind EPA (1990) is that if contaminated land is not dealt with under Part IIA of EPA (1990), the majority of it will be dealt with through the town and country planning system when the site is redeveloped or it when it is remediated voluntarily by site owners.

Due to the various factors that can affect a site, contaminated land sites are very difficult sites for local authorities to deal with, ²⁶ and often appropriate solutions cannot be found meaning that land and property may be just left vacant.

The UK

There are c. 325,000 sites in the UK that could be classed as ‘potentially contaminated land’. ²⁷ This figure, although not conclusive, suggests that the land mass that could be remediated for sustainable energy sites is significant. However, in the UK, the idea of using contaminated land to provide renewable energy is relatively new. This is not surprising given the fact that there is no specific policy on ‘using contaminated land to deliver renewable energy benefits’ for local authorities to refer to when they carry out their contaminated land survey and/or determine planning applications. Despite this, in 2021, Leeds City Council granted planning permission for a 50-hectare solar farm on a contaminated site. When completed, the site will generate enough energy to run 12,000 homes. The Council has since stated that it wants to see the installation of more solar panels on sites across the city but noted that it had a limited amount of publicly owned land that could be used for this purpose, and at the same time accepted that it could not dictate to private landowners to adopt this approach, even though they were keen for the idea to be taken up. ²⁸ This example is, however, rare. ²⁹

In order to improve this situation, it is suggested that an enormous amount of detailed research first needs to be undertaken by the government, local authorities and private industry to identify which sites would be suitable for delivering renewable energy. ³⁰ Renewable energy developers, lenders and insurers will have to properly assess the environmental and financial risks involved in delivering different types of renewable energy (i.e. wind or solar) on a site before, during and after construction and in relation to the operational phase of a building on a site. ³¹ As part of this process, it may be determined that a site may require little, none or a substantial amount of remediation before it can be reused. ³²

Some of the questions that the research will need to consider are: why has the government not explored this idea before? How will appropriate sites be found? ³³ What methodology will be used? What type of renewable energy could be installed on a site? Where should the installation be located on a contaminated site? What factors must be taken into consideration? Should government provide tax incentives for private owners/developers to turn this idea into reality? Who should bear the costs for remediation and development? Should public-private partnerships be promoted? Are there case study examples that can be promoted? Will government, industry and local authorities be able to work together to implement the idea? As part of this research, it would be helpful if a handbook or different types of guidance were produced, that dealt with different situations and construction activities.

However, without a policy encouraging the use of contaminated land to deliver renewable energy benefits, ³⁴ coupled with the government actively supporting this idea and further detailed research being undertaken in this area, the UK will continue to fall behind the USA which has already pioneered this approach and reused many contaminated sites to produce renewable energy benefits for local communities and the State.

The USA

In the USA, there are many proposed and operating solar and wind projects on contaminated land. ³⁵ In 2008, the United States Environmental Protection Agency (US EPA) launched its initiative ‘Re-Powering America's Land’ to actively

“…encourage[] renewable energy development on current and formerly contaminated lands, landfills, and mine sites when such development is aligned with the community's vision for the site.” ³⁶

The US EPA has estimated that there are 480,000 contaminated land sites in the USA, which amounts to 15 million acres, or about 0.5% of the country's total land area. ³⁷ There are many sites that are available, therefore, and that can be used to turn a liability into a community asset. Since its inception up until 2016 1124.3 MW of renewable energy was being produced from energy installations on 179 contaminated land sites. ³⁸ The advantages of reusing contaminated land sites, landfill sites and mineral sites to produce renewable energy include, in addition to the ones above, the following: (i) there is open space; (ii) there is a site-specific attribute that can actually shorten the development timescale and the costs involved in transforming the site (e.g. the site may already have existing infrastructure that can be used, such as roads, power lines); (iii) open space can be protected; (iv) vacant land and derelict property are transformed and in doing so reduces blight in the area; (v) the value of the property that surrounds the site improves; (vi) jobs are created; and finally, (vii) the renewable energy produced is beneficial for the environment. From an economic perspective, there are:

“…electricity cost savings, additional land lease revenue to the town or city site owner, and increased tax payments for the land and/or renewable energy systems to the local municipality and/or state.” ³⁹

The types of developments that have taken place include solar photovoltaic (PV) ⁴⁰ on a landfill site, solar and wind installation on a chemical and explosives manufacturing site, wind installation on a former steel production site, geothermal heating and cooling system on a contaminated radiator site, to name but a few. ⁴¹

Using contaminated land to deliver renewable energy benefits in the UK

So, bearing in mind the above, a key question to ask is why is contaminated land in the UK likely to be a possible good option for sustainable energy sites? In short, because the law does not adopt an approach of total remediation. So long as there is no linkage or potential for one, no further remedial action is necessarily required. The statutory guidance states that:

[F]or a risk to exist there must be contaminants present in, on or under the land in a form and quantity that poses a hazard, and one or more pathways by which they might significantly harm people, the environment, or property; or significantly pollute controlled waters. ⁴²

Whilst the approach has been criticised as a somewhat soft touch to remediation, ⁴³ it should be noted that the regime has nevertheless encouraged scientific innovations in the form of identifying and remediating polluted land and waters. ⁴⁴ The legal situation should however be also seen as providing a flexible approach that encourages redevelopment. In practice, this means that remedial works can be less invasive (and ultimately, less expensive) to undertake, even when the works are conducted in situ, for example, barrier membranes can be used to remove contaminant and receptor linkages. ⁴⁵ Depending on the scale of the contamination, there is the possibility of mass transfer and ex situ remediation works that could be adopted. ⁴⁶ In other words, any form of remediation must be site specific, and clearly, all the relevant stakeholders will require the appropriate remediation to be undertaken for the site and the use proposed on it.

In the UK it is accepted that remediation can be highly expensive, ⁴⁷ and that direct liability can transfer to the current owner/occupier of the site, even though they may have not been responsible for contaminating the site per se. ⁴⁸ This is clearly problematic. Furthermore, there is the inevitable problem of the town and country planning system's red tape delaying remedial works, which needs to be looked at, ⁴⁹ and which is bolstered by a lack of funding/financial incentives for redevelopment projects. ⁵⁰ Nevertheless, it is strongly argued here that contaminated land should be better prioritised by policymakers as an alternative land use approach for sustainable energy projects. As has been shown, the law offers a flexible approach, but greater funding and drive by the government to promote renewable energy on contaminated sites is needed. In short, it is necessary to identify those sites with high potential for development, and establish ways to boost ‘renewable energy developers’ future appetite.