By Jean Eaglesham, Chief Political Correspondent
Financial Times: December 9 2007
Gordon Brown faces a dilemma on energy policy after a legal warning from Greenpeace, the environmental group, that a decision to approve a new generation of nuclear power stations would "not be lawful".
The prime minister is expected to give the green light to replacing Britain's ageing fleet of nuclear power stations next month.
New construction sites have been identified and a number of energy companies have signalled their enthusiasm for the multi-billion-pound project.
But the threat of legal action from Greenpeace, which has sent a formal warning letter, gives Mr Brown a political headache.
It comes as the government is set to unveil a massive expansion today in renewable energy projects, which some see as challenging the need for a new generation of nuclear power.
The government has already lost one legal challenge by Greenpeace this year, when a judge ruled that an energy policy consultation had been "very seriously flawed". The ruling threw Tony Blair's plans to commission new nuclear stations into disarray, forcing the government to launch a second consultation. Losing another legal challenge would do more than simply threaten to delay the process of new nuclear build.
"People might start to question the underlying policy," a senior minister told the Financial Times. "We're trying to make the decision as bullet-proof as possible."
Greenpeace will argue on Monday that the government has seriously failed in that "bullet-proofing" process, and has instead left itself open to legal challenge if it endorses nuclear renewal.
The green group has gained advice from the same lawyer that secured its first court victory - Harrison Grant, the law firm and leading counsel - that the second consultation was also "flawed and in some respects seriously misleading".
In a letter to government lawyers, Harrison Grant sets out "why, in our view, it would not be lawful, at this stage, for the government to make a decision in favour" of new nuclear build.
Embarrassingly for Mr Brown, the letter cites his statement to MPs in July that "we have made the decision to continue with nuclear power . . . by building a new generation of nuclear power stations".
This seemingly unequivocal commitment, allied to Mr Blair's declaration in February that the court ruling "won't affect the policy at all", suggests the government has made its mind up, undermining the second consultation, the letter says.
It also argues that the government consultation "creates the impression that the problem of nuclear waste has been solved", when no such solution for geographic disposal has been reached.
"Our legal advice is very clear and very damning," said Ben Ayliffe, head of nuclear campaigns at Greenpeace. "We're not ruling out applying for a judicial review. The ball is now in the government's court."
A government official said ministers believed that the second consultation "was open, fair and full". The government was "now considering the thousands of responses we have received" before making a decision in the new year.