Environmental Law News

Posted on: 7 January 2019

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan and Mark Davies consider environmental law predictions for 2019, an unwelcome Christmas present for Thames Water and the latest Water Conservation Report from the Secretary of State.

 

Environmental Law Predictions for 2019

We begin this year as we did the last: with our predictions for environmental law in the forthcoming year.

Last year our very own Christopher Badger predicted that (see the blog, 8 January 2018): single use plastics would be targeted; more trees would be planted to tackle air quality issues; and that there would be an increase in the prominence of green corporate reporting.

How did he get on? Well, on single use plastics it was certainly a busy year with two consultations being run by the Government on how single use plastics should be targeted. The latter, which specifically targeted plastic straws, plastic-stemmed cotton buds and plastic drink stirrers, closed on 3 December 2018 with a predicted ban coming into force in late 2019/early 2020.

On planting trees, the progress over the last year has been somewhat less impressive with the Northern Forest (50 million trees between Liverpool and Hull over the next 25 Years) being promised back in January but the first trees only actually being planted at the end of November. Progress will need to be somewhat more impressive by the end of this year if the target it to be met.

There has also been an increase in the coverage of green corporate reporting (although this is certainly still something to watch in this coming year) with notable events including consultations being announced by the FCA and PRA on the impact of climate change on finance, ClientEarth reporting major corporations to the FRC for failing to address climate change risks in their strategic reports and new guidance being issued by the FRC to avoid such complaints.

So, apart from a continued trend towards green corporate reporting, what are our predictions for this year?

  • A shake-up of the approach to waste crime – an obvious starting point with DEFRA’s ‘Waste and Resources Strategy’ having been published just before Christmas. Waste criminals beware!
  • More interest in the environmental impacts of the chemical sector – this is a topic that has been bubbling away in the background for some time now, but with the spotlight firmly on the chemicals sector regarding REACH, might this be the year when the environmental impacts of it are properly scrutinised?
  • A redundant Environment Bill – the final (and most outlandish) prediction is that the long-fêted Environment Bill might become largely redundant if either Brexit does not happen at all or Parliament votes on a deal which sees the UK commit to retaining EU environmental laws.

Here’s to a great 2019!

 

An unwelcome Christmas present for Thames Water

It’s the Friday before Christmas, all of the presents are bought and wrapped, the tree is up and decorated, what could possibly go wrong? If you’re Thames Water, rather a lot: the company was fined £2 million at Oxford Crown Court on 21 December for an incident in 2015 in which two Oxfordshire streams were polluted with raw sewage, killing almost 150 fish, and a nearby garden was flooded.

Sentencing, Judge Peter Ross heard that Thames Water had disregarded more than 800 high-priority alarms needing attention over four hours in the six weeks prior to the incident. A further 300 alarms were reportedly not properly investigated, all of which would have indicated that the offending pumping station was failing. A further alarm was apparently deliberately deactivated during a night shift.

The company were sentenced, after pleading guilty, on the basis that the discharges constituted a high-end, category three harm offence. Thames Water was ordered to pay the Environment Agency’s full costs of £79, 991.57.

To quote Robert Webb – ‘that wasn’t very Christmassy’.

The full press release may be found here

 

Water Conservation Report 2018

Section 81 of the Water Act 2003 imposes a duty upon the Secretary of State for Environment “to encourage the conservation of water” and to produce a report every three years stating what steps have been taken/are proposed to be taken to that end. The latest such report was presented to Parliament in December.

The report identifies three major areas requiring attention:

  • leakage; at present 22% of treated water put into supply is lost through leakage, which has scarcely reduced since 2014; in 2018 eight water companies missed their leakage targets.
  • per capita consumption; this too has scarcely changed in recent years.
  • metering; only 50% of households have a metered supply (this is of course not a form of consumption in its own right, but a means of drawing attention to, and capturing the economic cost of, other consumption).

Ofwat has challenged undertakers to reduce leakage by 15% by 2025, to which the industry has responded with a proposal for 16% reduction, and 50% by 2050. OFWAT has also introduced a performance commitment for per capita consumption in the PR19 quinquennial planning process, to which the industry has responded with ambitious targets, the principal mechanism appearing to be metering with a target of 62% by 2020 and 83% by 2045.

As for the steps currently being taken by Government, these appear to be “endorsement” of the proposals of the undertakers, and “call for evidence”/consultation about setting non-binding targets for personal water consumption.

Recent progress is reported as including:

  • the 2015 update to the relevant building regulations permitting local authorities to introduce an optional higher standard of 110l/person/day for new houses.
  • the stimulation of the industry into producing a long-term planning framework.
  • the issue of guiding principles for the 21019 round of water resources management plans.
  • the issue of a strategic policy statement to Ofwat, requiring in particular a focus on demand management.
  • the publication of the Government’s 25 year environment plan.
  • the publication by Waterwise of a water efficiency strategy in 2017.
  • the creation of a retail market for water supply to businesses, charities ad public sector organisations, although it is acknowledged that to date the (unspecified) resulting “water efficiency measures” anticipated by Ofwat have not materialised.
  • the proactive intervention of the Secretary of State on leakage
  • the emerging national policy statement on water resources infrastructure; a final report is anticipated in the autumn of 2019.
  • support of research into demand management.

These are challenging issues. It is difficult to gain any sense of the relative scale of the two substantive sources of waste identified above and of the potential gains from improvements, but it seems pretty clear that leakage is the real problem. Not all of it is from the undertakers’ pipes – about 25% is from consumers’ supply pipes. This can be detected, and its elimination encouraged, by smart metering. However the industry’s share of the problem is three times greater and the resulting “reputational” difficulties are recognised in the report. There is a clear basis for the current public attitude being “Physician, heal thyself.”

There is also a limit to the scope for reduction in household consumption, an activity which, unlike leakage, is not per se a problem but rather a principal purpose of supply. It is of course one of the supreme ironies of the current system that large quantities of water from public supply (all expensively treated to EU drinking water standards) are consumed to flush lavatories, to wash cars and to water gardens whilst truly vast quantities of rainwater, perfectly suitable for such purposes, are locally harvested by gutters merely for immediate discharge into an overloaded and largely combined sewerage system, with all the resulting problems of flooding and pollution. Nevertheless, even if more sustainable methods of consumption were developed, the basic domestic functions of drinking, cooking and washing would carry on largely unabated, although the report does moot water efficiency labelling for household appliances as one practical means of reducing consumption. It also states that undertakers will be required to impose controls such as hosepipe bans before being permitted to abstract more water on times of drought.

The report further notes that “… new water resources will also be needed meaning new large infrastructure such as reservoirs or water transfers will be part of the solution”. That may be so to the extent that the problem is current demand or resilience of supply, but insofar as it is waste through leakage or insouciant consumption, to describe a new reservoir as its ‘solution’ would be an odd way of putting it. The need for new resources is unexplained in the report.

 

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