Environmental Law News Update

In this latest Environmental News Update, Christopher Badger comments on the European Commission’s final warning to the UK on air pollution, the recent prosecution of a water company fined over £200,000 for sewage pollution, and the publication of a ‘Manifesto for a Greener UK’ by a coalition of NGO’s.


European Commission issues final warning to UK on air pollution

The UK has been given a final legal warning over its continuing failure to meet EU air quality limits. In a reasoned opinion dated 15 January 2017, the European Commission has threatened the UK with court action concerning illegally high levels of nitrogen dioxide.

The UK is not the only member state to be threatened – Germany, France, Spain and Italy were also cited in the opinion. Most emissions result from road traffic.

The opinion identifies 16 air quality zones where there have been persistent breaches of nitrogen dioxide limits, including London, Birmingham, Leeds and Glasgow. It states that “much more effort” is necessary to meet the obligations of EU rules and safeguard public health.

The European Commission press release can be found here


South West Water ordered to pay over £200,000 for sewage pollution in Cornwall

South West Water have been fined £185,000 for two offences (£175,000 on the first, £10,000 on the second) plus costs following the illegal discharge of untreated sewage to the river Fal in Cornwall. 730,000 litres of sewage escaped over a period of nine hours, in an estuary that is home to mussel and oyster bed shellfisheries, a site of special scientific interest and a special area of conservation. The principal offence was categorised a negligent cat 3 for the purposes of the Sentencing Guideline.

South West Water were fined £50,000 in February for another pollution incident at its Calenick sewage pumping station, £300,000 in December for polluting a stream in Devon and £214,000 in October 2015 for discharging sewage into a tributary of the Tamar estuary.

The financial statements for South West Water show a turnover of £506 million for the year ending 31 March 2016 and profit for the year after tax of £160 million (after non-underlying items).

South West Water operates a significant number of wastewater treatment works, which can individually service a comparatively very small number of people. Consequently, the scale of the infrastructure operated by South West Water is extensive and can pose a risk of pollution incidents occurring if problems do develop.

Further news on the case can be found here


NGO coalition calls for new environment law post Brexit

Greener UK, made up of 13 NGOs including the National Trust, ClientEarth, WWF, Greenpeace and the RSPB, has published ‘A Manifesto For A Greener UK’ identifying what it considers to be 8 key action points for a greener UK. The action points include:

  • fully transposing and maintaining existing EU environmental laws and principles through the Repeal Bill together with ensuring that necessary governance arrangements are in place for robust implementation and enforcement in the future; and
  • creating an “ambitious” new Environment Act that sets measurable milestones for environmental restoration and standards.

As may be anticipated in a manifesto, the publication doesn’t address any detail on its proposals. In particular it doesn’t seek to tackle the suggestion by Andrea Leadsome, DEFRA Secretary, back in October that there was some doubt that approximately a third of EU environmental law may not be able to be easily transposed into domestic legislation. Nor does the manifesto give any detail on the current environmental priorities for the EU and the extent to which any of those priorities are mirrored by current UK legislation or policy.

The manifesto can be found here


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What would be the legal framework for the regulation of UK trade if we left the EU without concluding a trade agreement?

Posted by: Stephen Hockman QC, Christopher Badger and Stuart Jessop.

The position of the Government is that, if no trade agreement is agreed with the European Union at the end of the Article 50 process, or if Parliament rejects the trade agreement negotiated by the Government, the United Kingdom will automatically leave the European Union (“EU”) and fall back on World Trade Organisation (“WTO”) trading rules.

The above analysis makes the following assumptions:

  • That the UK will not change its mind on leaving the European Union (assuming that it can do so under the terms of Article 50);
  • That the deadline for leaving will not be extended at the end of the two year Article 50 process;
  • Negotiation of final trade agreements will not have been completed at the end of the two year period.

The UK is already a WTO member. It is highly unlikely that Brexit would have any effect on this fact. However, as a current member of the EU, the UK does not have any individual tariff agreements with the WTO. This has been recognised by the Government which has stated that they will try to replicate so far as possible the current EU obligations.

For the large part, this process should be straightforward. A large number of tariffs can be replicated. However, some current tariffs reflect volumetric calculations across the entire EU. Replicating these will be less straightforward.

The most interesting legal analysis will arrive if the UK and the EU aim to agree to a transitional agreement, to move on from a position of replicating EU agreed tariffs to a specific trade agreement that reflects the priorities and strengths of the UK – EU relationship. There is a risk that WTO rules would preclude such an agreement.

The rules of the WTO kick in at the moment that a WTO member attempts to agree a preferential trading arrangement whereby not all of the trade is “unrestricted”. The UK will not have the advantage of being able to agree a transitional agreement with the EU (relating to a period after its departure) whilst putting WTO rules to one side at the same time.

Consequently, the legal framework for the regulation of UK trade will depend on the restrictions that are placed upon it by the WTO. If the UK wishes to agree a temporary preferential trading agreement with the EU as a means of trading under a transitional arrangement until a permanent agreement can be reached, then this would be subject to WTO rules. To depart from the WTO rules would require some form of agreement with the other WTO countries. Given that there are 163 of those, such an agreement may require some significant political skills.

The alternative legal framework is for the UK to be subject to the WTO rules until a final trade agreement can be reached with the EU. It is generally thought that this will take some significant time, perhaps in the order of 10 years or more. Such an outcome may well be politically unattractive.

It is therefore critical that the Government understands the proper legal restrictions that may be put in place by the WTO in the event that no trade agreement is reached by the time the UK leaves the EU. A failure to do so may have the unfortunate effect of heavily restricting the UK’s trading ability for a considerable period of time.

Next weekWhen Article 50 is triggered, can the UK change its mind?


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Environmental Law News Update

In this Environmental News Update, Christopher Badger comments on a record payment for an enforcement undertaking agreed by the Environment Agency, the House of Lords Brexit report, and the UK’s role in the EU-ETS scheme.


House of Lord publishes Brexit report

On 14th February 2017 the European Union Committee of the House of Lords published a report entitled ‘Brexit: environment and climate change’. Much of the report confirms that which is already known:

  • the breadth and depth of EU environment and climate change law means that transposing that legislation into UK law will be immeasurably complex;
  • the current approach of the Government fails to make it clear how and to what extent CJEU judgments and other EU guidance will be transposed into domestic law;
  • environmental legislation and policy is vulnerable to short term domestic change following withdrawal from the EU.

The report makes a number of suggestions on the future of UK policy. These include the fact that the Government will need to carefully consider the means by which international agreements are enforced in the UK, will need to carefully consider the extent to which any free trade agreement with the EU will constrain future environmental policy in the UK and whether, in light of tariffs that may be imposed as a consequence of withdrawal, the approach of the UK to waste management is still feasible and fit for purpose.

Finally the report highlights the fact that as a result of withdrawal, there is a significant risk that the influence of the UK on environmental policy will be diminished. It recommends that the Government review alternative means by which the UK may be able to influence the EU’s environmental and climate change policies. The report also highlights that the Government will need to provide a very substantial increase in resources to ensure that UK and EU policy developments receive the necessary attention.

The report can be found here


EA agrees record £375,000 enforcement undertaking

Following the pollution of the river Tyne with raw sewage, Northumbrian Water Ltd has agreed to pay £375,000 as part of an enforcement undertaking. The money will be split between the Tyne Rivers Trust, Northumberland Rivers Trust, Wear Rivers Trust, Tees Rivers Trust and Groundwork.

The payment is the highest payment to date for an enforcement undertaking following a breach of the Environmental Permitting Regulations.

Further detail on the enforcement undertaking can be found here


UK may leave the EU-ETS scheme

British MEP Ian Duncan has stated that he was not clear how the UK could be involved in further negotiations about the EU ETS scheme after Brexit. He considered that it would be “very difficult” for the UK to be part of a system over which it could have no influence.

It was open to the UK to develop its own scheme on emissions trading, which could learn from the EU’s example.

The UK is the EU’s second-largest emitter and its utility companies are among the biggest buyers of carbon allowances under the EU ETS. Consequently, if the UK does leave the scheme, this is likely to have a significant effect and has the potential for significant repercussions for efforts to reduce emissions.

It is of note that the rules of the ETS are currently enforced by the CJEU. The Government has stated that the issue of the UK’s involvement in the EU ETS remains part of the Brexit discussions.


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