Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and William Upton provide comment on the £20 million fine imposed on Thames Water for environmental offences, the latest EU warnings on the risks to the environment of future regulatory divergence, and recent case law illustrating the difficulties of assessing impacts on sensitive nature conservation areas from new housing developments.

 

Thames Water fined £20 million for environmental offences

Thames Water Utilities Ltd were fined £20,361,140.06 in fines and costs for a series of significant pollution incidents on the River Thames or its tributaries. 6 separate cases were brought together for one hearing at Aylesbury Crown Court the biggest freshwater pollution case in the Environment Agency’s 20-year history.

5 sewage treatment works (2 serving populations of 100,000+ and 160,000 respectively) and the largest sewage pumping station outside London were the subjects of the prosecutions. All were during the period July 2012 to early 2014, the same period of offending as 6 previous convictions of TWUL for pollution incidents.

The EA put forward evidence of a catalogue of failures by TW’s management, involving repeated discharges of untreated or poorly treated sewage into rivers, disregarding risks identified by their own staff and failing to react adequately to thousands of high priority alarms.

For weeks, untreated sewage, amounting to millions of litres per day, was diverted to rivers and away from the treatment process, despite the fact that incoming flow was well within the designated capacity of the treatment works.

HHJ Sheridan condemned the “disgraceful conduct” of TW, which he said was “entirely foreseeable and preventable”. TW demonstrated “scant regard for the law, with dreadful results for people who live in the area”.

The Court found that culpability for two of the offences at pumping stations in Aylesbury and Little Marlow was reckless and the environmental harm was category 2, attracting individual fines of £9 million and £8 million respectively. Remaining offences were deemed to be negligent culpability, category 3 harm. Critical to the sentence, the Court found that management failures had been “systemic”.

For the year ending 31 March 2016, Thames Water Utilities Ltd had a gross turnover of just over £2 billion and operating profit of £742 million. The court emphasised that the message must be brought home to management and the shareholders, and asked that the fines be born by the company, not the public. In total the fine amounted to two weeks profit.

The highest fine for an environmental offence prior to this sentence had been £2 million, imposed on Southern Water on 19 December 2016 for a negligent category 1 offence.

 

Michael Barnier warns the UK against “regulatory dumping”

At a plenary session of the European Committee of the Regions, Michael Barnier identified that due to the fact that the UK currently complies with all EU standards and rules, the risk for the EU is not an issue of regulatory convergence but whether regulatory divergence could harm the internal market. To guard against this, Barnier’s stance was to take a position whereby regulatory divergence did not turn into “regulatory dumping”, what he viewed as unfair competition from a country with lower environmental and social standards.

One approach, as yet unmentioned by any party but conceivable to the author, could be to attempt to attempt to bind the UK to EU environmental standards as a precondition of market access. In this way environmental standards could retain both national and supra-national effect, by attempting to tie the hands of the UK on future trade negotiations with other states through an overarching requirement of environmental parity with the EU at the risk of otherwise facing sanctions and/or restriction of trade with the EU. It is not uncommon in trade agreements over the last 25 years for environmental standards to feature as stand alone conditions.

The UK Government has stated that there is a strong shared interest in maintaining cross-border trade and that, as a consequence, “a degree of alignment between the UK and the EU on environmental standards will continue to be key to maintaining access to each other’s markets” (note the word “degree”!). What will prove interesting is whether the EU attempts to negotiate and maintain some form of supra-national control over the UK’s environmental standards, even after the UK has left the EU.

 

Irrational expert advice

The difficulties of assessing impacts on sensitive nature conservation areas from new housing has been well illustrated by the case of Wealden District Council v. Secretary of State for Communities and Local Government, Lewes District Council and South Downs National Park Authority [2017] EWHC 351 (Admin), handed down by Mr Justice Jay on 20 March 2017. It is also a striking example of how irrational expert advice will infect and vitiate the whole decision, despite the Court’s normal reluctance to interfere in the merits.

The Ashford Forest is a Special Area of Conservation (“SAC”) that demands a high level of protection under the Habitats Regulations. The SAC’s extensive areas of lowland heath are vulnerable to nitrogen dioxide pollution from passing traffic. Wealden DC predicted that the likely effects from its own development plan for 9,440 houses was just within the threshold where it could conclude that the environmental effects from the increase in traffic could be regarded as neutral and “scoped” out of any further assessment. The threshold is one used by Highways England in traffic assessment (in the nationally-used DMRB document).

The problem of going above the threshold was that it would trigger the need for an “appropriate assessment” of the implications for the site in view of that site’s conservation objectives. There would be a risk of significant adverse effects to a protected site, and the competent authority could not then approve the plan unless it was certain that the plan will not adversely affect the integrity of the site concerned. There should be “no reasonable scientific doubt” remaining as to the absence of such effects.

So, when the next door planning authorities (Lewes DC and the South Downs National Park Authority) jointly approved their own plan for another 6,900 houses, some of which would take the likely traffic levels above the threshold, when considered alongside WDC’s own housing, you would have thought that this would trigger the need for an appropriate assessment.

However, the advice from the national body responsible for nature conservation, Natural England, was that this level of new development would not be likely to have a significant impact on the SAC. They assumed that the in-combination effects were catered for within the DMRB threshold already.

So, when the Secretary of State’s Inspector and the 2 local authorities took Natural England’s advice, they thought that they would be OK.

But the Court agreed with WDC. The judge accepted that it looked like an in-combination assessment had been made, but he was scathing about Natural England’s advice. It was “plainly erroneous” and “cried out for further explanation”. It could not be supported “on logical and empirical grounds.” What had occurred was irrational. The Wednesbury error in the underlying advice created, without more, an equivalent Wednesbury error in the evaluative assessments carried out by the authorities.

So, although LDC and SDNPA had accepted Natural England’s advice in good faith, the Court had to censure the decisions of the ‘competent authorities’ – in this case, the Secretary of State, as well as the two local authorities.

WDC were a little late in making their challenge, so the Court quashed what it could (all the housing policies in the joint plan that covered the NPA area), and declared that rest of the housing policies in the plan (covering Lewes) were probably in the wrong as well.

The judge also asked that court’s judgment be almost hand-delivered to Highways England. The DRMB should be re-examined, and clarified, to reflect his concerns.

This is a complex outcome for a simple point: in-combination effects cannot be ignored or under-played in appropriate assessments on habitats.

And then there is the general point of importance: if expert advice looks plainly wrong and cries out for further explanation, then you must ask for it.

 

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Article 50 will now be triggered: what happens next?

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

Theresa May has indicated that she intends to trigger Article 50 on 29 March. This will be the start of the two-year timeline set out in Article 50, in the eyes of many people a ridiculously short period of time within which to negotiate, finalise and ratify a deal with the EU before the relevant treaties cease to apply to the UK.

Resolution for vote in the European Parliament
The EU have announced a summit on 29 April to discuss Brexit. This meeting will be used to agree the guidelines for the EU’s negotiating team headed by Michael Barnier. The guidelines are expected to specify the priorities for the remaining 27 EU states as well as the structure of the talks. One practical problem is the fact that this date is in between two rounds of the French election, the outcome of which has the potential to impact on the manner in which Brexit progresses – Marine Le Pen is no friend of the EU! Furthermore, following the summit, the remaining member states will develop confidential directives that give its negotiating body a more detailed mandate, over and above that set out at the summit. This mandate will then need to be approved by the 27 states and negotiations cannot take place until that happens.

Red lines
Priorities do not necessarily mean the same as red lines that cannot be compromised but it has in the past proved extremely difficult to secure sufficient consensus within the European member states to progress trade negotiations at a pace anything other than absurdly slow. In light of this, the EU may take the opportunity to identify principles that in their view cannot be relaxed during the negotiations for the purpose of developing certainty and streamlining negotiations.

Exit fee first?
Michael Barnier has already stated that he wants a “divorce-first” approach to negotiations, delaying talks on a future trade deal until the UK has agreed principles on an exit bill and the rights of EU migrants. The House of Lords has stated that it considers that there is no law or treaty that can compel the UK to pay the estimated €60 billion exit fee but that the UK should nonetheless seek a fair divorce due to the gravity of failing to reach a deal.

Transitional arrangement?
Talks on a transitional arrangement only have any practical merit if such an arrangement is concluded in sufficient time to protect the interests of those who will be directly affected by Brexit. Otherwise, those whose businesses are going to suffer in the absence of any effective trade deal will have made arrangements to mitigate those negative effects.

October 2018
Michael Barnier has stated that he wants talks to conclude by October 2018 to allow both sides time to ratify any negotiated agreement.

EU law over the next two years
Legislative uncertainty and the prospect of regulatory change can be hugely destabilising and poses a significant risk to the economic environment, in particular if its affects medium-term stability and investor confidence. The UK has indicated that it will remain bound by EU laws over the next two years, but at the same time it will be barred from EU discussions on the future regulatory framework of the EU. Its position of influence is likely to steadily diminish. The issue of whether the UK courts will continue to recognise the past and future decisions of the CJEU is as yet unresolved – particularly as it is the stated position of the Government that the CJEU will cease to have any supranational power over the UK following Brexit.

Hot legal topics for negotiations
The Great Repeal Bill is by its nature a temporary arrangement and not the appropriate mechanism for evaluating and implementing the UK’s approach to legal regulation. Almost every area of law will be affected by Brexit in some way. Key legal and regulatory topics that will shape the future of the trading relationship with the UK and the rest of the world include:

– Environmental Regulation
– Sanctions and trade agreements
– Consumer law
– Market regulation

 

Expect future blogs to address the impact of Brexit and key risks in each of these areas in due course.

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Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and William Upton provide comment on the OFWAT consultation, the Bar Council’s Environmental Brexit Paper, and recent tightening of air quality mitigation.

 

DEFRA launches OFWAT consultation

DEFRA is seeking views on the government’s strategic priorities and objectives for OFWAT’s regulation of the water sector in England. As part of the consultation, DEFRA wants OFWAT to work with water companies to ensure that they assess the resilience of their “system and infrastructure against the full range of potential hazards and threats and take proportionate steps to improve resilience where required”.

Other priorities include ensuring water companies plan and invest to meet the needs of “current and future” water and wastewater customers, promote markets to drive innovation in resilience, protect and support vulnerable customers, and focus on the needs of small business customers.

The consultation inevitably focuses on a broad range of Government priorities for the water sector and makes reference to the “forthcoming” 25-year environment plan. Yet there is a risk of a disconnect between references to “environmental resilience” that brings “value for money” to customers and improving current infrastructure with a view to avoiding pollution incidents. Water companies have been the subject of the most severe criminal penalties since the introduction of the Definitive Guideline on Sentencing Environmental Offences. Although some reference is made to ageing infrastructure, it’s a little surprising that greater emphasis is not placed by DEFRA on prioritising the integrity of current infrastructure.

The consultation can be found here

 

Bar Council begins draft of Environment Brexit Paper

The Bar Council, as part of its Brexit Paper series, has begun drafting a Paper on the future of environmental regulation. The Paper seeks to make recommendations to the Government for any short-term transitional arrangement after Article 50 is triggered as well as long-term arrangements for environmental regulation.

The Brexit Papers are written to help evaluate a range of pressing public interest concerns arising from the UK’s decision to leave the EU. The Papers seek to identify the key legal issues in order to facilitate a transition that minimises the risk of legal uncertainty, the loss of rights and possible adverse consequences to the national economy.

The current published papers can be found here

 

Tightening up Air Quality Mitigation

The package of measures being introduced to deal with the continuing failure of the UK to comply with the Air Quality limits keeps on growing. Merton Council have been in the news for introducing a £150 diesel levy on resident, business and trade parking permits from April 2017 – click here for local coverage of the case. The Mayor of London has also been announcing various measures, such as the 12 Low Emission Bus Zones and the introduction of an Emissions Surcharge (“T-charge”) for older polluting vehicles entering the Congestion Charge zone from October 2017.

The main hope for improvement still rests on the new National Air Quality Plan. As keen observers will recall, the Mayor of London took part in ClientEarth (No.2) v Defra [2016] EWHC 2740 (Admin) and welcomed the High Court ruling which held that the Government has broken the law by failing to tackle illegal levels of nitrogen dioxide (NO2) air pollution as quickly as possible. The Court has ordered that the Secretary of State must aim to achieve compliance by the soonest date possible, and must choose a route to that objective which reduces exposure as quickly as possible, and that she must take steps which mean meeting the value limits is not just possible, but likely. The High Court ordered that the draft modified Plan should be produced by 16.00 on 24 April 2017 and a copy provided to ClientEarth. The new plan should then be published and sent to the European Commission by 31 July 2017.

William Upton has already seen a planning appeal refused on Air Quality grounds this year. Given the failure of the national air quality plan, the inspector considered that it was unsafe to rely on emission levels falling between 2015 and 2020 to the extent that had been assumed in the local modelling. He dismissed the application for 300+ houses in Swale because of its effect on a nearby AQMA. The decision is under appeal.

 

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Is litigation the new frontier of climate change law?

Posted by: Frances Lawson

It has only created a minor ripple in mainstream news circles, but its contribution to international climate change law could be far greater. Following on from the successful cases in The Netherlands and Pakistan last year, the Federal Administrative Court of Austria has recently ruled on the incompatibility of a third runway at Vienna-Schwechat airport with the country’s national and international climate change commitments.

In reaching its decision, the Austrian court took the uncommon approach of placing environmental considerations on a level playing field with economic ones, and has furthermore taken an all-too-exceptional long-term view of a development’s implications. In a nutshell, the third runway was refused due to the court determining that short-term economic gains from its construction would be outweighed both by increased greenhouse gas emissions, and by the long-term economic effects of the climate change to which the runway’s construction would contribute.

So, could the UK soon see a similar climate change case, relying in part on the UK’s commitments under the Paris Agreement? Is this to be the chosen way to circumvent the political constraints which make implementation of international climate change law such an intractable problem? Certainly, there is going to be an increasing use of climate change litigation in years to come, supported to an extent by the commitments made in Paris at COP21. Particular jurisdictions are likely to lead the way, namely those whose international climate change commitments are enshrined in domestic law, those states with a more progressive judiciary willing to stride down a brave new avenue in legal decision-making, and those where environmental protection features in the country’s constitution. None of these apply to the UK, and as forward-thinking and innovative a jurisdiction as we are in many respects, we are not known for leading the way in environmental law-making. Another relevant factor is our dualist legal system which gives international law limited weight unless it has been expressly incorporated into domestic legislation. Although there are examples in case law of our highest courts placing considerable reliance on the UK’s obligations under international law, even where these obligations have not been so incorporated, such judgments have rarely extended beyond the field of human rights and humanitarian law, and have not yet ventured into the environmental realm. Our senior judiciary remains rather conservative, and Lord Carnwath, who played a decisive role in the 2010 Heathrow judgment and who is arguably the one member of the Supreme Court willing and able to grapple with the novelties of climate change law, is in the latter stages of his career. Furthermore, as much as the UK has its own domestic legislation on climate change in the form of the Climate Change Act 2006, its litigation potential appears to be limited.

Yet, for all our judicial conservatism and reticence towards international law, with two of the UK’s European neighbours leading the way in climate change litigation, it is almost inevitably a matter only of time before such litigation reaches our shores. When it does, it may not succeed immediately – our senior courts may need a little more time to embrace a new litigation frontier – but there will be a case that succeeds, conceivably within the next decade. And when that case comes, it will be a game-changer, and one which we might be advised to start preparing for now.

You can keep up-to-date with all updates by following @6pumpcourt on Twitter.

 

Can notification under Article 50 be conditional on a “good deal”?

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

As identified in the last blog, it is potentially harmful to the EU if a Member State were able to trigger Article 50 and then change its mind again and again until the negotiations result in a “good deal”. Adopting this as a starting point strongly suggests that notification under Article 50 cannot be made in such conditional terms.

Article 50(3) provides that the Treaties shall cease to apply to a State that has given notification under Article 50 from the date of entry into force of the withdrawal agreement or, failing that, two years after notification is given. This period can be extended if the European Council, in agreement with the Member State concerned, unanimously decides to extend the period.

There are therefore three possibilities, assuming that the UK doesn’t change its mind during the two-year period:

(i) The Treaties cease to apply to the UK after the successful conclusion of a withdrawal agreement;

(ii) The Treaties cease to apply to the UK automatically at the end of two years; or

(iii) The UK, in agreement with the European Council acting unanimously, extends the two-year period.

Read literally, the UK may well end up at the mercy of the other 27 Member States, who may not agree to extend the two-year timetable. Extending this literal analysis further, if the UK wished to reject the negotiated position reached at the end of two years because it didn’t consider that the deal reached was good enough, this may not result in the opportunity to go back to the negotiating table because such an option may not have the approval of all of the other 27 Member States.

The UK would then be faced with a stark decision. It would either exit the EU with no agreement and no Treaties or it could try to change its mind about leaving at all. Subsequent ‘re-notification’ under Article 50 would be both practically and politically unthinkable – imagine the inevitable resentment that would be generated in both other Member States and the UK public.

Consequently, should the UK wish to give a conditional notification under Article 50, for example, that a final decision to leave the EU is dependent on the approval of Parliament following the successful negotiation of a “good deal”, leaving open the option of remaining in the EU in the event of a “bad deal”, the UK must escape from the literal analysis of Article 50.

The main arguments in favour of the UK being able to change its mind are set out in our previous blog. A critical question remains. Does Article 50 provide the other Member States with a power tantamount to expelling the UK from the EU if no withdrawal agreement is reached or if the UK rejects the proposed withdrawal agreement? This, after all, is the logical extension of the literal analysis.

In our view, the two most attractive arguments against such a power can be summarised as follows:

(i) Article 50(1) provides for a decision to withdraw to be made in accordance with that Member State’s constitutional requirements. Reading Article 50(3) together with 50(1), it is inconsistent with the wording of Article 50(1) (as well as the EU’s professed emphasis on democracy) to force a Member State to leave the EU where the decision to reject the withdrawal agreement on offer is as a direct result of the Member State following its own constitutional requirements (for example by consulting Parliament);

(ii) Interpreting Article 50 restrictively fails to give any regard to the potentially severe consequences of expulsion to the UK or the practical realities of a negotiating process involving a large number of differing parties with competing interests or the prospect of a change in Government or approach by the UK during the two-year process. A pragmatic interpretation would not serve to punish the UK by virtue of the fact of notification alone.

The position is far from certain and the arguments set out above are by no means overwhelming. Article 50, on its face, only allows for the three possibilities. In light of the most recent Lords amendment to the Brexit bill, this is yet another crucial issue for the Commons to consider today.

Next week Article 50 will now be triggered. What happens next?

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Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger comments on Budget coverage of environmental issues, recent environmental permitting cases, and the new regime for chemical regulation.                                                                                                                                          


Budget silent on the Environment

Philip Hammond barely mentioned the environment in the Spring Budget. There was no mention of the solar industry, climate change or air pollution. Those lobbying for an increase in tax on diesel vehicles were also disappointed.

He did say that he had “heard … the calls by North Sea oil and gas producers and the Scottish government to provide further support for the transfer of late-life assets. As UK oil and gas production declines, it is essential that we maximise exploitation of remaining reserves and so we will publish a formal discussion paper in due course.”

There are to be no further cuts to departmental budgets beyond those set out in the 2015 Autumn Statement but no extra money to departments who face an uphill task to cope with inevitable policy changes during and after Brexit.

The Budget did propose to extend the scope of landfill tax to illegal waste disposals. Details of this proposal are expected to be set out in a consultation on waste crime due later in the spring. It should be noted that caselaw has already held that illegal deposits of waste are liable to landfill tax where the land in question has effectively been used as an illegal landfill site – see R v Morgan (Christopher Lynn) [2013] EWCA Crim 1307 and specifically ss.39-41 Finance Act 1996. Consequently, the avoidance of landfill tax as a result of the illegal deposit was an avoided cost for the purposes of confiscation (and by analogy presumably Step 5 of the Definitive Guideline on Sentencing Environmental Offences).

 

Associated Waste Management prosecuted for odour breaches

Associated Waste Management have been fined a total of £125,000 for odour offences at two waste management sites in Leeds and Bradford. In addition the firm was ordered to pay £75,000 in costs.

49 separate odour complaints were received from residents living close to the Bradford site between March and July 2013. The EA had issued an enforcement notice requiring it to improve its odour management plan. It rejected the company’s first attempt, but approved a revised version in October.

75 odour assessments were carried out between June 2012 and October 2013 in Leeds, with the majority recording odours likely to cause offence to human senses.

 

UK Chemical Regulatory Regime will broadly follow REACH after Brexit

Dr Therese Coffey MP gave evidence to the Commons Environmental Audit Committee on Tuesday 7 March, during which she stated that it was likely that the UK’s chemical regulatory regime would broadly follow REACH after Brexit, with “seamless” approaches to assessment. Alignment with US standards was not on the cards due to the established trading relationship with European partners and a desire to preserve strong environmental standards.

She also stated that it was likely that EU environmental concepts, such as the precautionary principle and the polluter pays principle, would be rolled over into UK law. However, she stated that the UK would prefer to take a “risk-based approach” to the precautionary principle.

Amusingly, the new regime for chemical regulation has already been dubbed ‘BREACH’.

 

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

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

Article 50 reads:

  1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
  2. A Member State which decides to withdraw shall notify the European Council of its intention. In light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
  3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
  4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
  5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

No reference is made within the text above to whether or not a Member State can change its mind after triggering Article 50. The judgment in R (Miller & Anor) v Secretary of State for Exiting the European Union [2017] UKSC 5 records at paragraph 10 that it was common ground between the parties that a notice under Article 50(2) cannot be withdrawn, once it is given. There is a considerable body of opinion that supports the proposition that Article 50, once triggered, is irrevocable.

Yet it remains highly arguable that, because the opposing views were never argued in the Supreme Court, Miller is not an authority for the proposition that Article 50, once triggered, is irrevocable. On a practical note, had the parties not agreed this common ground, it would have been almost inevitable for the UK to make a reference to the CJEU to ask the CJEU to determine whether Article 50 was irrevocable, a fact that would almost certainly have been unthinkable in the eyes of the public.

Public figures who have suggested that the UK can change it mind even after Article 50 has been triggered include John Kerr, former British ambassador to the EU (who is recorded as having drafted Article 50) told the BBC that legally, the EU could not insist that the Member State leave the bloc, simply because Article 50 had been triggered and Donald Tusk, who declared on 13 October that “there are no legal barriers for this kind of decision”.

The dominant arguments, both legal and pragmatic, in favour of the UK being able to change its mind can be summarised as follows:

i) Article 50(2) is predicated on an “intention” to withdraw. If there is no “intention” to withdraw, because the UK has changed its mind, then there can be no withdrawal. Article 50 is not a framework for the expulsion of a Member State;

ii) Article 50(1) records that a decision to withdraw must be in accordance with that Member State’s “constitutional requirements”. Notification to withdraw can be distinguished from a decision to withdraw. Miller had confirmed that a decision to withdraw can only be determined by Parliament. As the decision to withdraw will affect rights currently enjoyed by UK citizens as a consequence of EU membership, a further Act of Parliament is required to give legal effect to a decision to leave the EU. It therefore remains open to Parliament to refuse to pass such an Act, frustrating the process of withdrawal;

iii) The EU exists, in part, to further the interests of its members. If the collective interest of the members of the EU was in favour of the UK remaining part of the bloc, it would be contrary to common sense to refuse to permit the UK to change its mind.

The dominant legal and pragmatic arguments taking the counter position can be summarised as follows:

i) Article 50 makes no reference to a Member State being able to change its mind. It requires, as a precondition to triggering Article 50, a decision by the Member State to withdraw. Due to the overwhelming unilateral nature of Article 50 (it doesn’t even provide for the Member State to justify why they are leaving or to allow for the EU and that Member State to resolve their differences) then any decision to leave the EU should be taken as final.

ii) It is self-evident that it would be potentially harmful to the EU if a Member State were able to change its mind again and again until negotiations go its way;

iii) In Miller the decision was taken to reach common ground that notification was irrevocable. Whilst the decision may not be binding authority on the point, politically it would be very difficult for the Government to adopt a different stance. The pressure to withdraw is exacerbated by the fact that Parliament is clearly of the view that the result of the referendum demonstrably indicates that the public will is in favour of withdrawal and to reverse course would be to unjustifiably ignore the views of the electorate.

It remains a fact that, with respect to John Kerr, Article 50 is not well drafted. There is no explicit provision for a Member State changing its mind. There is also no precedent for withdrawing from the EU. As a result, it is impossible to be definitive at this stage as to whether or not it is possible for the UK to change its mind after triggering Article 50.

In our view, rational legal analysis favours the arguments that support being able to change course. But such an approach ignores the very real political current in favour of Brexit. Those that would like to retain the option of remaining in the EU would be well advised to recognise the need for a substantial shift in public opinion before this becomes a live prospect. In a later blog, we will explain how this might come about.

Next week – Can notification under Article 50 be conditional on a “good deal”?

 

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Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger comments on changes to costs limits in Aarhus claims, the issues involved in environmental permitting for local authorities, and fire prevention plans required for an environmental permit by the EA.

 

Changes to costs limits in Aarhus claims

The rules governing costs limits in Aarhus Convention claims have been completely replaced (one of the changes made by the Civil Procedure (Amendment) Rules 2017 (SI 2017 No. 95)). This came into force on 28 February 2017. As a result, there is now significant scope for arguments about costs and funding.

The principal changes include:

  • A provision that the court may, subject to consideration of whether proceedings would be “prohibitively expensive” either vary the costs cap that a claimant or a defendant may be ordered to pay, or may remove altogether the limits on the maximum costs liability of any party in an Aarhus Convention claim;
  • A provision that a claimant who wishes to argue that their case is an Aarhus Convention claim must submit a sworn statement about their financial resources together with the claim form, which takes into account any financial support which any person has provided or is likely to provide.

Unsurprisingly, the changes remain controversial. ClientEarth, Friends of the Earth and the RSPB have already challenged the legality of these new rules. The reference to “any person” is wide enough to include crowdfunding or financial support provided by an NGO. The new rules are likely to be used by defendants to argue that the normal costs rules should be applied.

William Upton has written an article on the changes. For further information, please click here.

 

Care needed for local authorities in environmental permitting

The London Borough of Newham (“LBN”) came unstuck recently in the case of R v Recycled Materials Supplies Ltd [2017] EWCA Crim 58. In a judgment that repeatedly highlights the tortuous nature of the complex web of environmental regulation, the Court of Appeal held that LBN had no power to issue an environmental permit or to seek to impose conditions on an operator where the waste operation in question fell under the regulatory function of the Environment Agency and not LBN.

LBN only had the power, in the circumstances of this particular case, to issue an environmental permit if the waste activities on site fell within the description of a “Part B mobile plant” carrying on “a Part B activity”. In reality, what was going on at the site was a massive operation recovering waste of multiple types without distinction and was not limited to the narrow definition of a “Part B activity”. The waste activity on site did not therefore fall within the sphere of LBN’s authority and accordingly LBN could not enforce the terms of their environmental permit.

 

Wood Recyclers Association begins design of fire prevention plan template

All sites operating under an environmental permit are required to submit fire prevention plans to the Environment Agency for approval. However, guidance on the content of the plans has been extremely controversial. The Environment Agency has rejected a large number of plans on the grounds that they have not been robust enough.

The template is intended to define ‘alternative measures’ to ensure that the three overall objectives of FPP guidance are still met. These are:

  • Minimise the likelihood of a fire happening;
  • Aim for a fire to be extinguished within 4 hours;
  • Minimise the spread of fire within the site and to neighbouring sites.

There has been a long running difference in opinion between the Environment Agency and the wood waste industry on the appropriate way that fire prevention should be regulated and waste fires remain a critical area of importance for the Environment Agency. Figures show that the overall trend of waste fires has remained constant at around 250 incidents per year and more recently there have been a number of large scale protracted incidents that have caused significant disruption. The cost to the Fire & Rescue services is estimated to be £16 million per year.

A link to the Wood Recyclers Association news item can be found here

 

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