Environmental Law News Update

In this latest Environmental Law News Update, Laura Phillips, Christopher Badger and William Upton consider the environmental implications of the Conservative manifesto, the start of European Commission infringement proceedings against member states who fail to report on implementation of EU waste rules, and new UK Environmental Impact Assessment Regulations.

 

The Conservative manifesto and the environment
The Conservative Manifesto was published on 17 May 2017. With the Tories still well ahead in the polls, here are the key points on what we might expect from a Conservative government on energy and the environment:-

Energy
The focus is on cheaper (rather than greener) energy with the ambition being for the UK to have the “lowest energy costs in Europe both for householders and businesses” (p22). There will be an independent review into the Costs of Energy (we anticipate following on from the Green Paper on Industrial Strategy published in January 2017). There is a commitment to improve the energy efficiency of homes, to offer smart meters and to introduce price protection (in the forms of tariff caps) for homes and business (p60), and to the use of smart grids (p81).
Natural gas from shale is positively promoted, the logic being that it is there and that “shale is cleaner than coal”. Planning law will be reformed so that non-fracking drilling will be permitted development and an industry specific Shale Environmental Regulator will be set up (p23). There is an explicit commitment to continue to support North Sea oil and gas through to its eventual decommissioning (p21-22). There is no mention of the coal phaseout promised in November 2016.
There is support for off-shore wind power in the UK, and the door is left open for on-shore wind power in Scotland (the pledge to end any new public subsidy for onshore wind power in the 2015 manifesto has been removed). There is a reference to exploring “ways to harness Welsh national resources for the generation of power” which would include tidal power (p33). There is also a slightly ominous reference to “the wrong regulatory frameworks” over-rewarding “investors for the risks they are taking in backing a particular product” and a promise for reform, which chimes with the Home Secretary’s previous comments that the balance had swung too far away from low prices in favour of climate change policies.
There is no explicit mention of nuclear energy (we already know that Theresa May intends to withdraw from Eurotom – see link here)

Climate change and conservation
Climate change is not mentioned at all in the ‘five giant challenges’ identified at the beginning of the manifesto (pages 6-7). Whilst there is repeated rhetoric about the UK leading global action against climate change (pp 37-40) and explicit reference to the Paris Agreement, this is difficult to square with the policies promoting the use of fossil fuels and ongoing support for Heathrow expansion (p24). There is also no mention of the long-awaited Clean Growth Plan to meet the fourth and fifth carbon budgets for 2023 and 2032 or of carbon capture and storage.
There is a commitment to investing in low emission and electric vehicles (p24); electric cars are specifically identified as an area in which to promote research and development (p19).
The government’s commitment to establishing a Blue Belt of marine protection is renewed (40).

Air quality
The government’s ongoing failure to tackle air quality has recently been subject to successful challenge in the High Court, see previous news update). There is, however, only a passing reference to “take action against poor air quality in urban areas” (p25).

Brexit
The manifesto confirms that the “protections given to… the environment by EU law will continue to be available in UK law at the point at which we leave the EU” but there is no detail on what will be kept and what will go or how this procedure will be managed. A “comprehensive 25-year Environment Plan that will chart how we will improve our environment as we leave the European Union and take control over our environmental legislation” will be produced, but for now we remain very much in the dark. It appears unlikely, given what is set out above, that climate change and air quality will be a priority.

 

European Commission starts infringement proceedings for reporting failures

The European Commission has opened infringement proceedings against 14 Member States, including the UK, for their failure to report on the implementation of several EU waste rules. The proceedings opened on 17 May address missing reports on reaching targets on reuse, recycling and recovery under the Waste Framework Directive, the Waste Electrical and Electronic Equipment Directive, the Batteries Directive, the Packaging Directive, the Directive on End-of-Life Vehicles and under the Waste Shipments Regulation. The nature and type of obligations vary from one Directive to another.

It’s unlikely that any infringement case, if one were pursued, would be resolved prior to the UK leaving the EU. The most likely course of action is that the UK will be asked to comply with an extended time limit.

Transposition of the above Directives often imposes what appear to be technical burdens of business at their own cost, where the environmental purpose and justification can become lost or under-publicised. Recycling targets, however, form a key part of the Commission’s Circular Economy Package, designed to boost global competitiveness, foster sustainable economic growth and generate new jobs. In the absence of an economic incentive to pursue a recycling agenda, tensions between perceived regulatory red tape on the one hand and responsible waste reduction on the other are likely to persist.

The Commission’s announcement can be found here

 

New Environmental Impact Assessment Regulations

One of the constant sources of litigation, the EIA Regulations, have been replaced. This is in line with the UK’s obligation to implement the changes made by the EIA Directive 2014/52/EU by 16 May 2017 (and on which the government carried out consultation earlier this year). In an echo of past failures, the UK has actually missed the deadline for transport projects, and the Department for Transport (DfT) has promised these for after the general election. There is also no updated English or Welsh guidance yet on the new Regulations (unlike in Scotland). It is to be hoped that this does not add a new stumbling block to the process. The headline point is not to wait for the guidance – any new project is subject to these new rules now. There are a number of important revisions, including a need to address monitoring measures and a requirement to assess specifically the impact on human health as well as the population (see reg.4) – as a result of a long campaign to include health impact assessments in EIA. That will be an interesting challenge, in the light of the need to consider cumulative impacts, as part of the direct and indirect significant effects of the proposed development.

See:

  • The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (referred to by the explanatory memorandum as “the TCP Regulations”);
  • The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (“the IP Regulations”);
  • The Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2017;
  • The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017, and Planning Circular 1/2017.

Can ambition run backwards? Trump’s post-truth Paris threat

Posted by: Frances Lawson

As negotiators to the UNFCCC complete their meeting in Bonn ahead of November’s COP 23, Donald Trump and his administration are considering backsliding on US commitments to the Paris Agreement, effectively applying their doctrine of ‘alternative facts’ to the global climate deal.

If implemented, the US move would expose the Agreement’s legal weaknesses by exploiting the absence of binding targets for greenhouse gas (GHG) emissions or any punitive enforcement or oversight of the all-important nationally determined contributions (NDCs) of the Parties.

As this blog has previously covered, Articles 3, 4.2 and 4.3 of Paris provide for a legally binding procedural commitment on Parties to ‘prepare, communicate and maintain’ successive NDCs for five-year periods. Article 4.3 states that the NDCs ‘will represent a progression’ and reflect the Party’s ‘highest possible ambition’ while Article 4.11 authorises a Party ‘at any time’ to adjust its existing NDC ‘with a view to enhancing its level of ambition’.

The words ‘progression’ and ‘ambition’ were assumed by the negotiators to Paris (and by this blog!) to mean successive NDCs could only be ratcheted upward, termed the ‘no backsliding principle’ in the negotiations.

As a candidate, Trump pledged to ‘cancel’ the Paris Agreement. But news reports over the past week have described an on-going legal debate within the Trump administration over whether the US can avoid the legal and diplomatic fall-out involved in a full withdrawal from Paris and simply ratchet the NDC submitted to the UNFCC by the Obama administration downward.

So can the highest ambitions of a Party actually come to mean a reduction in its commitments to progress? Applying Trump’s post-truth policies to Paris’ unprotected syntax and the disturbing but unavoidable answer is, ‘yes’.

Here’s how it works. The US’s current NDC is to reduce its GHG emissions by 26 to 28 percent below 2005 levels by 2025. As this blog has previously noted, even that commitment is significantly behind many other developed country Parties, employing as it does the 2005 baseline rather than the original UNFCCC baseline of 1990, used by the UK and EU among others.

The US, like all Parties to the Paris Agreement, must always have an NDC in place as a legally binding requirement. But the word ‘maintain’ applies to NDCs in general, not to a particular NDC. So an NDC can be changed, exactly as negotiators wished.

That flexibility of ratcheting up NDCs is in fact the only hope Paris has of delivering the GHG reductions required to meet its goal of ‘holding the increase in the global average temperature to well below 2C above pre-industrial levels’. (The sum of all NDCs so far agreed produce GHG emission reductions that the UNFCCC projects will warm the planet by at least 2.7C by the end of the century.)

Most importantly, however, actually meeting the NDC target is not a legally binding commitment on Parties to the Agreement.

Article 3 obligates Parties to ‘undertake and communicate ambitious efforts’ […] ‘with a view to achieving the purposes of this Agreement’. Referring to NDCs, Article 4.2 obligates Parties to ‘pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.’

The precatory wording of ‘with a view to’ and ‘with the aim of’ creates no legally binding obligation. Rather, Parties are legally bound to have their NDCs accounted for through an ‘enhanced transparency framework’ (Article 13.1) that includes assessment by an expert committee that is ‘non-adversarial and non-punitive’ (Article 15.2).

All of which means that the ‘highest ambition’ imperative contained in the Agreement has no legal force and so the Trump administration is free to reduce the level of commitment in the US NDC, as Article 4.3 puts it, ‘in the light of different national circumstances.’

France’s Laurence Tubiana, one of the architects of the Paris Agreement, confirmed the legality of the US NDC backsliding in a tweet: ‘Of course US government CAN legally downsize its contribution but SHOULD Not.’

That position is confirmed by a brief posted by US State Department Deputy Legal Adviser, Susan Biniaz, and Professor Daniel Bodansky, of Arizona State University.

However, the legality of such a move is not entirely uncontested. Jonathan Church, a British lawyer for London-based NGO Client Earth, argues the text of Paris does not allow for downsizing, when read according to the Vienna Convention’s demand that treaties be interpreted ‘in the light of their object and purpose’.

Church makes the point that backsliding is nowhere explicitly permitted, but nor explicitly prohibited, in the Agreement’s text. Instead, he argues, on a ‘true reading’ of Article 4.11, ‘some backsliding can sometimes be permitted’, ‘provided that such adjustments are being made “with a view to” enhancing ambition’, making the analogy to a football team that pass the ball backwards ‘with a view’ to scoring a goal at the other end of the pitch.

A US ‘own goal’, as Church puts it, of downgrading its NDC in order to generate jobs in the coal industry or signal its skepticism over climate change, would, in his analysis, be a breach of the Paris Agreement.

Church may be right that a drastic reduction of America’s NDC by the Trump administration would constitute a breach of treaty for the purposes of Article 31 of the Vienna Convention.

But for a White House already reeling from much graver violations of the rule of law committed in its own jurisdiction, the censure of the international system would likely appear somewhat trifling. Rather, it is perhaps less the legal outcome of a downsizing of the US commitment to Paris that would inflict grave damage on the Agreement as the exposure of the weak legal architecture upon which the Paris Agreement rests.

After all, if the US can force the Paris ratchet to go backwards, it could set a dangerous trend for Parties to do the same, threatening the integrity of the Agreement as a whole.

This piece has been co-authored by Hugh Macleod.

 

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Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger considers Environment Agency plans to update the OPRA scheme, a new chemical regulation report, and the European Commission’s new Roadmap on pharmaceutical regulation.

 

Environment Agency to update OPRA scheme

The Environment Agency has announced that it is replacing the Operator Risk Appraisal (OPRA) scheme for sites operating under the Environmental Permitting Regulations. It intends to replace the A-F compliance bands with four descriptive bands: Exemplary, Expected, Improvement Needed and Significant Improvement Needed. As a result, it has launched an informal consultation, with a formal consultation to follow in July.

The consultation states that the Environment Agency wishes to move to a performance based approach that would allow them “to take into account likelihood (operator responsiveness and attitude) as well as hazard and evolving market or incentive based regulatory approaches”.

This is a move towards including wider benchmarks under the heading “performance” with the intention of identifying at an early stage increasing risk. The informal consultation identifies proposed criteria for each descriptive band under a number of separate categories, although the weight to be given to any individual criteria, category or how a weighting exercise will be carried out is as yet unclear.

The consequences of poor performance are set out in the introduction:

if an operator displays unresponsive, obstructive, abusive or hostile behaviour, such as poor complaint handling, unsatisfactory community engagement or unwillingness to comply, then this would lead to the site being in one of the two Improvement Needed bands. A site in an improvement band could expect to be the focus of our regulatory effort; in many cases we will take enforcement or remediation action to reduce unacceptable risks and as a consequence the operator will pay increased fees.

The informal consultation can be found here

 

Environmental Audit Committee publishes chemical regulation report

On 29 April 2017 the Environmental Audit Committee published a report into the future of chemicals regulation after the EU Referendum. The key findings are:

  • The chemicals regulation framework established through REACH would be difficult to transpose directly into UK law;
  • Companies face significant uncertainty over the validity of the current REACH registrations after the UK leaves the EU: the Government must clarify the position on the future of the regulatory framework as a matter of urgency;
  • In deciding the future of the UK’s relationship with the EU’s single market for chemicals, the Government should take a pragmatic approach. The most important element of REACH, which the Government should seek to remain involved in as a minimum, is the registration process for chemicals;
  • Establishing a fully stand-alone system of chemicals regulation for the UK is likely to be expensive for both the taxpayer and for industry;
  • The experiences of the US as it introduces an improved system of chemicals regulation could be useful for the Government when planning the UK’s approach.

The findings of the report reflect many of the concerns about environmental regulation following Brexit. Uncertainty caused by a lack of clear direction about the future of the environmental regulatory framework will prove costly to business and the resultant ‘legislative gaps’ risk environmental protection as well as fuelling legal disputes.

The report can be found here

 

European Commission Roadmap on pharmaceutical regulation

Pharmaceutical regulation is back on the agenda for the European Commission. Risks to the environment can result from the manufacture, use and disposal of active pharmaceutical ingredients, but this is one area where it can be argued that there has been a lack of regulation. Expect a public consultation later this year.

The short Roadmap can be found here

 

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Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and William Upton consider a new waste crime report published by the Environmental Services Association, a ruling by the European Court of Justice which found the UK guilty of a breach of clean water law, and an interpretative communication issued by the European Commission on access to justice in environmental matters.

 

Waste crime report published

On 2 May the trade association for the UK’s Resource & Waste Management Industry, the Environmental Services Association, and the Environmental Services Association Education Trust published ‘Rethinking Waste Crime’. This report is a follow up to its influential report ‘Waste crime: Tackling Britain’s dirty secret’ published in March 2014.

The report identifies the extent to which waste crime remains an enormously serious issue. It states that whilst awareness of waste crime has increased, the regulators’ ability to combat it has not kept pace and the increased gains from illegal activity are attracting criminals. It is estimated that the annual economic impact of waste crime in England in 2015 was at least £604 million (a figure that cannot include unknown impacts such as undiscovered illegal sites or fraud beyond landfill tax evasion).

The authors of the report, the environmental consultancy Eunomia, make the point that whilst light-touch approach might appear to be business-friendly, the irony is that this is actually harming the interests of legitimate waste businesses while giving criminals an easy ride.

The report stresses that weak regulation is a major cause of waste crime, and organises its recommendations into the following themes:

  • Modernising the regulatory regime;
  • Improving enforcement efforts;
  • Developing secure sources of environment funding; and
  • Improving cross-regulatory cooperation and raising awareness.

In total, 14 recommendations are made. These include reforming the waste exemption regime, where the report argues that too few checks and balances exist to ensure that the activities being undertaken are actually low risk, enforcing failures in the duty of care and banning waste criminals from re-entering the waste sector.

A link to the report can be found here

 

European Court finds UK guilty of breaching clean water law

The UK has been found to be in breach of EU law (Case C‑502/15) about the treatment of sewage and urban waste water discharged in a number of areas. This is, in effect, a series of 13 declarations – ranging from the failure to subject the urban waste water in the Gibraltar agglomeration to any treatment by 2005 to requiring more stringent treatment for the discharges from Tiverton or Chelmsford into sensitive areas. One breach that gained particular attention was the one in Carmarthenshire. Overflow pipes are used to help stop flooding at the Burry Inlet near Llanelli. However, the ECJ ruled that this broke clean water laws in a special conservation area. The area includes salt marshes and is a habitat for thousands of wild birds during the winter. It should be noted that back in September 2009, the National Assembly for Wales was presented with a petition calling for a public inquiry into mass cockle mortalities at the Burry Inlet. A further report was published by the Petitions Committee for the National Assembly for Wales in July 2012.

The UK wasn’t fined but was ordered to pay legal costs. Part of the complaint is the amount of time that not only has been taken so far, but also how much more time was proposed to be taken to resolve the issue. The UK had argued that improvements made would mean that it could comply with EU clean water laws by 2020. However, the European Court found that the UK had acted too late and had been failing in its obligations since 2005 – not the first time that the necessary investment to improve environmental impact has taken too long.

 

European Commission Notice on Access to Justice in Environmental Matters

The European Commission has added its authoritative comments to the debate about access to justice in the light of the Aarhus Convention. As keen readers will remember, the UK changed its court rules on Aarhus Convention Cases (CPR 45.41 etc), and several NGOs have already been given permission to proceed by the Planning Court to challenge this by way of judicial review.

We now have what the Commission calls an “Interpretative Communication” which sets out in one place all the substantial existing CJEU case-law, on access to justice in environmental matters, and the inferences that they say should be drawn from them. The Communication intends this document to be a reliable source for national administrations responsible for ensuring the correct application of EU environmental law, national courts and the public. The Commission accepts that there is still no appetite in the EU Council for any specific legal instrument dedicated to access to justice. It has therefore tried to give a heavy nudge to action being taken in the national courts by giving “a clear idea of what is necessary at national level in order to comply with these requirements” (see §11).

The Communication addresses the whole range of relevant issues:

  • The legal context: national courts and EU environmental law;
  • Public interest, obligations and rights;
  • Legal standing;
  • Scope of judicial review;
  • Effective remedies;
  • Costs;
  • Time limits, timeliness and efficiency of procedures;
  • Practical information to be provided to the public.

A link to the Communication can be found here 

 

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Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger considers the consequences of failure to comply with a Remediation Order, the rejection of DEFRA’s application to delay consulting on its revised air quality plan and a plea to extend the EU emissions trading scheme for the UK after Brexit.

 

Suspended prison sentence for failing to comply with a Remediation Order

David Crossley Cooke was sentenced to 9-months imprisonment, suspended for 12 months, for his part in failing to comply with a Remediation Order imposed by Oxford Crown Court back in September 2015. The subject of the Order, a land owning company controlled by David Crossley Cooke called Tapecrown Ltd, was ordered to pay a fine and costs totalling £49,000 for contempt of court while Mahomed Farouk Ismail, the sole director of the company on Companies House register but in reality the company’s accountant with no managerial role, was also fined and ordered to pay costs.

The company had not only failed to clear waste from its site at Faringdon Business Park, Chowle, in compliance with the Remediation Order but had also provided false waste transfer notes as part of an effort to dupe the Environment Agency and the Court into believing that waste had been taken to an appropriately licensed facility.

Regulation 44 of the Environmental Permitting (England and Wales) Regulations 2010 (the power to impose a Remediation Order) has no provision for what should happen to the recipient (or its controlling mind) if the Order is not complied with. In a case where waste is left on land in breach of the Remediation Order, it would be open to the Environment Agency to bring further criminal proceedings or alternatively to pursue contempt proceedings for the breach. In this case, the Environment Agency chose to pursue contempt.

A further interesting factor was that the Court directed a third party company to clear the waste that remained on site in breach of the Remediation Order, rather than relying on Tapecrown Ltd. The costs of the clearance are then to be recharged back to Tapecrown Ltd. Failure to pay the costs, as assessed by the Court, are likely to be another breach of a court order and result in the bill being enforceable as a civil debt.

 

ClientEarth wins again on air quality

DEFRA must start consulting on its revised air quality plan within the next 12 days after the High Court rejected its application to defer publication of the draft and final documents by six weeks on the grounds that it was a “significant threat” to public health.

Mr Justice Garnham stated that “purdah” in the run up to a general election was “not a trump card to be deployed at will”. Cabinet Office guidance allows for consultations to be published during purdah in exceptional circumstances such as public health emergencies. The Government had attempted to use the fact of the general election as a justification for the delay, arguing that publication of the draft would be seen as controversial, would breach civil service neutrality and there was a risk that the draft plan could be labelled a Tory plan.

The government’s own figures showed that nitrogen dioxide pollution, primarily from diesel traffic, is linked to the premature death of 23,500 people a year in the UK, more than 64 deaths each day. The Judge held that immediate publication was “essential”.

 

Plea to extend the EU ETS scheme

The International Emissions Trading Association (IETA) has written a letter to the Government requesting that the UK should continue to participate in the EU emissions trading scheme until at least 2020.

Many companies, particularly those in the power sector, buy up to two or three years of allowances in advance in order to hedge their compliance costs. There is a significant risk to business, as well as considerable uncertainty, if the UK were to abruptly exit the EU ETS before phase 3 ends in 2020. The IETA has warned that there is not enough time to establish parallel arrangements in the UK.

Brexit potentially provides a significant opportunity to reassess and revisit huge swathes of environmental policy and law. However, 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 environmental regulation. The importance of trying to ensure, so far as possible, medium-term stability and confidence in the environmental sector through the avoidance of legislative gaps and uncertainties in environmental protection is becoming increasingly self-evident.

 

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