Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Laura Phillips consider the Bar Council’s Brexit Working Group paper on environmental law, the publication of revised voluntary guidelines for issuing Green Bonds, and pledges by the Mayor of London for a ‘zero-emission’ city by 2050.

 

Bar Council’s Brexit Working Group publishes paper on Environmental Law

The Bar Council’s Brexit Working Group has published a new paper on Environmental Law. Written by leading environmental law experts, the paper makes key recommendations to the Government in light of Brexit. In particular, that the Government should:

  • “Commit to long-term stability of environmental policy through creation of enforceable domestic commitments and an independent domestic enforcement mechanism, underpinned by the judiciary, to replace the effective system of independent supervision and enforcement at EU level that will no longer apply after Brexit;
  • Maintain environmental standards and consistency of environmental policy and legislation by ensuring consistency with EU environmental standards, unless objective scientific reasons exist to depart from such standards, and recognising the need to avoid negative impacts on environmental protection in future trade agreements, and
  • Agree to re-create in new treaty provisions the cross-border environmental obligations currently linking the UK and the EU27.

These recommendations come at a time when the current Government’s approach to environmental protection has become less clear, despite its Manifesto commitment to ensure “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” (see earlier Environmental Law News Update). The new Environment Secretary has already placed the Habitats Directive squarely within his sights (see last week’s Environmental Law News Update). There was very little mention of the environment in the Queen’s Speech; a passing reference to supporting international action against Climate Change, including the implementation of the Paris Agreement, and a plan to introduce a new Automated and Electric Vehicles Bill intended to promote the use of electric cars and mandate charging points at motorway services and fuel stations.

You can read the full paper here

 

Green Bond Principles develop

The International Capital Market Association (“ICMA”) has published revised voluntary guidelines for issuing Green Bonds. The ‘Green Bond Principles’ are intended to promote integrity in the Green Bond market through guidelines that recommend transparency, disclosure and reporting, for use by market participants and to drive the provision of information which will in turn inform investment.

Changes introduced in the 2017 update include:

  • Detail on objectives of the Green Bond Principles and its role in promoting the Green Bond market;
  • Stronger guidance on issuer communication of environmental strategy and management of material environmental and social risk factors;
  • Release of new Social Bond Principles in support of bonds that raise funds for projects with positive social outcomes;
  • New Sustainability Bond Guidelines published to provide guidance for bonds combining green and social projects.

The green bond market aims to enable and develop the role that debt markets can play in projects that contribute to environmental sustainability. During the last year, issuance in the green bond market has approximately doubled to $80 billion. Interestingly, China is one of the main drivers of this growth, becoming the largest source of issuance in 2016.

The latest update and relevant information can be found here.

 

Mayor of London pledges ‘zero-emission’ city by 2050

The Mayor of London, Sadiq Khan, has published his draft transport strategy and it is open for consultation until 2 October. He has pledged to create zero-emission zones in central London by 2025, with the whole of the capital following suit by 2050 (further detail here).

This follows a week of heatwaves where Mr Khan triggered London’s emergency air quality alert system (see news article here).

The transport and air quality strategies are becoming better integrated. Mr Khan’s plans for cleaning up London’s air can be found here.

The Mayor has also requested an urgent meeting with the Environment Secretary, Michael Gove to urgently discuss air quality (see news article here).

 

To keep up-to-date follow us on Twitter @6pumpcourt or contact bridgettough@6pumpcourt.co.uk to be added to the mailing list. If you have any comments or suggestions please feel free to contact us.

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan and Laura Phillips consider the penalty imposed by OFWAT on Thames Water for its failure to meet targets on reducing water leakage, the latest VLO fine, this time imposed on Tesco, for water pollution and health and safety breaches, and the appointment of a new Environment Secretary to the government.

 

Thames Water fined £8.5m for water leaks

OFWAT has fined Thames Water Utilities Ltd. the maximum available penalty of £8.55m for its failure to meet the target imposed by OFWAT for reduction in leakage from its network of water mains. The leakage equated to 180 litres of water per day for every property supplied and amounted to 26% of the water in the system. The average daily water consumption of a household is about 160 litres. The cost of the fine will not be allowed to be reflected in future prices.

OFWAT has opened an investigation into the problem. One of the causes is certainly the age of a great deal of the system inherited by the water undertakers at privatisation in 1989.

A water undertaker is strictly liable (with certain exceptions) in respect of loss or damage caused by the escape of water from its pipes – s. 209 of the Water Industry Act 1991, described by Lord Hoffmann in Transco plc v Stockport MBC [2004] 2 AC 1 as a liability “far stricter than under the rule in Rylands v Fletcher”. However much of the leakage is continuous and low-level and merely wasteful rather than injurious.

 

Tesco fined £8 million for water pollution

Tesco Stores Limited has been fined a total of £8 million for water pollution and health and safety offences after it admitted to polluting the River Irwell with 23,000 litres of petrol that escaped from a petrol station in Haslingden, East Lancashire in July 2014. The incident resulted in homes being evacuated, residents becoming ill from petrol odours and the death of 46 fish. The fine divided between the respective offences – £5 million for the health and safety offence, £3 million for the environmental offence.

The investigation, which involved multiple agencies including the Environment Agency and Lancashire County Council, found that the incident resulted from Tesco’s failure to address a known issue with part of the fuel delivery system and an inadequate alarm system and was compounded by poor emergency procedures.

The EA’s press release can be found here

 

Michael Gove is the new Environment Secretary

Michael Gove has replaced Andrea Leadsom as Environment Secretary. The appointment of the former Justice Secretary has proved controversial with Caroline Lucas, the co-leader of the Green Party, calling him “entirely unfit” for the role: he has generally voted against measures to prevent climate change (see a link to his record here) and in a previous role as Education Secretary proposed its removal from the geography national curriculum. He has recently called for the removal of European environmental regulations such as the Habitats Directive (see a news article which appeared in The Independent here). He has asserted that the directive “massively increases the cost and the regulatory burden for housing development” based on his experience in his Surrey Heath constituency.

Mr Gove will face considerable challenges, including overseeing environmental legislation and farming following Brexit and the ‘Great Repeal Bill’, and tackling air pollution.

 

To keep up-to-date follow us on Twitter @6pumpcourt or contact bridgettough@6pumpcourt.co.uk to be added to the mailing list. If you have any comments or suggestions please feel free to contact us.

Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger considers the environmental priorities of the DUP manifesto, the new Definitive Guideline on reduction of sentence for a guilty plea, and an industry Guide on waste classification published by the Environmental Services Association and the Waste Industry Group.

 

 

The DUP manifesto and the environment

Not a lot of time was spent at 6 Pump Court considering the Democratic Unionist Party’s manifesto and its priorities for the environment. However, in light of the election result, we have set out the key points. It should be noted that the words “climate change” and “environment” do not appear in the manifesto itself and its overriding focus appears to be on the economy and improving the financial importance of Northern Ireland.

Energy

  • Energy companies to place further downward pressure on household bills;
  • Establish a comprehensive new energy strategy for Northern Ireland;
  • Improved interconnection with Great Britain;
  • Develop new generation capacity;
  • Energy market stability.

Air quality

  • Support expansion at Heathrow with increased air connectivity to Northern Ireland;
  • Establish a new Air Routes Task Force and abolish Air Passenger Duty.

Brexit

  • Proportionate regulatory regime which can promote competitiveness, with legislation to suit Northern Ireland’s local needs;
  • Local input into new UK agriculture and fisheries policies which can offer sustainability and new growth opportunities;
  • Particular importance of agri-food sector to Northern Ireland economy recognised and reflected.

 

Definitive Guideline for reduction in sentence for a guilty plea in force

The Sentencing Council’s Definitive Guideline for reduction in sentence for guilty pleas applies to all cases where the first hearing took place on or after 1 June 2017.

The Guideline identifies that the following maximum levels of reduction in sentence should apply:

  • Plea indicated at the first stage of the proceedings – one-third;
  • Please indicated after the first stage of proceedings – one-quarter, with a sliding scale of reduction thereafter deceasing to one-tenth on the first day of trial.

Pleading guilty at the first appearance in the Crown Court will therefore normally only attract a discount of one-quarter. The difference in credit given for a guilty plea at the Magistrates’ Court and a guilty plea in the Crown Court, particularly for organisations with very high turnover figures, may therefore be significant.

Key for those involved in complex environmental cases is the following exception:

Where the sentencing court is satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one-third should still be made.

In considering whether this exception applies, sentencers should distinguish between cases in which it is necessary to receive advice and/or have sight of evidence in order to understand whether the defendant is in fact and law guilty of the offence(s) charged, and cases in which a defendant merely delays guilty plea(s) in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal.”

The Guideline can be found here 

 

Guide published on waste classification

The Environmental Services Association and the Waste Industry Group on Waste Classification have published a waste industry guide intended to help operators avoid common errors and misconceptions in classifying waste. The Guide lists the most common classification mistakes, explains why they are wrong and how they can be rectified.

Key topics addressed by this short Guide include:

  • The limits of using Landfill Waste Acceptance Criteria to classify a waste;
  • Assuming an EWC Code rather than analysing the waste;
  • Misunderstanding how waste containing asbestos is classified.

It comes at a time when the Environment Agency has backed away from providing clear guidance on end of waste. The beginning of the death throes of the end of waste process began some time ago with the conclusion of the excellent WRAP/Environment Agency Quality Protocol series. These industry/regulatory collaborations guarantee that so long as a specified framework process has been observed, then the final product will normally be considered end of waste.

Then in a short email dated 19 December 2016 addressed “Dear Customer”, the Environment Agency announced the closure of the Definition of Waste Panel, a mechanism set up with the sole purpose of providing prospective end of waste guidance to industry.

End of waste guidance began after the Environment Agency picked up the challenge laid down in June 2007 by the Court of Appeal in OSS. Adopting the analysis of the editors of the Environment Law Reports, the Court of Appeal described the ECJ case law on waste as “not fit for purpose”. In a coda to his judgment, Lord Justice Carnwath added: “I hope that it may be possible for DEFRA and the Agency to join forces in providing practical guidance”.

The newly published Guide can be found here

 

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Environmental Law News Update

 

In this latest Environmental Law News Update, Christopher Badger and Laura Phillips consider the environmental priorities of the Labour manifesto, the implications of a US withdrawal from the Paris Accord on Climate Change, and further details of Six Pump Court’s continuing series of environmental seminars.

 

Labour manifesto and the environment

Following on from our analysis of environmental and energy policy in the Conservative Manifesto, here’s a look the Labour Manifesto. In summary, even a quick glance reveals that climate change and environmental protection are high on the agenda for a prospective Labour government. In addition to the emphasis on green energy sources, there are explicit commitments to ‘defend and extend existing environmental protections’ (93), to renewable and green energy (see below) and to meeting the targets in the Climate Change Act and the Paris Agreement (22, 118). There is rather less detail about how these will be achieved in practice.

Energy
Labour intends to nationalise energy production and make it greener. It will do this in three stages: first by altering operator license conditions; then by creating ‘publicly owned, locally accountable energy companies and cooperatives’ to compete with private energy suppliers; and lastly by legislating to permit these companies to purchase the regional grid infrastructure (16, 20).

It commits to cheap and secure energy, primarily through the greater energy efficiency and the use of new technologies such as carbon capture and storage (21); 4 million homes would be insulated (20, 60); Homeowners would be offered interest free loans to make their homes more energy efficient and landlords will be offered both carrot (through an Energy Saving Allowance) and stick (through Landlord Energy Efficient Regulations) (21). It would introduce an emergency price cap of £1,000 per annum for a dual fuel household energy bill.

There is an explicit commitment to support renewable energy (including tidal lagoons), repeated in several places throughout the Manifesto (8, 12, 21-22) and an ambitious target for 60% of the UK’s energy to come from zero-carbon or renewables by 2030 (14).

Fracking will be banned altogether (21) but North Sea oil jobs would be protected (21). Labour would also invest in low-carbon and green technologies such as low emission vehicles (12, 27, 91).

These measures will be financed (along with Labour’s other Manifesto commitments) through increased taxation (9).

Labour supports the use of nuclear energy as a source of power and would support further nuclear projects (21); the UK would remain part of Euratom (22, 25).

Climate change and conservation
Labour explicitly commits to meeting the targets in the Climate Change Act and the Paris Agreement (22, 118). It will introduce measures to protect ‘blue belts’, for plastic bottle deposit schemes, for the protection of bees and forests and the planting of trees (94).

There is a rather vague commitment to ‘consult’ on establishing an environmental tribunal to make it easier and cheaper to challenge unlawful government decisions on the environment (air quality is explicitly mentioned as an example) (81). It is wholly unclear how this would work in practice, or what sanctions or remedies might be available.

Air quality
Labour intends to introduce a new Clean Air Act (93) and commits to retrofitting ‘thousands’ of diesel buses in areas with the most severe air quality problems (91), but there is little real detail as to how air quality would be improved.

Brexit
It should be noted that Labour explicitly commits to ensuring that there would be no weakening of current EU derived environmental protection laws as a result of Brexit (25-6). It would prioritise maintaining access to the European internal energy market in order to keep down energy costs (22).

It would actively seek to negotiate an Environmental Goods Agreement at the WTO to support British environmental technologies and services (27).

 

Withdrawing from the Paris Accord

President Trump has announced that he will be taking the US out of the Paris Accord. He hasn’t, however, specified how this will be done.

Article 28 of the Paris Accord states that at any time after three years from the date on which the agreement has entered force for a Party, that Party may withdraw from the agreement by giving written notice. Any such withdrawal takes effect one year after such notice is given.

From a practical perspective, that timescale takes the US beyond the date of the next presidential election.

In the meantime, the US will remain bound by the terms of the agreement. This includes submitting a plan every five years spelling out how the US intends to tackle climate change. Countries are also supposed to report on their progress on meeting their own set targets for cutting emissions, which for the US is currently a target of an approximate 25% reduction from 2005 levels by 2025.

Consequently, exiting the process in a manner consistent with the Paris agreement itself maintains the obligations agreed to by the US by the Obama administration. Against that irreducible standard, US domestic policy is likely to face considerable scrutiny.

 

Seminar – Flood Defence and Pollution Control: Statutory Powers and Compensation

Six Pump Court presents the second in our series of environmental and public law seminars to be held this year:

Flood Defence and Pollution Control: Statutory Powers and Compensation – Tuesday 27th June

Flood damage is an increasing threat. A variety of statutory powers are entrusted to the Environment Agency, local authorities and others under various Acts and the Environmental Permitting Regulations 2016 in respect of flood defence, flood risk management, drainage, water pollution and water quality. Difficult questions arise as to the right to any compensation and its inter-relationship with other causes of action. This seminar will consider the nature and extent of the powers available to regulators and the obligations and rights of those affected.

For more information and to book click here

Coming soon – ‘Piercing the Veil’ Incorporation and Liability for Environmental Damage: Widening the Net – Wednesday 12th July – more details to follow

 

To keep up-to-date follow us on Twitter @6pumpcourt or contact bridgettough@6pumpcourt.co.uk to be added to the mailing list. If you have any comments or suggestions please feel free to contact us