‘Utterly unprecedented’: A brief guide to America’s potentially game-changing climate case

Posted by: Frances Lawson

Their lawyers fought it every step of the way, but now the US President, Secretary of State, Defence Secretary and nine federal agencies, including the Environmental Protection Agency, will have to answer in court for the simple but far-reaching legal question posed by a group of young people from Oregon: ‘Do we have a right to life in a sustainable climate?’

Kelsey Cascadia Rose Juliana, who gives her name to the case, is joined by 20 other individual plaintiffs, all aged 19 or younger, who filed their lawsuit in the federal district court for the District of Oregon alleging the defendants had known for decades of the dangers of carbon dioxide pollution and had nonetheless taken actions that increased emissions.

“Defendants also knew the harmful impacts of their actions would significantly endanger Plaintiffs, with the damage persisting for millennia,” stated the complaint. “Despite this knowledge, Defendants continued their policies and practices of allowing the exploitation of fossil fuels.”

The complaint seeks not only declaratory relief against the US government, but also the securing by the court of what it states are the plaintiffs’ “fundamental rights under the Constitution” to a “habitable climate system”. This, it argues, requires the defendants to “swiftly phase-down CO2 emissions aimed at atmospheric CO2 concentrations that are no more than 350 ppm by 2100” and to, “develop a national plan to restore Earth’s energy balance, and implement that national plan so as to stabilise the climate system.”

Filed in August 2015, the plaintiffs are joined by the non-profit organisation Earth Guardian and a plaintiff identified as ‘Future Generations’, which is represented by James Hansen, a climate scientist and former director of the NASA Goddard Institute for Space Studies, who also submitted a declaration in support of the complaint, and is the grandfather of one of the youngsters.

Dismissed by the Attorney General’s office as an “unlawful exercise of [the court’s] jurisdiction” based on “utterly unprecedented legal theories” (see Petition here), and challenged by interventions from the fossil fuel industry [see Answer here] seeking to undermine the factual basis of the claim, the case has nevertheless survived and the trial is set to begin on 5th February 2018.

Below are outlines of the four key heads of claim asserted by the Plaintiffs, and the responses thus far of the defendants and the court:

A violation of the due process clause of the Fifth Amendment?

The plaintiffs allege that the “nation’s climate system” is critical to their Constitutional rights to life, liberty, and property, and that the defendants have violated their substantive due process rights, as set out in the Fifth Amendment, by allowing fossil fuel production, consumption, and combustion at “dangerous levels.” They argue that, as set out in the Preamble of the Constitution, these rights belong to present generations as well to “Posterity” (future generations). In their June 2016 petition to dismiss, the government’s lawyers argued for the “consistent and long-standing refusal of courts to accept a due process right to environmental quality”.

However, in November 2016 the Oregon Federal Court determined the plaintiffs had adequately alleged a due process claim. The court said the plaintiffs had asserted a fundamental right “to a climate system capable of sustaining human life” and that the plaintiffs’ allegations regarding the defendants’ role in creating the climate crisis, the defendants’ knowledge of the consequences of their actions, and the defendants’ deliberate indifference in failing to act to prevent the harm were sufficient to state a “danger-creation” due process claim. In March 2017, the federal defendants again sought review of the legal question of whether plaintiffs had adequately alleged “invasion of a legally protected and judicially-cognizable interest in maintaining a climate system capable of sustaining human life”.

A violation of equal protection principles?

The plaintiffs assert that the defendants have violated the equal protection principles of the Fourteenth Amendment, embedded in the Due Process Clause of the Fifth Amendment. “The affirmative aggregate acts of Defendants in the areas of fossil fuel production and consumption have caused and are causing irreversible climate change. As a result, the harm caused by the Defendants has denied the Plaintiffs the same protection of fundamental rights afforded to prior and present generations of adult citizens.” The US contended that the plaintiffs lacked standing because they had not alleged a particularised harm that was traceable to the defendants’ actions. The US also said the alleged injuries were not redressable and that the plaintiffs’ claims raised separation of powers issues. The US also argued that Future Generations had alleged no injury in fact.

The court found that the plaintiffs had established that action or inaction contributing to climate change had injured the plaintiffs in “a concrete and personal way” and that the plaintiffs “differentiated the impacts by alleging greater harm to youth and future generations.” With respect to redressability, the judge said that it could not say, “without the record being developed, that it is speculation to posit that a court order to undertake regulation of greenhouse gas emissions to protect the public health will not effectively redress the alleged resulting harm.”

A violation of the Ninth Amendment?

The plaintiffs further contend that, “among the implicit liberties protected from government intrusion by the Ninth Amendment is the right to be sustained by our country’s vital natural systems, including our climate system.” The government’s initial response did not challenge the assertion on the Ninth Amendment directly but rather sought to hold that the action was a non-justiciable political question, essentially one of decisions over energy policy and therefore the exclusive purview of the Executive. The Oregon court denied such a motion to dismiss, holding that the action asked the court to determine whether the defendants had violated the plaintiffs’ constitutional rights, a question “squarely within the purview of the judiciary.” In a later filing, the government again challenged whether the plaintiffs had a “constitutionally-protected fundamental life, liberty, or property interest in a ‘climate system’ with a particular atmospheric level of CO2” that federal agencies had a duty to protect even if taking action would contravene existing statutes and regulations.

The judge said that the court would be capable of granting equitable relief that would not “micro manage” federal agencies or make policy judgments in the event the plaintiffs prevailed. The magistrate “emphatically rejected” any contention that the topic of climate change was “formed and determined by political values and is thus a non-justiciable political question” and said that climate change was “quintessentially a subject of scientific study and methodology, not solely political debate” and that courts were “particularly well-suited for the resolution of factual and expert scientific disputes.”

A breach of the public trust doctrine?

The plaintiffs also allege that the defendants have failed to fulfill their obligations under the public trust doctrine, rights, they argued, “that are secured by the Ninth Amendment and embodied in the reserved powers doctrines of the Tenth Amendment and the Vesting, Nobility, and Posterity Clauses of the Constitution. These rights protect the rights of present and future generations to those essential natural resources that are of public concern to the citizens of our nation. These vital natural resources include at least the air (atmosphere), water, seas, the shores of the sea, and wildlife. The overarching public trust resource is our country’s life-sustaining climate system, which encompasses our atmosphere, waters, oceans, and biosphere. Defendants must take affirmative steps to protect those trust resources.”

The US argued that previous case law “found no support for the assertion that the public trust doctrine or claims based on it arise under the Constitution or laws of the United States”, arguing that claims over public trust doctrine lawsuits arise under state law only. The court rejected this argument and the argument that federal environmental statutes displaced public trust claims, indicating that the defendants were relying on an overly expansive reading of Supreme Court precedent to narrow the scope of the federal public trust obligations.

The court was also not persuaded that plaintiffs lacked a cause of action to enforce public trust obligations, concluding that the public trust claims were substantive due process claims and that the Fifth Amendment provided a right of action. The court also found it was not necessary to determine whether the atmosphere was a public trust asset because the plaintiffs had also alleged the claim in connection with the territorial sea, to which the Supreme Court had said “time and again” that the public trust doctrine applies.

An error in fact?

In January 2016, the court allowed the National Association of Manufacturers (NAM), the American Fuel & Petrochemical Manufacturers (AFPM), and the American Petroleum Institute (API) to intervene as of right in the lawsuit. The court found that NAM, AFPM, and API had a “significantly protectable interest” because the relief sought by the plaintiffs would “change the very nature” of their business. The court was not persuaded by the plaintiffs’ contention that the government was “essentially pro-fossil fuel industry” and would adequately represent the interests of NAM, AFPM, and API. In December 2016, the intervenor-defendants filed their answer, denying most of the complaint’s factual allegations, including those related to climate change impacts, on the ground that the intervenors lacked sufficient information to admit or deny them.

By contrast, in January 2017, the federal defendants filed an answer including admissions regarding factual allegations of climate change’s impacts, but denying that the defendants had caused climate change or specific climate change impacts such as increased temperatures, drought conditions, warmer water temperatures, rising sea levels, and ocean acidification. The judge indicated that the federal defendants’ significant admissions regarding the threats posed by human-induced climate change had, “if anything, … enhanced” the plaintiffs’ due process claim and that any appeal would be premature because the taking of evidence was necessary to “flesh out… critical issues.”

In June 2017 the court granted motions by the three trade group intervenors to withdraw from the lawsuit. The magistrate said the intervenors, “no doubt have thoroughly studied the issue at the core of this case and are in a position to tender their own scientific evidence regarding climate change if they desire to challenge Plaintiffs’ evidence or the admissions of the United States”, but noted that the intervenors had chosen to withdraw rather than take the opportunity to “put the Plaintiffs to their proof at trial.”

Whilst it is true that politically, the US often drags its heels in the climate change arena, and, as at present, can be positively obstructive of global efforts to address the issue, legally, with this litigation, the US is showing itself to be ahead of the game. Should the case succeed, it is likely to be a game-changer in climate change law, and to herald a flurry of similar litigation elsewhere. One to watch.

This article was produced in collaboration with Hugh Mcleod.

You can keep up-to-date with this Climate Change blog by following @6pumpcourt on Twitter

The “Great Repeal Bill” and environmental law

Posted by: Charles Morgan

The European Union (Withdrawal) Bill was introduced to the House of Commons on 13 July. Its substantive provisions occupy 13 pages, with a further 47 pages of schedules (much of the latter being devoted to devolution issues). The accompanying Explanatory Notes, despite describing themselves as “not, and not intended to be, a comprehensive description of the Bill”, are nevertheless of roughly equal total length.

The overall thrust of the Bill is relatively simple. Clause 1 reads: “The European Communities Act 1972 is repealed on exit day.” Sic transit gloria unitatis. The rest of the Bill adopts the anticipated course of a saving provision in clause 2 for EU-derived domestic legislation in effect at exit day, the incorporation by clause 3 of direct EU legislation operative at exit day, at clause 4 a saving provision in relation to direct rights under Treaties and then further provision concerning the future interpretation and application of EU law in domestic courts. By this method a body of ‘retained EU law’ is created.

The most controversial part of the Bill is in clauses 7 onwards under the heading “Main powers in connection with withdrawal”. Provision in one form or another for ‘tidying up the loose ends’ (grossly to understate the task) is essential, however a great deal of constitutional debate is anticipated from the proposed method of ‘Henry VIII’ clauses empowering Ministers in very broad terms to amend primary legislation by statutory instrument for the purposes of dealing with deficiencies arising from withdrawal, complying with international obligations and implementing the withdrawal agreement. It is thought that up to 1000 such instruments may be needed. The width of ministerial power is reined in to some extent by the terms of associated schedules imposing affirmative resolution procedure upon the more sweeping exercises of power permitted by the provisions.

There is little doubt that ‘the devil will be in the detail’ of the resulting subordinate legislation. The Bill itself is addressing Brexit at a very high level of abstraction. Neither any reference to any specific EU environmental measure nor indeed the word ‘environment’ is to be found in it. Interestingly, the Explanatory Notes do choose such an item of legislation as an example of “Possible uses of the power to correct problems arising from withdrawal”. In paragraph 25 of the Notes, references in the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 to “other EEA states” are identified as in need of correction by deleting the word “other”. Who would have thought it? The reader might doubt that this is the most egregious example of the potential difficulties.

One consolation for practitioners and exponents of environmental law is that a great deal of EU environmental control has originated in Directives which have been implemented by domestic secondary legislation in terms which can continue to operate effectively in a seamless way. Further, that legislation, at any rate in some areas, has been substantively implemented in practice by improvement of processes and infrastructure in a manner which is capable of enduring if they are properly operated and managed. The real future battle is likely to be over the extent to which continued compliance in those areas, and the attainment of compliance in areas where it has not yet achieved, will be effectively enforced in the absence of the continuing overarching scrutiny of the European Commission. That body has during the UK’s membership found the latter’s environmental regulation to be significantly wanting in a number of respects, including recently in relation to sewer overflows and, notoriously, air quality. Such matters are unlikely to be pursued domestically by the Government with greater fervour post-Brexit than they were pre-Brexit or indeed pre-Brentry.

 

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 and Charles Morgan consider the European Union (Withdrawal) Bill, the government’s position paper on nuclear negotiations following withdrawal from Euratom, and the failure of a bid to judicially review a marine licence grant in respect of development works at Brighton marina.

 

“Great Repeal Bill” is introduced

The European Union (Withdrawal) Bill was introduced to the House of Commons on 13 July. Its substantive provisions occupy 13 pages, with a further 47 pages of schedules (much of the latter being devoted to devolution issues). The accompanying Explanatory Notes, despite describing themselves as “not, and not intended to be, a comprehensive description of the Bill”, are nevertheless of roughly equal total length.

The overall thrust of the Bill is relatively simple. Clause 1 reads: “The European Communities Act 1972 is repealed on exit day.” Sic transit gloria unitatis. The rest of the Bill adopts the anticipated course of a saving provision in clause 2 for EU-derived domestic legislation in effect at exit day, the incorporation by clause 3 of direct EU legislation operative at exit day, at clause 4 a saving provision in relation to direct rights under Treaties and then further provision concerning the future interpretation and application of EU law in domestic courts. By this method a body of ‘retained EU law’ is created.

The most controversial part of the Bill is contained from clause 7 onwards under the heading “Main powers in connection with withdrawal”. Provision in one form or another for ‘tidying up the loose ends’ (grossly to understate the task) is essential, however a great deal of constitutional debate is anticipated from the proposed method of ‘Henry VIII’ clauses empowering Ministers in very broad terms to amend primary legislation by statutory instrument for the purposes of dealing with deficiencies arising from withdrawal, complying with international obligations and implementing the withdrawal agreement. It is thought that up to 1000 such instruments may be needed. The width of ministerial power is reined in to some extent by the terms of associated schedules imposing affirmative resolution procedure upon the more sweeping exercises of power permitted by the provisions.

There is little doubt that ‘the devil will be in the detail’ of the resulting subordinate legislation. The Bill itself is addressing Brexit at a very high level of abstraction. Neither any reference to any specific EU environmental measure nor indeed the word ‘environment’ is to be found in it. Interestingly, the Explanatory Notes do choose such an item of legislation as an example of “Possible uses of the power to correct problems arising from withdrawal”. In paragraph 25 of the Notes, references in the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 to “other EEA states” are identified as in need of correction by deleting the word “other”. Who would have thought it? The reader might doubt that this is the most egregious example of the potential difficulties.

One consolation for practitioners and exponents of environmental law is that a great deal of EU environmental control has originated in Directives which have been implemented by domestic secondary legislation in terms which can continue to operate effectively in a seamless way. Further, that legislation, at any rate in some areas, has been substantively implemented in practice by improvement of processes and infrastructure in a manner which is capable of enduring if they are properly operated and managed. The real future battle is likely to be over the extent to which continued compliance in those areas, and the attainment of compliance in areas where it has not yet achieved, will be effectively enforced in the absence of the continuing overarching scrutiny of the European Commission. That body has during the UK’s membership found the latter’s environmental regulation to be significantly wanting in a number of respects, including recently in relation to sewer overflows and, notoriously, air quality. Such matters are unlikely to be pursued domestically by the Government with greater fervour post-Brexit than they were pre-Brexit or indeed pre-Brentry.

 

Government publishes position paper on nuclear negotiations

The Department for Exiting the European Union has published a position paper on the UK’s stance in Brexit negotiations following its withdrawal from Euratom. The paper states that the UK proposes to work with the Euratom Community according to the following high-level principles:

  • Ensuring a smooth transition to a UK nuclear safeguards regime with no interruption in safeguards arrangements;
  • Providing certainty and clarity to industry and others wherever possible;
  • Collaborating on nuclear research and development in order to maximise the benefit of shared expertise and resources;
  • Minimising barriers to civil nuclear trade for industry in the UK, Euratom and third countries;
  • Ensuring mobility of skilled nuclear workers and researchers; and
  • Collaborating on areas of wider interest, including regulatory cooperation and emergency preparedness.

Initial discussions in negotiations will focus on nuclear safety arrangements and provision of legal certainty on immediate issues related to nuclear material in both the UK and Euratom. The latter includes ownership of special fissile material, the validity of existing contracts for the supply of nuclear material and arrangements for spent fuel and radioactive waste.

It is unclear to what extent this position paper has been drawn up following initial discussions with representatives of the EU. However, it is clear that the UK will need a close future relationship with Euratom and its members. Although this is recognised in repeated references to “strong mutual interest”, there is nothing in the wording of the position paper that implies that the UK proposals have yet to be discussed in any detail. If so, this only serves to highlight the complexity of the on-going negotiations and the risk of significant impact felt by the UK post Brexit.

The position paper can be found here

 

Judicial review of marine licence grant fails

A bid to judicially review the decision of the Marine Management Organisation to grant a marine licence in respect of development works at Brighton marina has failed.

In Powell v Marine Management Organisation [2017] EWHC 1491 it was submitted that the Marine Management Organisation had been obliged to consider whether the proposed works would constitute an actionable interference with public rights of navigation and that if there was such an interference, the Marine Management Organisation was not empowered to grant a licence.

Unfortunately for the Claimant, the Court held that this was a fundamental misunderstanding of the Marine and Coastal Act 2009. The Marine Management Organisation had to have regard to the need to prevent interference with legitimate uses of the sea, not specifically to public rights of navigation. Furthermore, it was for the decision maker to decide how much weight be given to any particular consideration as part of its decision-making process, even if the decision maker was obliged to take a particular subject into account as part of that process.

Parliament’s current intention is to try to streamline marine licensing, in order to create a simple licensing and proportionate licensing system such that only activities that posed a significant risk to other legitimate uses of the sea would be subject to regulation. The Claimant’s arguments flew in the face of this intention, identifying as they did a very narrow ground within the over-arching topic ‘use of the sea’ which it argued should dictate the outcome of the entire decision-making process.

Please note that next week the Environmental Law News Update will be published on Tuesday, instead of the usual Monday.

 

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 and Charles Morgan consider the recent fine imposed on Yorkshire Water for sewage pollution, an Environment Agency report into the water and sewage performance of companies, and the OFWAT consultation on the 2019 water industry price review.

 

Yorkshire Water fined £600,000

Yorkshire Water have been fined £600,000 for polluting a Staithes watercourse with sewage that had leaked out of a poorly-maintained storage tank.

The sludge storage tank was rusty and had holes in, leading to sludge escaping into a yard before making its way into a small ditch below the sewage works and into the Dales Beck. The sludge was not immediately cleaned up from the yard because the company believed that the sludge was contained on site and would be re-circulated back into the treatment process. The fact that the company’s own site manual stated that the site drainage was not sealed was not picked up by the company.

To compound matters, the company failed to respond in August to a request from the EA for a plan for how it was going to clean up and was still cleaning sewage sludge from the water three months after the incident.

The Judge found that the company had been reckless, rather than negligent. The court was referred to a significant impact, including dead fish and poor water quality, implying that the EA at least suggested that this was a category 2 incident.

In the event that this was a sentence for a reckless category 2 offence, the fine of £600,000 actually appears extremely low. Yorkshire Water’s turnover for the year ending 31 March 2017 was approximately £1 billion, with an operating profit before exceptional items and tax of £317 million (although the company actually made a loss for the financial year). In contrast, Thames Water were fined £9 million and £8 million in respect of two reckless category 2 offences (part of a larger total fine of £20 million imposed in March of this year, see previous news update here.

A link to the EA’s press release can be found here.

 

EA report on water and sewerage companies’ performance published

The EA published its most recent report on the environmental performance of the 9 water and sewerage companies operating wholly or mainly in England on 12 July.

Key points that were highlighted include:

  • There was a slight reduction in the number of serious pollution incidents (categories 1 and 2) to 57 compared to 59 in 2015, 61 in 2014 and 88 in 2013;
  • There was a rise in the most serious category 1 incidents to 9, all associated with sewerage, after 2 record low years when there were only 4 per year;
  • There was an increase in the total number of pollution incidents ranked category 1 to 3 at 1902 compared to 1742 in 2015, the first rise in incidents since 2012.

All water companies have been asked to review and update their pollution incident reduction action plans.

Unsurprisingly, fines received by water companies increased from £2,494,500 in 2015 to £6,560,000 in 2016, yet the number of prosecutions only increased from 9 to 10. The number of formal cautions dropped from 25 in 2015 to 11 in 2016 and the number of Enforcement Undertakings increased from 0 in 2015 to 4 in 2016. This included £375,000 paid by Northumbrian Water as part of an Enforcement Undertaking offered for pollution from a pumping station in 2015 and 2016.

The EA has published these reports since 2011 and ranks the companies using a star rating system. United Utilities and Wessex Water both received 4 stars, indicating that the EA considers them ‘Industry Leading’. Northumbrian Water, South West Water and Thames Water each received 2 stars, indicating that the EA considers all 3 ‘Require Improvement’.

The full report can be found here

 

OFWAT consult on 2019 water industry price review

The Water Services Regulation Authority (aka OFWAT) has published a 282 page consultation document (‘Delivering Water 2020‘) on the methodology which it proposes to adopt in 2019 for the sixth quinquennial price review process since the privatisation of the water industry in 1989 (‘PR19’). The process will fix prices for water and sewerage services from 2020 – 2025. It focuses on four key themes:

  • great customer service (sic)
  • resilience
  • affordable bills
  • innovation

To use OFWAT’s own choice of adjective and a Biblical cue, the greatest of these is ‘resilience’. This word and its derivatives occur precisely 300 times in the document, prompted by OFWAT’s ‘primary duty’ under section 22 of the Water Act 2014 (amending section 2 of the Water Industry Act 1991) to further the ‘resilience objective’ as there defined i.e.:

(a) to secure the long-term resilience of water undertakers’ supply systems and sewerage undertakers’ sewerage systems as regards environmental pressures, population growth and changes in consumer behaviour, and

(b) to secure that undertakers take steps for the purpose of enabling them to meet, in the long term, the need for the supply of water and the provision of sewerage services to consumers.

On this score OFWAT proposes ‘to hold companies to account’ in a manner which goes beyond simple compliance with their own statutory obligations.

Another new dynamic is the entry into the retail business market on 1 April 2017 of water supply licensees and sewerage licensees licensed under Chapter 1 of Part 1 of the Water Act 2014. To date, OFWAT has granted 25 Water Supply and/or Sewerage Licences (‘WSSL’) under this new régime, including those to companies owned by some of the undertakers previously appointed under the Water Industry Act 1991. These licensees are not subject to individual price control by OFWAT (which grants licences as agent of the Secretary of State) but their existence will inform the methodology of PR19 in some respects. In particular OFWAT is consulting upon what form of price regulation should apply to those undertakers which have not exited the business retail market and may thus be in competition with licensees.

The full document can be found here

Environmental Law News Update

In this latest Environmental Law News Update, Christopher BadgerWilliam Upton and Nicholas Ostrowski consider the most recent attempt by ClientEarth to force the Government to review the consultation process for the National Air Quality Plan, the most recent authority on claims against the Environment Agency where flood defence work has been inadequate, and an updated list of penalties imposed for EU ETS breaches.

 

ClientEarth No.8?

ClientEarth were back in court last week, trying to get the High Court to intervene even before the Government publishes its new version of the National Air Quality Plan on nitrogen dioxide emissions on 31 July. They lost this skirmish about the quality of the consultation on the draft plan, but they will no doubt be looking to return to court if needs be, come 1 August.

So the judicial review proceedings brought by ClientEarth keeps going. This is unusual for such cases – normally the judgment and the remedy can be dealt with in one go. But the government still needs to satisfy the Court about its compliance with the national and European requirements. As Mr Justice Garnham has reiterated, the Secretary of State is required to seek to achieve compliance with the Air Quality Directive by the soonest date possible, to choose a route to that objective which reduces nitrogen dioxide as quickly as possible and to take steps which mean meeting the values prescribed by the Directive were not just possible, but likely.

A proper National Plan is therefore still required. This was discussed at the UKELA annual conference in Nottingham this weekend in the plenary session. In the follow-up Climate Change and Energy Working Party session, William Upton also spoke on how this will also affect the local measures which would be required and how planning decisions are made. Regardless of what we may want to happen in the future, decisions still need to be made now as well.

 

High Court determines the appropriate forum for claims following negligently performed flood defence work

The High Court (Technology and Construction Court) has recently handed down judgment in the case of Anthony Hall v Environment Agency [2017] EWHC 1309 (TCC) which provides important guidance for practitioners when dealing with claims brought against the Environment Agency (or other statutory bodies such as Internal Drainage Boards, District Councils or Lead Local Flood Authorities) for negligently performed flood defence work performed under their statutory powers set out in the Water Resources Act 1991 (and equivalent legislation).

Schedule 21 of the Water Resources Act 1991 provides that where injury is sustained by reason of the exercise of any drainage/flood defence work undertaken by the Environment Agency, the Agency shall be liable to make full compensation to the injured party and, in case of dispute, the amount of compensation shall be determined by the Upper Tribunal.

HHJ Havelock-Allan QC’s judgment (sitting as a judge of the High Court) considered whether the statutory scheme for compensation in the Water Resources Act 1991 is an exclusive code for compensation or whether claimants can choose whether to bring an action for negligence at common law (determined by the County Court) or an application for compensation under the statutory scheme which would be determined by the Upper Tribunal (Lands Chamber).

In this case, the Agency undertook works to the roof of a culvert in Morpeth but, mid-way through the works and after a period of heavy rain, water escaped from the culvert roof and damaged the claimant’s property. Nicholas Ostrowski acted for the Agency in this case.

The Agency suggested that any claim for compensation, if not agreed, should be determined by the Upper Tribunal while the Claimant brought an action in negligence at the County Court.

After considering the case of Marriage v East Norfolk Rivers Catchment Board [1950] 1 KB 284 the judge ruled that given the drafting of the statutory scheme set out in the Water Resources Act 1991 there were exceptional circumstances in which a claim in damages for negligence could be brought against the Agency.

In the light of this judgment practitioners are advised to consider carefully the facts of the alleged negligence before issuing proceedings against the Environment Agency in order to ensure that any claim is brought in the correct forum.

 

EA updates list of penalties for EU ETS breaches

On 21 June 2017, the Environment Agency updated its published list of penalties imposed for breaches of the legal requirements of the EU Emissions Trading Scheme for aviation and for stationary installations. The most significant penalties include:

  • CHC Scotia Limited (aviation): Penalised £344,949.48 for a failure to surrender sufficient allowances to cover annual reportable emissions in 2013;
  • Mizkan Euro Ltd, Mizkan Bury St Edmunds (stationary installation): Penalised £84,826.88 for carrying on a regulated activity at their installation without a permit, in breach of regulation 9 of the Greenhouse Gas Emissions Trading Scheme Regulations 2012.

The published list of penalties provides very little detail on the factual circumstances that led to each breach.

The full lists for aviation can be found here and for stationary installations 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.