Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan and Laura Phillips consider DEFRA’s recent consultation on the implementation of the Aarhus Convention, and two separate cases involving the sentencing of company directors for waste offences.

 

UK’s Aarhus implementation continues to arouse controversy

DEFRA has opened (and is imminently closing) a consultation on its draft Aarhus National Implementation Report 2017. The consultation period runs from 15 August until today (29 August) and is publicised only on DEFRA’s consultation website. The final report, already overdue, will be submitted to a meeting in Montenegro on 11 – 14 September. The RSPB, ClientEarth and Friends of the Earth are currently awaiting judgment in their judicial review of the lawfulness of the recent changes in CPR Rule 45.44 permitting variation or removal in certain circumstances of the protective costs limits imposed by Rule 45.43 in respect of “Aarhus Convention claims”. The DEFRA draft report does not refer to the recent rules revision or the resulting litigation, despite the expressed concerns of the Aarhus compliance committee over the compatibility of the CPR with the convention’s ‘third pillar’ of access to environmental justice.

DEFRA’s report states that “Adequate and effective remedies, including injunctive relief in appropriate cases, are available” and refers to the “automatic” costs capping in CPR Rule 45.43.

The draft DEFRA report may be found here

Subscribers to the ENDS Report may read more here

 

Company director given suspended sentence for waste offences

Mark Smyth, the sole director or Arrow Gypsum Recyling Limited, was sentenced on 16 August, to 12 months imprisonment suspended for 18 months with 200 hours unpaid work for one offence of breaching a condition of the company’s environmental permit (guilty plea) and one offence of failing to comply with an enforcement notice (conviction after trial). He was also ordered to pay £10,000 in compensation to the owner of the land, and disqualified from acting as a company director for 7 years.

More than 5,000 tonnes of gypsum plasterboard had been abandoned in a building on the company’s site near Worcester, with a further 29 tonnes left outside, leading to the service of an enforcement notice, which was ignored. The court found that Mr Smyth deliberately continued to accept waste once the processing of the gypsum waste ceased and the building became full. The high total clear up costs (£450.000) were held to be a serious aggravating feature.

The EA’s press release can be found here

 

Company directors given three months to pay more than £1m of criminal proceeds from running a waste site in a manner likely to cause harm to human health.

Peter Ogg and Paul Baison were ordered to pay £694,481.77 and £433,500.00 respectively under a Confiscation Order made by Caernarfon Crown Court on 17 August 2017 following their convictions in September 2015 and September 2016.

Their company, Lancashire Fuels 4 U produced RDF pellets and briquettes from waste. Fires broke out on the site in May 2014 and May 2015. The men were warned by NRW to scale back their operations, but they did not. The men were given suspended sentences of 12 and 11 months respectively, banned from being company directors for seven years and ordered to pay costs of £58,189.

Coverage of the story can be found here

 

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Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Charles Morgan consider DEFRA’s local pollution control report, a consultation on the draft environmental strategy for London, and the impact of environmental regulation on competitiveness.

 

DEFRA local pollution control statistics report

DEFRA have published local pollution control statistics for England and Wales for the year 2015-2016. Local authorities across England and Wales are responsible for regulating a number of industrial processes whose emissions could have a detrimental effect upon the atmosphere. The report is intended to provide qualitative insight into the local authorities’ regulatory roles.

All 357 local authorities and port health authorities were asked to take part. Of those, only 21 did not submit a return. Those 21 local authorities accounted for nearly 900 Part B installations. Those authorities that did report accounted for 16,680 permitted part B installations.

Authorities carried out a total of 9,685 inspections on risk assessed installations in the year. Of these, 8,464 were full inspections, 799 were check inspections and 422 were extra inspections.

DEFRA and WAG’s guidance specifies the number and type of inspections that different risk installations should receive – for example, high-risk, standard fee installations should have 2 full inspections and 1 check inspection per year. The statistics identify that in total 48% of high risk installations received fewer inspections than required and 41% of authorities carried out fewer check inspections than required. One of the most frequent explanations given for failing to carry out the required number of inspections was a lack of available staff.

During 2015/2016, nine prosecutions were reported and six formal cautions were issued. Successful prosecutions resulted in fines totalling £201,205, with the largest fine being £110,600. This was an increase from 2014/2015’s figure of £61,130 for total fines.

Given the number of permitted installations, these figures appear to be extremely low, in spite the fact that this was an increase on the figures from the year before. It is conceivable that this low figure is directly linked at least in part to the fact that approximately half of authorities were unable to carry out sufficient inspections.

The full report can be found here

 

London environment strategy for consultation

On 11 August 2017, the Mayor of London published a consultation on a draft environmental strategy for London. Described as a plan to make London the “greenest city in the world”, the consultation focuses on several key areas in a detailed document that runs to 401 pages. Some of the proposals for key areas are:

Air Quality
Fossil fuels, including diesel, are to be phased out; the whole bus fleet will be zero emission by 2037 and the Ultra Low Emission Zone will be introduced by 2019;

Infrastructure
Green infrastructure will be promoted through the planning system, protecting London’s Green Belt from further development and making London the first ‘National Park City’; new developments in London are to be zero carbon from 2019;

Climate change and energy
Increase clean energy generation with at least 100 megawatts more solar installed by 2030, using grants for community projects and pilot projects (including putting solar panels on TfL buildings) and tendering for the delivery of an energy supply company;

Waste
Set minimum recycling and food waste standards for London’s waste authorities to meet by 2020 and establishing stronger rules to cut pollution from managing and disposing of waste in London;

Ambient noise
Oppose Heathrow expansion and cut noise from rail and underground through the use of technology and maintenance programmes, monitoring in particular the Night Tube and Night Overground.

The full consultation document can be found here

 

The impact of environmental regulation on competitiveness

Environmental regulation curbs the adverse effects which industrial activity would otherwise have on the natural environment. A recent article by Antoine Dechezleprêtre and Misato Sato of the London School of Economics comprehensively explores the reciprocal effects which environmental regulation has upon business, in particular its effect upon competition if otherwise similar enterprises in different jurisdictions are regulated in different ways or to different degrees. One predictable consequence is that companies migrate their worst-polluting operations to those places (countries or parts of countries) whose regulation in its reach or practical effect imposes the lowest economic burdens, the so-called “pollution havens”. This in turn diminishes the effectiveness of international control. On the other hand, environmental regulation drives technological improvement, which can then be exported and economically exploited.

The article seeks to evaluate the impact of regulation upon trade, industry, location, employment, productivity, innovation and competitiveness through examination of previous empirical studies. It concludes that the actual cost of regulatory compliance is small and its significance largely confined to a few sectors. On the other hand, its converse contribution to innovation does not outweigh even those costs. Choice of location is in fact largely driven by other factors altogether. It would thus, the article concludes, be a mistake for governments to pursue an environmental “race to the bottom” in the name of preservation of competition. Further research is called for into the utility of regulatory measures designed to protect competitiveness.

Antoine Dechezleprêtre, Misato Sato; The Impacts of Environmental Regulations on Competitiveness, Review of Environmental Economics and Policy, Volume 11, Issue 2, 1 July 2017, Pages 183–206, https://doi.org/10.1093/reep/rex013

For a recent consideration of cost-benefit analysis in environmental regulation by Charles Morgan, see article here

 

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Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger, Charles Morgan and Nicholas Ostrowski consider money raised as a consequence of the WEEE Regulations, a recent authority on the balance between public powers and private rights in flood management works and Jackson LJ’s new report on costs and judicial review.

 

WEEE Local Project Fund raises £665,000

Valpak, a WEEE compliance scheme operator, has announced that £665,000 has been raised for a Local Project Fund to support projects, led by local authorities, to increase the re-use and recycling of WEEE though costs incurred relating to the collection and proper treatment of waste electrical and electronic equipment.

Producers of electrical and electronic equipment are subject to a number of obligations under the Waste Electrical and Electronic Equipment Regulations 2013 (“WEEE Regulations”) designed to address the environmental impact of WEEE.

The Distributor Takeback Scheme was established as a means for retailers to discharge their obligations under the WEEE Regulations to ensure arrangements for customers to recycle unwanted waste electrical and electronic equipment, an alternative to in-store take-back.

The WEEE Regulations also allow for a producer compliance fee, providing a means for producer compliance schemes to discharge obligations by paying into a fund where there was insufficient tonnage of WEEE collections to meet targets or where the costs that would be involved in meeting those targets would be excessive.

Despite the fact that the money will be used to fund creative local projects to reduce the amount of waste being sent to landfill, the level of money raised suggests that companies may be increasingly choosing to pay compliance fees rather than themselves providing an effective service for the collection and recycling of WEEE. In contrast, last year only £46,000 was raised for the Fund.

It remains a criminal offence for a properly obligated producer to fail to be a member of a relevant compliance scheme. To date, and perhaps surprisingly, civil sanctions are not available under the WEEE Regulations as a means of resolving criminal penalties for technical failures to register with an appropriate compliance scheme, despite the similarity in nature of these Regulations to the Producer Responsibility Obligations (Packaging Waste) Regulations 2007.

Guidance for local authorities who wish to apply to the Fund can be found here 

 

Court of Appeal strikes the balance between public powers and private rights in flood management works

In R (oao Sharp) v North Essex Magistrates Court, Environment Agency interested party [2017] EWCA Civ 1143 the Court of Appeal dismissed the claimant’s appeal against the decision of Haddon-Cave J. in the Administrative Court. Gross LJ summarised the question before the court as:

in the case of new works involving entry onto land or premises, absent consent from the landowner, is the EA confined by s.165(6) of the Water Resources Act 1991 to its powers of compulsory purchase (‘CPO’) under s.154 or compulsory works orders (‘CWO’) under s.168 … or is the EA entitled to exercise the powers of entry conferred by s.172 … ?”

and the court’s answer as:

in the case of new works involving entry onto land or premises, absent consent from the landowner, the EA is not confined by s.165(6) of the WRA to its CPO or CWO powers under s.154 or s.168 of the WRA; the EA is instead entitled to exercise the powers of entry conferred by s.172.”

S.165 provides the EA with “General powers to carry out works” in wide terms but subsection (6) limits any associated right of entry to works of maintenance only (thus not supporting any such right in respect of new works). However s.172 provides a freestanding general power of entry in very wide terms for the purpose of exercising any power conferred or duty imposed, which, as the Court of Appeal has just held, does include the powers given in s.165 in respect of new works.

The case arose out of the actions of the defendant magistrates court in granting the EA a warrant of entry under s.172 and refusing to state a case to be considered by the High Court. The context was the EA’s desire to execute flood defence works on private land swiftly and with the minimum of formality. In contrast, the landowner wished to be entitled to challenge in detail the substance of the EA’s plans through the medium of a CPO or CWO inquiry.

The EA accepted that whatever route was invoked, statutory rights to compensation would arise. It is also worth noting that in the instant case, as would be so in many others, the EA had needed to obtain planning permission before executing the works. The claimant had unsuccessfully challenged the grant of permission.

The Court of Appeal recognised that any reconciliation of the patent stresses in the statutory provisions was bound to be less than perfectly tidy as a matter of statutory construction. However a narrow right of entry would “significantly circumscribe” the EA in the performance of its flood risk management functions. The price to be paid is the significant deprivation of a landowner’s traditional means of challenge to what amounts in many cases to a permanent expropriation by the EA of the beneficial use of the land concerned, with the landowner thereafter prohibited by criminal sanction from interfering with the works (s.176).

As a very hollow consolation to the claimant, the Court of Appeal did express the view that the magistrates court should nevertheless have stated a case on the point.

 

Jackson’s new report on costs and Judicial Review

On 31 July 2017, Jackson LJ issued his Supplemental Report on Fixed Recoverable Costs. While the principal focus of Jackson LJ’s report is on fixed recoverable costs in personal injury and clinical negligence, his recommendations for changes to the funding regime for judicial review are wide-ranging and potentially very significant. Essentially, he suggests that government should extend some form of costs protection to claimants in most judicial review claims and the costs capping system in place in the 1% of judicial reviews which are about the environment should be extended to most of the other judicial review cases.

Whether government will actually implement his proposals is another matter and so, for the time being, nothing changes. However, if they are implemented (and this would require amendment of primary legislation – so unlikely to happen pre-Brexit) then this would represent a ground-breaking change in the funding and availability of judicial review.

The current Aarhus costs cap

Pursuant to the Aarhus Convention, from 2013 claimants in environmental judicial reviews (about 1% of all judicial reviews) have had their liability in the event of an adverse costs order capped in the sum of £5,000 (£10,000, if corporate), and a defendant’s liability capped in the sum of £35,000 (CPR45.41 – 45.44).

From February 2017 the Aarhus rules were substantially modified and the CPR amended to practically limit the availability of the £5,000/£10,000 costs cap. This occurred by making costs protection conditional on the claimant filing and serving a schedule of their financial resources and allowing the court to vary the maximum costs liability if doing so would not make the claim ‘prohibitively expensive’ for the Claimant (though note that Friends of the Earth and RSPB have challenged a this amendment to the costs cap in the High Court and the outcome of that challenge is expected).

Jackson LJ’s report

Jackson considers his original proposal for Qualified One Way Costs Shifting (‘QOCS’) for all judicial review in which costs against a claimant in any judicial review are limited only to what is within the financial resources of the parties given their conduct in the dispute. Jackson LJ then goes on to consider the report of a working group which discussed extending the Aarhus model of costs capping rather that QOCS to judicial review more generally.

A QOCS system remains LJ Jackson’s preferred option but, if not taken up (and he concludes that this is unlikely ever to be implemented by government) Jackson LJ suggests extending the Aarhus system (i.e. £5,000/£10,000 costs protection for Claimants and £35,000 for Defendants) to the other 99% of JRs which do not involve the environment subject to a few exceptions. Firstly, an application can be made by either party to vary those figures up or down in an application made at the permission stage and secondly the system should be subject to some form of means testing for Claimants. In addition, Jackson LJ suggests that the regime should be optional and JR Claimants should be permitted to opt in or opt out of the costs regime. In commercial judicial review with well funded claimants this may well be attractive.

Separately, in what Jackson LJ describes as ‘heavy JR’ (i.e. cases listed to last more than 2 days or with costs of more than £100,000 per side) he suggests that there should be costs management brought in at the discretion of the judge in a similar manner to that which occurs in civil cases more generally in the County and High Court.

Jackson LJ’s attractively simple suggestion of extending the Aarhus system to all judicial review cases has much to commend itself. The big question now is what the government will make of it all. Given that Jackson LJ appears implicitly to accept that these rule changes would act as an encouragement for members of the public to challenge government decisions, the government may think of itself as a turkey being asked to vote for Christmas and may simply refuse to entertain or implement these ideas.

Please note the Environmental Law News Update will be on holiday next week and the next Update will be published and circulated on Monday 21st August.

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Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Charles Morgan consider the prospect of a Green Brexit, the liability of ‘successors’ for contamination of land under the Part IIA regime, and the prospective impact of China’s waste ban on the UK.

 

Delivering a Green Brexit

On 21 July 2017 the newly-appointed Secretary of State for the Environment Mr. Michael Gove MP delivered a speech entitled The Unfrozen Moment – Delivering a Green Brexit. He declared himself an environmentalist acutely aware of the potentially fatal consequences of over-stressing natural systems and expressed regret at President Trump’s rejection of the Paris Agreement. Mr. Gove recognised that the EU had been “in a number of ways, a force for good environmentally” but criticised its weakness in resisting the demands of producers.

Mr. Gove considered that “outside the EU we can do much better” and proposed reform of “the two areas where the EU has most clearly failed to achieve its stated environmental goals” viz. The Common Agricultural Policy and the Common Fisheries Policy.

Most pertinently for the legal practitioner, Mr. Gove said: “ … inside the EU, the European Commission and the ECJ have provided enforcement mechanisms and understandably, some are asking what could or should replace them. My view is that we have an opportunity, outside the EU, to design potentially more effective, more rigorous and more responsive institutions, new means of holding individuals and organisations to account for environmental outcomes.” He promised that this would be addressed in DEFRA’s long-awaited 25-year Environment Plan, which he acknowledged “has been longer in gestation than a baby elephant.” It currently awaits advice from the Natural Capital Committee, which is promised for September. Once the Plan is published, the terms of the European Union (Withdrawal) Bill, if passed into law, will provide Mr. Gove and his successors with ample ‘Henry VIII’ powers to implement its recommendations, providing as it does for Ministerial correction of deficiencies in retained EU law, including at clause 7 the specific power to make provision concerning arrangements involving the EU, an EU entity, a member State or a public authority which “are no longer appropriate”.

The full text of the speech can be found here

 

Liability of successors for contamination of land under the Part IIA régime

In Powys County Council v Price and Hardwick [2017] EWCA Civ 1133 the Court of Appeal determined that Powys County Council was not liable as an ‘appropriate person’ for the remediation of contamination created entirely by the activities of its predecessor local authorities in operating a landfill site over a culverted watercourse. The Court of Appeal considered the situation to be indistinguishable from that in R (Transco plc) v Environment Agency [2007] 1 WLR 318, where the House of Lords had held that nothing in Part IIA of the Environmental Protection Act 1990 rendered Transco (a commercial company) responsible as an ‘appropriate person’ in respect of the activities of its predecessors (private gas companies, followed by the state-owned British Gas). Nor in the Powys case was any such liability transferred or imposed by the operation of the legislative provisions governing the transitions in local government which created the Council. At the time of those transitions, the relevant liability did not exist, even contingently, to be transferred.

In so deciding the Court of Appeal differed from both the first instance judge (Judge Jarman QC) and the Council itself in earlier times, which had (like many similarly-placed authorities) for years proceeded on the basis that it was an ‘appropriate person’ and responsible as such for meeting costs of monitoring and remediation. Whether, in the case of local authorities, a distinction can, and should, be drawn so as to impose liability upon successors is a matter of some general significance and importance, albeit that the outcome might necessarily turn upon the specific terms of the underlying enabling legislation in individual circumstances.

In the result, the decision of the Court of Appeal caused responsibility for remediation under Part IIA to fall upon the innocent current landowner as (in the terms of the statutory guidance) a ‘Class B’ appropriate person, in the absence of any directly responsible ‘Class A’ appropriate person (the Council having been the sole candidate).

 

China waste ban to impact on UK

China has filed a notification with the World Trade Organisation that it intends to ban 4 classes and 24 kinds of solid waste by the end of 2017 as part of a campaign against “foreign garbage”. The ban includes all plastics scrap, unsorted waste paper, certain metal recycling residues, textiles and all unsorted waste or scrap.

The UK currently exports over 80% of its recyclable plastic to China. China is a major importer of waste from across the globe and last year imported 7.3 million tonnes of waste plastics, valued at $3.7 billion, accounting for 56% of world imports. However, China is currently attempting to improve pollution in the country, following well-publicised reports on air and soil quality.

While the export of unsorted, contaminated paper will be banned, China will still accept mixed paper as long as it is resorted. It remains to be seen how this will manifest itself in practice.

The illegal export of waste abroad is a controversial topic, not least because criminal investigations tend to be lengthy and extremely expensive and yet the penalties for breaching the Transfrontier Shipment of Waste Regulations tend to be very low. Part of the regulatory problem is that contamination in waste destined for export is ultimately inevitable (due in part to the limitations of current waste sorting processes) and yet the Regulations make no allowance for this fact and there is very limited UK Guidance, if any, on acceptable levels of contamination or the methods by which such contamination can properly be assessed.

 

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