Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Mark Davies consider the environmental announcements in last week’s Autumn Budget, the outcome of 2017 Bonn COP 23 and the European Commission’s consultation on pharmaceuticals in the environment.

 

The Autumn Budget and the Environment

The Autumn Budget stole headlines with its promises to tackle the housing crisis and to cut Stamp Duty for first-time buyers but, within the detail, there were various interesting environmental related announcements.

One which may be of interest to anyone who drives an electric car to work is that from April 2018 there will be no benefit in kind charge on electricity provided by employers to charge employees cars. This is only one of a number of announcements aimed at kick-starting the seemingly inevitable move towards electric vehicles. Other support for this agenda is to come in the form of a £400 million (£200 million from the Government, £200 million from private investment) Charging Investment Infrastructure Fund and £100 million to continue the Plug-In Car Grant through to 2020.

On air quality, the main announcement was that of a £220 million Clean Air Fund to support the Government’s July National Air Quality Plan. The Fund is to be generated by a Vehicle Excise Duty supplement (attaching to new diesel cars registered from 1 April 2018 not meeting the Real Driving Emissions Step 2 (“RDE2”) standards) and a rise from 3% to 4% in the Company Car Tax diesel supplement commencing on 6 April 2018 (again, those meeting the RDE2 standards will be exempt).

There were several interesting announcements in relation to environmental taxes. Firstly, the Government proposes to seek views in 2018 as to how the tax system or charges could reduce single-use plastics waste (vis-à-vis the existing plastic carrier bag charge). Secondly, from 1 April 2018 operators of illegal waste sites will be liable for Landfill Tax. This comes in conjunction with the announcement of an additional £30 million over the next four years for the Environment Agency to tackle waste crime. Further, the Aggregates Levy will be frozen at £2 per tonne for the 2018-19 period, whilst a decision has been taken not to introduce an exemption for aggregates extracted when laying underground utility pipes.

An additional £76 million is to be found to fund flood and coastal defence schemes over the next three years, of which £40 million has been earmarked to boost local regeneration in deprived communities at high risk of flooding.

Finally, the Government announced up to £557 million for further Contracts for Difference in order to support the cost-competitiveness of low carbon electricity.

 

Outcome of 2017 Bonn COP 23

COP 23 (the 23rd session of the Conference of the Parties to the UN Framework Convention on Climate Change) was held from 6 to 17 November 2017 in Bonn.

This was the first set of negotiations since Donald Trump announced his intention to withdraw the US from the Paris Accord. On day 2 of the COP, Syria announced it would sign up. This leaves the US as the only country in the world that has stated that it does not intend to honour the agreement. Interestingly, two US delegations arrived at COP 23, including a “We Are Still In” delegation with the likes of former New York Mayor Michael Bloomberg and California governor Jerry Brown (Bloomberg even argued that the alternative group should be given a seat at the climate negotiating table).

Britain and Canada launched a global alliance dedicated to phasing out unabated coal from electricity generation titled the “Powering Past Coal Alliance”. The alliance stated that coal phase out is needed no later than by 2030 in the OECD and EU28 and no later than by 2050 in the rest of the world in order to meet the Paris Agreement. The alliance’s declaration can be found here. However, notable countries that did not sign up to the alliance include the US, Germany, China and India.

It had already been agreed in Paris that 2018 would see a taking stock of how climate action was progressing. At COP 23 the “Talanoa dialogue” was launched, to start in January 2018. The dialogue will be structured around three general topics:

– Where are we?
– Where do we want to go?
– How do we get there?

It is intended that the dialogue will be conducted in a manner that promotes “enhanced ambition”, seeking to build a strong evidence-based foundation for the political phase due to take place at COP 24. The outcome of the dialogue is expected to capture the political momentum and help Parties to inform the preparation of nationally determined contributions.

 

Pharmaceutical consultation opened

The European Commission has this week finally launched its long promised public consultation on pharmaceuticals in the environment. The consultation is available here. The deadline for responses is 21 February 2018. There is a widely held view that the issue of pharmaceuticals in the environment is currently only partially addressed by regulation. 10 potential action areas have been identified. These are:

1. Improved understanding of the risks from pharmaceuticals to the environment;
2. Designing “greener” substances;
3. Ensuring the scientific robustness, consistency and transparency of risk assessments;
4. Promoting greener manufacturing processes;
5. Ensuring environmental risks are adequately taken into account and translated into mitigation actions;
6. Ensuring environmental impacts observed post-marketing are identified and reported (“eco-pharmacovigilance”!);
7. Promoting sustainable use of pharmaceuticals;
8. Ensuring appropriate collection and disposal of unused pharmaceuticals and pharmaceutical waste;
9. Promoting more effective management of waste water, manure and sludge
10. Promoting better overall management of pharmaceutical emissions into soils and the aquatic environment.

30 possible policy options have been identified. The consultation results will be used to identify a shorter list of policy options for possible follow-up by way of proposals for measures, subject to impact assessment as appropriate.

One issue that is likely to arise for UK stakeholders is the extent to which the UK regulatory framework for pharmaceuticals will diverge from the European position. The developments in regulation that will result from this consultation will not be in place before March 2019 and it is by no means clear as to what extent the UK will either continue to be involved in the process or will consider implementing equivalent measures.

 

Six Pump Court receives four nominations in the Real Estate, Environment and Planning category of the Legal 500 UK Bar Awards

Six Pump Court is delighted to announce that it has received four nominations in the Real Estate, Environment and Planning category of the Legal 500 UK Bar Awards 2018.

These are:-

Chambers of the year
Junior of the year: Megan Thomas
Junior of the year: William Upton
Junior of the year: Christopher Badger 

 

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 William Upton, Nicholas Ostrowski, Frances Lawson and Mark Davies consider the failure of Highways England’s plan for a Kent Lorry Park, the recent publication of the Environment Agency’s Enforcement and Sanctions Guidance, revisions to the EU ETS and the Powering Past Coal Alliance, and the new Conservation of Habitats and Species Regulations 2017.

 

Procedural car crash in Kent Lorry Park

When we advise our clients about large projects, we often have to warn them about the consequences of not following the Environmental Impact Assessment regime. They normally listen. Now we have a real live catastrophic example of what happens if they do not.

Highways England have been promoting a lorry parking facility for 3,500 HGVs on M20, to provide a holding area for HGVs as alternative to parking them on the M20 at times when the Channel tunnel and ports are disrupted (known as “Operation Stack”). It is a major problem, as they handle 90% of freight traffic between the UK and mainland Europe. Operation Stack also causes major disruptions to the M2, M20 and local roads. For instance, the area around Maidstone (some 30 miles inland) tends to grind to a halt. Its worst example came in 2015, when Operation Stack was implemented for 31 days, mostly in June and July.

The lorry park solution has been talked about for years. It finally got £250m backing in the Chancellor’s 2015 Autumn Statement, and a preferred site was identified in July 2016. Highways England produced a non-statutory “Environmental Impact Analysis” report, and carried out some consultation. In October 2016, a local hotel business and the Parish Council challenged the proposals by way of judicial review. They said that there was no proper EIA, that Highways England had failed to consider other possible alternatives and that local people had been unable to make representations properly. After all, the Secretary of State must not grant consent for an EIA development unless an EIA has been carried out in respect of it.

The Secretary of State for Transport has just conceded defeat, 3 weeks before the main court hearing, and has said the government will now start to look at alternatives. So instead of the site opening in December 2017, there may be a planning application made sometime in 2019 (with its own EIA). See more here.

There may be some politics mixed up with this, but it should not have fallen down on this legal point. As Richard Burnett, chief executive of the Road Haulage Association, is quoted as saying: “I find it beyond belief as to why the most basic of procedures, that of an environmental assessment, was not undertaken simply on the assumption that it was not needed.”

 

Recent information provided by the Environment Agency may assist companies to avoid criminal prosecution.

The Environment Agency’s Enforcement and Sanctions Guidance sets out the procedure that the Environment Agency will follow when considering whether to accept an Enforcement Undertaking for breach of specified environmental regulations rather than commencing a criminal prosecution. An Enforcement Undertaking offered by a company will go before a civil sanctions panel but it can be hard for affected companies to determine how to ‘pitch’ their offer and exactly what financial and procedural matters the Environment Agency will expect to be covered.

The Environment Agency recently published a list of all the enforcement undertakings which it accepted between 28 January 2017 to 31 August 2017.

The list confirms that over 40 enforcement undertakings (EUs) were accepted in respect of environmental offences (including packaging, environmental permitting and fisheries offences) in that period. The list sets out both the ‘actions that will secure equivalent benefit or improvement to the environment’ (typically a financial payment to an environmental trust or charity ranging from £1,000 to £650,000) and what ‘Actions to stop offending, restore/remediate, come into compliance or benefit any person affected by the offences’ were undertaken.

While each EU is inevitably highly fact-specific and it is difficult to read too much into the financial payments made by the companies involved, Practitioners who may be in the process of inviting the Environment Agency to consider an enforcement undertaking in lieu of a criminal prosecution should be aware that the list exists and may wish to scrutinise the list carefully to understand what the Environment Agency expects to see in order to accept an EU rather than to press on with the more disruptive (and expensive) process of criminal prosecution. The list shows that there is scope for practitioners to suggest inventive and creative means of showing that clients have learnt their lessons and that offending is not likely to re-occur.

 

Revisions to the EU ETS and the Powering Past Coal Alliance

Earlier this month on the 9th of November the European Parliament and Council announced that a provisional agreement has been reached to revise the EU Emissions Trading Scheme (EU ETS) after the third period comes to a close in 2020.

The Commissioner for Climate Action and Energy, Miguel Arias Cañete, lauded the agreement, “Today’s landmark deal demonstrates that the European Union is turning its Paris commitment and ambition into concrete action. By putting in place the necessary legislation to strengthen the EU Emissions Trading System and deliver on our climate objectives, Europe is once again leading the way in the fight against climate change.”

The proposed revisions have not been met with such universal acclaim however. Some commentators have noted that a late compromise would appear to allow less wealthy EU Member States to continue allocating free allowances to energy producers, some of whom would include those running ageing coal power stations. The compromise apparently compounds what many see as an unacceptable concession to fossil fuels by raising the amount governments can allocate in this manner from 40% to 60%.

It is interesting that the concession had to be made at all given that there is clearly international appetite to reduce reliance on coal. Just a week after the announcement about the provisional agreement on the EU ETS, the United Kingdom and Canada announced the creation of the Powering Past Coal Alliance, 30 countries committed to phasing out coal by 2030, at the Conference of the Parties in Bonn.

With uncertainty as to the UK’s continued membership of the EU ETS many may find the establishment of the Powering Past Coal Alliance a reassuring move for a country with pressing obligations under not only the Climate Change Act 2008, but also the Paris Agreement.

Conservation of Habitats and Species Regulations 2017

On 30th November, the new Conservation of Habitats and Species Regulations 2017 will come into force. The new regulations consolidate the 2010 regulations with the ten sets of amendments that have been made since they were adopted, make other minor amendments to align the regulations with wider legislative changes, and amend several provisions of the Marine and Coastal Access Act 2009, such as the definition of a “European marine site”. The Government’s rationale for making the 2017 regulations is that “consolidation now will make the Habitats Regulations 2017 easier to follow and make subsequent necessary operability changes in the light of our Exit from the EU easier to understand”.

 

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COP23 and the current commitment gap – will Bonn galvanise action pre-2020?

Posted by: Frances Lawson

Say “commitment gap” in the context of the climate change regime, and most people will probably think of the recent report by UNEP (the United Nations Environment Programme) highlighting the gap between Parties’ commitments under the Paris Agreement (the NDCs) and the emissions reductions required to meet the 2-degree temperature goal. But there is another worrying commitment gap that often escapes attention; the one that results from the Kyoto Protocol having expired in 2012, and an insufficient number of Parties having ratified the Doha Amendment to extend Kyoto’s operational period to 2020. Consequently, Parties currently have no binding emissions reduction commitments under the international legal climate change architecture, the commitments made in Paris only relating to the period from 2020 onwards.

Of the various sticky issues facing delegates at COP23, one of the trickiest is the subject of “early action” on greenhouse gas emissions. When Parties can’t even agree on whether something should even be an agenda item, it indicates the level of extreme sensitivity with which that “something” is imbued. In short, developing countries at COP23 in Bonn, led by China and India, have been pushing for a review of developed country commitments to 2020. Developed countries have been resisting the call, variously claiming that there is too much on the COP23 agenda already, and therefore that the conference needs to focus on its bread and butter of adding some flesh to the skeleton that is the Paris Agreement.

The call of the Chinese for a review of “developed country” action on reducing emissions is something of a smokescreen given the news this week that global emissions in 2017 are set to rise due, primarily, to a continued increase in China’s own emissions. The smokescreen nevertheless does not detract from pre-2020 action being a vitally important issue at these negotiations. With the Paris Agreement not due to enter into force until 2020, there is an obvious and acute need for Parties to take actions over the course of the next three years that are both aligned with the overall temperature goal of the Agreement, and with the NDCs that they have then pledged to deliver. Given the UNEP report, even if all Parties meet their mitigation commitments post-2020, we’re still going to exceed the 2-degree temperature goal. If Parties aren’t even positioned in 2020 at the emissions starting block outlined in their NDC, the likelihood of those commitments being met becomes even more remote.

The telling truism of the climate negotiations is that agreement comes more easily the further the subject of the agreement is into the future. Conversely, when agreement is sought on short-term actions, on a different approach to be adopted in the here and now, a giant spanner suddenly seems to lodge itself in the works. The current constipation around pre-2020 action is the classic example of this. Even the EU and most of its Member States have failed so far to ratify the Doha Amendment, despite the rallying call at Paris in December 2015 for Parties to do just that.

Yet, even if pre-2020 action is kept out of formal negotiations at COP23, there is another mechanism by which all Parties’ pre-2020 actions will attract some attention. For one of the mechanisms designed to nudge early action off the starting blocks is the rather ambiguously named “facilitative dialogue” conceived in Decision CP.1/21 of the Conference of the Parties at COP21 in Paris. Now re-named the “Talanoa Dialogue” by the Fijia Presidency of COP23, the idea is to take stock during 2018 of progress towards the objectives of the Paris Agreement. “Talanoa” is Fijian for a traditional approach used in the Pacific for engaging in inclusive, participatory and transparent dialogue. The aim is to create an atmosphere of trust, empathy and shared learning so as to engender a greater degree of progress than in a less congenial and more finger-pointing atmosphere, as has so often taken hold in the fraught environment of UNFCCC negotiations. One of the lessons from COP21 in Paris was that more progress, in the climate change arena at least, is made when the emphasis is placed on “coming together collaboratively”, “doing one’s best” and sharing common goals and aspirations, rather than through attempts at coercion, blame and responsibility-taking.

Although its shape will become clearer at the end of COP23 this week and is still the subject of debate in Bonn, the Talanoa dialogue will consist of two phases: the first, a “preparation phase” underpinned by three key questions – where do we want to go? Where are we? How are we going to get there? These questions will be the focus of sessions in May 2018. Following these sessions, a report will be produced for the final preparatory meeting at the start of December 2018, which will be succeeded by the launch of the “political phase” at COP24 at which Ministers will attend in the hope of adding clout to the dialogue outcomes. Against a backdrop of existing tensions, mounting evidence of the inadequacy of existing commitments and of the damage that even 2 degrees of warming will cause, and the lack of interest in getting the Doha Amendment into force, those steering the Dialogue over the coming year are going to have their work cut out if it is to result in some meaningful progress on emissions reductions ahead of 2020, and in the period beyond. Only an exceptional sense of shared endeavour transcending the usual political boundaries and national self-interest is likely to see the kind of progress that everyone, or almost everyone, knows deep down to be needed.

 

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

Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger, William Upton and Mark Davies consider Michael Gove’s comments on the establishment of a ‘Commission-like’ body post Brexit, the importance of re-consulting when a planning project is amended and the impact of air quality considerations on housing development.

 

Michael Gove suggests setting up a ‘Commission-like’ body post Brexit

On 31 October 2017 Michael Gove gave evidence to the Environmental Audit Committee where he set out a number of views on the potential future of environmental policy post Brexit. He has concluded there will need to be some form of body or bodies that would be capable of holding government to account on environmental issues, effectively replacing the roles of the Commission and the ECJ. He considered that the case that such a body was necessary to negate the risk of weakening environmental standards was “well made”.

He went on to state that he suspected that judicial review on its own would not be enough to ensure adequate environmental protection (in contrast perhaps to the impression that has been given to date by the Government). Yet, in a riposte to those that fear the weakening of environmental protection post Brexit, he specifically highlighted the fact that the EU cannot be judicially reviewed. In his view a combination of judicial review and the appropriate means of holding government to account had the potential to provide a stronger and more effective system of ensuring environmental protection in the UK than currently exists in the EU.

Whilst superficially attractive, as always the devil will be in the detail. By way of example, the Commission currently considers environmental complaints and petitions directly from EU citizens, providing an effective route for any person, irrespective of whether they have standing to bring a legal case, to raise concerns about environmental protection. The Commission also requires regular reports, not just on the implementation of environmental law but also on the effect of law in practice. The majority of EU infraction proceedings against the UK have concentrated on the latter issue.

There was little detail of the way in which the functions of the Commission would be replicated by this proposed independent body. Instead, this proposal would need to be the subject of detailed consultation. He stated that this proposal would need to be the subject of considerable consultation. Importantly, there was no indication of when such a body or bodies would be in place. Consultation will occur whilst the UK remains a member of the EU but come exit day, there is no guarantee that these proposals will be in place.

 

The importance of re-consulting when a project is amended

Last week’s decision in the case of R (oao Del Brenner) v London Borough of Hackney [2017] EWHC 2823 (Admin) has provided a timely reminder of the need to act fairly when considering whether to carry out further consultation when amendments are made to an application for consent.

The Court had to consider two judicial reviews regarding the grant of planning permission to redevelop Eagle Wharf on the south side of Regents Canal in Hackney. Various revisions were made to the plans (including a series made in May 2016) and permission was eventually granted in July 2016. The May 2016 revisions proposed a reduction in the residential aspect of the development by 22% and an increase in the B1 use (business) space of 34%.

Mr Brenner argued he (as a Member of the Mayor’s Waterways Commission) and other members of the public should have been re-consulted as to the impact of the May 2016 revisions on the general area, including the Canal as a Site of Interest for Nature and Conservation.

The Judge found that the correct test to apply is one of fairness in each case. Mr Brenner, and the public more generally, were prejudicially deprived of the opportunity to make submissions. The May 2016 revisions were, in the words of the Judge, “…on any view… not insignificant.” A brief letter inviting additional comments to be made before the committee was not an, “…effective substitute for re-consultation on the amendments to the application,” and that, “…the time for providing representations on what was a major application in a sensitive location was short.”

This case is a useful exposition of the principles governing the duty to re-consult, particularly when sensitive environmental areas are concerned.

Nicholas Ostrowski appeared for the London Borough of Hackney.

 

Air quality and housing development

The main news on air quality has been dominated by the recent ClientEarth litigation, and indeed they confirmed last week that they are going back to court again – this time to challenge the substance of the national air quality plan on NO2 published in the summer.

But this issue is becoming increasingly important in individual planning decisions, particularly in areas where there are already air quality problems. What was once simply a matter of offering some mitigation, can now become a reason for refusal. The Planning Court has now being asked to consider a challenge to an inspector’s refusal of planning permission for new housing on air quality grounds – Gladman Developments Ltd v SSCLG and Swale BC [2017] EWHC 2768 (Admin), 6th November. At the inquiry, the developer and the Council had agreed a sum that would be paid in order to mitigate the adverse effects from the traffic likely to be generated by the scheme (of some £9,000 per house). They also prayed in aid the new national Air Quality Plan. CPRE, acting as a third party, brought evidence to dispute this. The inspector agreed with them, and found that there was no clear evidence before him to demonstrate the likely effectiveness of the measures proposed to mitigate the adverse impacts. The court has upheld his decision.

Whilst this can be seen as healthy reminder that the developer’s evidence may not satisfy an Inspector, even when agreed by the local authority, the case is also important for the court’s confirmation that the planning authorities are entitled to consider the local evidence and not simply assume that the new national AQ Plan will mean that the UK will soon become compliant with the Directive. As the Secretary of State himself argued in court, the Inspector was not required to assume that local air quality would improve by any particular amount within any particular timeframe.

 

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Six Pump Court present Regulatory and Planning Law Conference – 20th Nov – Leeds – click here

Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger, Gordon Wignall and Jill Barrett report on recent prison sentences imposed on company directors involved in waste crime, current agricultural concerns including the future of Glyphosate and the UK’s international environmental treaty obligations after Brexit.

 

Prison sentences for company directors involved in waste crime

Corporate officers and one manager were sentenced on 30 October at Sheffield Crown Court for their part in repeatedly breaching environmental permits at three sites in Worksop, Nottinghamshire and Kiveton and South Anston in South Yorkshire.

Kevin Burgess, the principal director of Nottinghamshire Recycling Limited and Park Farm Limited, was sentenced to a total of 21 months imprisonment.  Nottinghamshire Recycling Limited had previously been convicted in 2011 for offences linked to the illegal storage of wood waste. Despite this, the company continued to act illegally, helping to maximise its financial gain at the expense of the environment. Waste was stored in huge quantities outside of the permitted boundary and waste was also illegally blended on site in an attempt to avoid the higher rates of landfill tax. Five fires occurred at the Worksop site during 2013 and 2014.

Both companies have gone into liquidation. Three other directors received suspended sentences of imprisonment and another director and a site manager were sentenced to community orders.

All of the defendants pleaded guilty and consequently received an appropriate reduction to their sentences. All six were of previous good character.

The Environment Agency’s press release can be found here

 

Agricultural concerns, the future of Glyphosate and the precautionary principle

Environmental concerns which have caused comment recently in the agricultural sector include the Environment Agency’s release of its data set concerning natural flood management and responses to DEFRA’s new powers in respect of littering.

The biggest news in the sector is the fall-out from the European Parliaments’ resolution concerning the future licensing of glyphosate. Not only do the faltering attempts by the Commission to promote the chemical amount to important news in its own right, but they also inevitably give rise to domestic issues in relation to Brexit.

DEFRA’s announcement on 24 October of a modest increase in on-the-spot fines for littering and the new development of a power to fine vehicle owners from whose cars litter is thrown, was preceded by the release of its fly-tipping statistics on 19 October. Both the NFU and CLA called for a significant increase in enforcement action, the statistics showing a rise in incidents but significant decline in enforcement.

Co-incidentally, at the time of the announcement, members of Chambers at Six Pump Court were both prosecuting and defending a group of waste company directors who received sentences of imprisonment for offences including the illegal spreading of semi-processed waste on to farmland (see above).

On 31 October DEFRA published an extensive evidence base for the purpose of developing ways of working with natural processes (“WWNP”) to reduce flood risk. The material included 65 case studies and guidelines. One practical use will be in ensuring that a proper business as well as environmental case can be made out for any grant aid which may be available, for instance by way of Natural England’s Countryside Stewardship grants.

Glyphosate is the key ingredient in Monsanto’s product Roundup. Approval for the use of product was made possible, initially, under an EU implementing regulation 1107/2009/EC, and its approval runs out at the end of 2017. The Commission has a delegated power to renew its approval, but this is subject to the control procedures made available to the European Parliament as set out in Council Decision 1999/468/EC.

On 24 October the Parliament adopted a Resolution under 1999/468/EC. This rejected the Commission’s proposal to renew the approval for ten years. Indeed the Resolution called on the Commission “to adopt necessary measures to phase out … glyphosate in the EU no later than 15 December 2020”. On 25 October a vote by the relevant Standing Committee was postponed to 9 November.

The Commission itself had relied on approvals by the European Food Safety Authority the European Chemicals Agency. Notwithstanding that, both the underlying Regulation and Parliament’s Resolution carry pleas to the applicability of the precautionary principle, itself deriving from Art.191 TFEU.

Public reaction was much varied. Greenpeace tweeted that glyphosate “is the asbestos of our generation”. A leader in the latest Farmer’s Guardian carried the headline: “Hysterical eco warriors must not prevail in glyphosate saga”.

A more lawyerly focus is on the much misunderstood and arguably over-used ‘precautionary principle’ in the light of Brexit. Has it now become domestic law, or is it a “general principle of EU law” which will or will not continue to exist under Schedule 1 of the European Union (Withdrawal) Bill?

As of 3 November, the pdf of the notices of amendment to the Bill now run to 169 pages, including the Grieve amendments which would affect inter alia the Henry VIII powers under clause 7, and in turn, the application of this important driver of environmental policy.

The future direction of the precautionary principle in the UK is uncertain. But at least on this topic, uncertainty prevails within the EU, as well as domestically.

 

The UK’s international environmental treaty obligations after Brexit

The impact of leaving the EU on the UK’s international treaty relations will be profound and unprecedented, in many fields including the environment. For each treaty, the effect will vary according to the division of responsibility for its content as between the EU and the Member States (MS), and on whether the UK or the EU or both are party to it. The interaction between international law, EU law and UK law is complex.

In considering the effects of Brexit, treaties need to be categorised both by participation: (1) EU only; (2) EU and UK; (3) UK only, and by the way EU law assigns competence (responsibility) for the subject-matter: (a) exclusive EU competence; (b) shared EU and MS competence; (c) MS competence. Generally (with some exceptions) these categories correlate (1)=(a), (2)=(b) and (3)=(c). To give two examples: the EU has exclusive competence over fisheries and is party to the Northwest Atlantic Fisheries Organization, but the UK is not. The EU and MS both have competence in relation to climate change and both participate in the UN Framework Convention on Climate change (UNFCCC) and related treaties.

Most environmental treaties are ‘mixed agreements’ meaning that the EU and MS share competence. Both the EU and the UK are party to most of them, where the treaty permits this. Most environmental treaties do. Typically, there is a provision that permits the EU to join under certain conditions (a ‘REIO clause’). Where its MS are also parties, the EU must declare the extent of its competence over the matters governed by the treaty. Some treaties also require the EU to inform other Parties of any substantial change. These conditions are insisted upon by other States (eg USA) concerned about lack of transparency over who would be responsible for non-compliance. For example, the EU and the UK both joined the UNFCCC in 1993, and the EU made the requisite competence declaration. The same was done for the Paris Agreement in November 2016, except that the EU began its declaration ‘The following States are at present Members of the European Union……’.

When the UK leaves the EU, the EU will presumably inform all relevant treaty depositaries that it is no longer responsible for treaty obligations applicable to the UK. The UK will remain a party to those treaties and therefore bound by all the obligations via a vis the other treaty parties. This means that by Brexit day, when EU law ceases to apply in the UK, the UK needs to have new legislation to replace all the EU law that currently implements the EU’s treaty obligations. If this is not feasible, what are the alternatives?

None of the alternatives seem attractive or simple. Most treaties provide for withdrawal, on giving a specified period of notice. It is hard to imagine the Government would contemplate the UK’s wholesale withdrawal from environmental treaties, although it might consider it in selected cases. Most treaties do not permit reservations or opt-outs after ratification, but there may be a few treaties that do, or allow some flexibility on national commitments. Or, if new legislation were delayed only by a short period, might the government risk leaving the UK in technical breach of some treaties and hope for the best?

It is hard to imagine other States parties to a treaty being content with ambiguity over the extent of the UK’s acceptance of or ability to comply with all its treaty obligations. Presumably, the UK will clarify its position to all relevant depositaries in due course, probably at the same time as the EU does. Long before that, the Government should clarify its intentions to Parliament and the British public, not least to ensure that the necessary new legislation is enacted, via the EU Withdrawal Bill or otherwise, before Brexit day, and that there is no weakening of the UK’s international environmental commitments.

 

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.

Six Pump Court present Regulatory and Planning Law Conference – 20th Nov – Leeds – click here