Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and William Upton consider an early victory for ClientEarth in its legal action to hold the government to account over their Air Quality Plan, contributions from climate change bodies to the Environmental Audit Committee’s inquiry into green finance, and extra funding for DEFRA to help prepare for Brexit.

 

ClientEarth – early win

Readers will recall that ClientEarth are taking the government back to the High Court about their failure to adopt an effective set of measures to ensure the UK meets the EU air quality legal limits within “in the shortest possible time”. The Secretary of State must also take steps which mean meeting the limit values is not just possible, but likely.

The claimant’s task is more difficult this time around, as the judge is being asked to review more of the merits of what is being proposed – which is not the natural territory of the Administrative Court. Part of Defra’s defence is that the UK regime relies on local government action, that the revised air quality plan (June 2017) sets out £3bn of measures aimed at tackling the issue, and that it has introduced – for the first time – an end date for the sale of new diesel and petrol cars (by 2040). Judgment has been reserved.

However, when the case opened on Thursday 25 Jan, one of the Defendants did concede that it had acted unlawfully. The most recent version of the UK Air Quality Plan had not required any action in Wales at all – leaving it to the Welsh Government to publish its own Clean Air Plan for Wales, including include a Clean Air Zone Framework for local authorities to follow. The Welsh Government had said that it had plans to publish the document later this year, even though all of its designated “zones and agglomerations” (Swansea Urban Area, north Wales and south Wales) exceed the permitted levels of nitrogen dioxide. It has now agreed that it will draw up a timetabled air quality plan for Wales, and work with ClientEarth to agree the ‘consent order’. So, once again, ClientEarth have been vindicated. But cynics might also note that the defendant has gained itself a further 8 months by the way in which it has defended the claim.

 

Mandatory climate risk disclosure

The Centre for Climate Change Economics and Policy (CCCEP), together with the Grantham Research Institute on Climate Change and the Environment, has submitted written evidence to the House of Commons Environmental Audit Committee to assist the Committee’s inquiry into ‘green finance’, launched in November 2017.

As part of the document’s submissions, the evidence advocates that climate risk disclosure by publicly listed companies should be a mandatory part of existing financial disclosure rules. The evidence suggests that voluntary reporting alone may not be enough because companies do not have a sufficient incentive to disclose comparable and reliable data and refers to a recent survey by HSBC that showed that whilst two-thirds of institutional investors are planning to increase their climate-friendly investments, they currently lack the appropriate information to do so.

The evidence also highlights the great deal of variability within sectors in how they report on carbon emissions. For example, cement producers have created the Cement Sustainability Initiative voluntary reporting guidelines, but these are followed by only 10 out of the 19 largest cement producers. Many other sectors lack voluntary guidelines in general, resulting in heterogeneous reporting of carbon intensities.

The government has already announced that a Green Business Council will be set up to develop and articulate the business case for reporting on natural capital risks. The words “business case” suggest that there is no appetite in government for imposing mandatory reporting that would increase the regulatory red tape on businesses unless such a requirement can be seen to be a positive contribution to business rather than a burden. Attracting investment through the publication of environmental information may provide that incentive.

A complete draft of the written evidence can be found here

 

DEFRA granted an extra £16m for Brexit uncertainties

Michael Gove has approved emergency cash for DEFRA to prevent “severe disruption to vital public services”.

Funding was requested for six specific projects:

  • £5.8m for new IT capability to enable registration and regulation of chemicals placed on the UK market;
  • £7m for a new national import control system for animals, animal products and high-risk food and feed;
  • £1.6m to deliver systems for licensing and marketing of veterinary medicines;
  • £1m for development of a new catch certificate for UK fish and fish products being exported to the EU;
  • £1m to develop arrangements for data exchange to identify the movement of EU and third country vessels in UK waters and the movement of UK vessels in EU or third country waters;
  • The development of a UK system to manage the quota of fluorinated gases and ozone-depleting substances.

The approval is the first use of ministerial directions to provide cover for Brexit spending since Treasury permanent secretary Tom Scholar and Department for Exiting the European Union chief Philip Rycroft wrote to other department chiefs in October telling them to seek ministerial directions to authorise spending to implement new systems needed for after the UK leaves the EU.

As part of the request for the extra funding, DEFRA’s permanent secretary Clare Moriarty wrote “We are implementing a major programme of work at pace in order to be ready for a range of scenarios including the possibility of a ‘no deal’ exit without a transition period.” Clear evidence, you may think, of the considerable impact on both time and resources generated as a result of Brexit’s lack of direction and residual uncertainty.

 

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Norway’s expanded oil exploration deemed lawful

Posted by: Frances Lawson

An interesting feature of 2018 is that adults and children are divided by the millenium in which they were born. It is perhaps fitting that the judgment in the Greenpeace Nordic and Nature and Youth v Ministry of Petroleum and Energy (referred to by the claimants as The People v Arctic Oil) was delivered in the first week of the new year. In their media briefings, the claimants framed the case as between the irresponsible indulgences of politicians and the future of today’s youth. As Attorney Michelle Jonker-Argueta put it: “This is about climate justice for us, our nieces and nephews, all children.”

The facts of the case and the competing arguments have been explained in a recent blog post. In short, with the support of over 500,000 signatories obtained through a slick media campaign, Greenpeace Norway and youth organisation ‘Nature and Youth’ sought a quashing order with respect to a decision by the Government to issue licenses for petroleum exploration. Motivated by the dangers presented by climate change, the claimants contended that this decision breached a constitutional ‘right to a healthy environment’ provided by Article 112 of the Norwegian Constitution, and in the alternative, was improperly made without sufficient consideration of that Article.

Unfortunately for them, the Oslo District Court dismissed the case with costs. It found that the licensing decision did not breach Article 112, and that the decision had been made with sufficient consideration of its potential environmental impact. The Head of Greenpeace Norway, Truls Gulowsen, has indicated that the claimants may launch an appeal, but for the time being this is a big win for the government. Not only does the Oil and Gas sector make up 12% of its GDP, but the government itself owns a majority share in Statoil, one of the beneficiaries of the new licenses.

The judgment has not yet been translated. However, three key findings have been made clear in media briefings and through the interpretations proffered by Norwegian scholars:

(1) Norway is not responsible for the emissions caused by the use of its oil exports

There are two significant ways in which the oil industry contributes to climate change. First, carbon emissions are released in the process of extraction. Second, and far greater in extent, emissions are released when oil is burnt, for example in producing electricity or propelling a vehicle. Under the relevant international agreements, primarily the Kyoto Protocol and the Paris Agreement, emissions are attributed to the State in which they are released. Consequently, the use of Norway’s oil exports count towards the carbon emissions of the importing state which burns them; only the first kind of emission described above is allocated to Norway.The claimants had argued that for the purposes of Article 112, both kinds of emissions are relevant. They relied on this premise in contending that the licensing decision breached Article 112; it strengthened their claim that the licensing decision would generate enough emissions to breach Article 112. Perhaps unsurprisingly, given this approach runs counter to the way emissions are counted in the international arena, the court rejected this argument. Only the first kind of emissions fall under the scope of Article 112. Influenced by this finding, the Court found that, “[t]he risk for (traditional) environmental damage and climate deterioration as a consequence of that decision are limited.” (1)

(2) The limit of the courts in enforcing climate action or inaction

When private parties or governments are defendants in climate litigations they often argue that climate change is a non-justiciable matter; it is outside the remit of the courts because it is an inherently political issue. The Norwegian government followed suit. The courts delivered a mixed verdict. While the claimants were able to (ultimately unsuccessfully) invoke climate change considerations in their claim that Article 112 had been breached, certain aspects of their case were deemed off-limits by the judiciary. An example of this was the claimant’s contention that by allowing new areas of the Barents Sea to be exploited, the licensing decision would pave the way for other States to expand their oil exploration activities, potentially undermining the Paris Agreement. The means by which States will balance the generation of emissions with abatement and offsetting measures in order to fulfil their obligations under the Paris Agreement was deemed a political matter.

(3) Article 112 does confer justiciable individual rights

The parties offered conflicting interpretations of Article 112. While the claimants asserted that it conferred an individual right to citizens, enforceable in the courts, the government had contended that it merely sets out a non-binding aim for society to work towards. The differing interpretation arose because until this judgment there had been no explanation by the courts as to the nature of Article 112.The court found in favour of the claimants on this point, and this was their silver lining. While regretting the court’s overall verdict, the Head of Greenpeace Norway said: “we are pleased that the court has given a clear meaning to the Article on the environment … that [it] can be used to stop harmful political decisions.” Previously it was unclear when, if at all, a political decision would run afoul of Article 112. This is a common, and positive, outcome in climate litigation; the Grantham Institute at the London School of Economics has reported that in every two out of three climate-related disputes, climate laws have been strengthened or at the very least stayed the same.

 

Concluding thoughts

The claimants were facing an uphill battle from the start. Norway is a participant in the EU Emissions Trading System (EU ETS) in which it contributes to the gradual reduction of EEA and EU-wide emissions in industrial and aviation sectors. 97% of its electricity comes from renewable sources and through the use of offsets, it has committed to being carbon-neutral by 2030. In this context a single licensing decision, for which only the emissions resulting from extraction would be attributable to Norway under international carbon accounting methodologies, was unlikely to run afoul of any constitutional right to a healthy environment. The government could demonstrate that the emissions generated by the licensed activities were limited in their extent and would be countered by its overall strategy to meet its decarbonisation targets.

But like a game of whack-a-mole, once one climate lawsuit is dismissed several others others spring up. A number of Californian cities are demanding compensation from energy companies to minimise the impact of climate-induced weather events; the federal courts are set to hear the case of Juliana v United States in which 21 Orgeon-based youths are challenging the Trump administration for knowingly exacerbating climate change, and; UK-based NGO Plan B has begun the process of judicially reviewing the UK Government for not increasing the decarbonisation target enshrined in the Climate Change Act 2008 on the basis that it is incompatible with the UK’s commitments under the Paris Agreement. 2018 is set to be an exciting year for climate litigation.

(1)  Translation by Catherine Banet, Associate Professor in Petroleum and Energy Law at University of Oslo.

 

This piece has been co-authored by Vedantha Kumar.

Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Nicholas Ostrowski consider the Committee on Climate Change’s response to the UK’s Clean Growth Strategy, a nuisance case brought against a homeowner building a mega basement, and  a consultation which will examine crime and poor performance in the waste sector.

 

Committee on Climate Change response to the Clean Growth Strategy

On 17 January 2018 the Committee on Climate Change published its independent assessment of the UK’s Clean Growth Strategy. The key conclusions are:

  • The Government has made a strong commitment to achieving the UK’s climate targets, placing the low-carbon economy at the heart of the UK’s industrial strategy and framing the Clean Growth Strategy as a positive contribution to the economy.
  • Policies and proposals need to be firmed up. Whilst there are some new policies to reduce emissions, in other areas there are some ambitious proposals but policy to deliver those aspirations has not yet been worked up – for example, how to phase out the sale of new conventional petrol and diesel cars and vans by 2040.
  • Gaps to meeting the fourth and fifth carbon budgets remain. Whilst the Strategy sets out a ‘2032 Pathway’ for sectoral emissions that would just meet the fifth carbon budget, there is no clear link to the policies, proposals and intentions that the Strategy presents. In particular, the fourth carbon budget begins in only five years time and plans set out so far are insufficient.
  • For both new and existing policies significant risks of under-delivery remain. The Government should aim to outperform the carbon budgets in order to provide contingency.
  • Although there is an ambitious programme of innovation spending to support the low-carbon transition, it will contribute little to existing legislated carbon budgets, particularly the fourth, due to lead-times.
  • Carbon capture and storage is an essential technology for decarbonising the power sector and heavy industry. A business model for carbon capture and storage will be needed before 2025 to ensure that industrial projects with the technology can be in operation by the mid-2020s.
  • Key milestones and timings (set out in the table below), beyond those identified by the Government, are set out that need to be achieved to close the gaps to meeting the carbon budgets and provide greater confidence that the policies, proposals and intentions announced to date will be delivered in full.

Key milestones and timings

Sector: Power
Key Action required and timings
Continue to contract for low-carbon electricity generation sufficient to meet the fifth carbon budget, beyond the Spring 2019. Contracts
for Difference auctions already announced (2019 onwards)

Sector: Buildings
Key Action required and timings
Targeted support for lower-carbon heat networks (by 2021)
Extend support for biomethane through the 2020s (by 2021)
Tighten new-build standards including futureproofing for low-carbon heat (by 2020)
Tighten standards for all new-build properties to drive uptake of low-carbon heating in the 2020s (by 2023)

Sector: Industry
Key Action required and timings
Put in place mechanism to support industrial carbon capture and storage, including storage and transport infrastructure (by 2021)

Sector: Transport
Key Action required and timings
Set out measures for HGVs to improve logistics, increase eco-driving and fuel saving technologies (2018)

Sector: Agriculture
Key Action required and timings
Set out policies to deliver emissions reductions through a range of measures including: crop & soil management; livestock diet, health & breeding; waste & manure management; energy efficiency (by 2020)

Sector: Land-use and Forestry
Key Action required and timings
Ensure rate of tree planting is accelerated in a timely manner in order to deliver around 70,000 hectares afforestation in England by 2025 (by 2020)

Sector: Waste
Key Action required and timings
Commitment to ban by 2025 all biodegradable waste streams – including food waste – from entering landfill (by 2020)

Sector: F-gases
Key Action required and timings
Investigate cost – effective opportunities to reduce emissions beyond the EU F-gas Regulation (by 2019)

It is rare to have such concrete analysis of the UK’s environmental strategy. The timings are those of the Committee on Climate Change but there appears to be no reason why the Government cannot adopt them. The full report can be found here.

 

(Brian) May I have my costs back please?

An appeal has recently been handed down against a decision of a Costs Judge in a claim by Brian May in nuisance against his neighbours in Holland Park who were building a mega basement which involved disruptive piling works.

The Queen guitarist (and astrophysicist) issued a claim in nuisance for damages between £50,00 and £100,000 and an injunction restraining the piling works in various ways.

Six months after issue of the claim the case was settled on payment of £25,000 (by this point the disruptive piling works had stopped so no injunction was required) and Dr May submitted a costs bill for £208,236.54. The costs judge held that reasonable costs were £99,655.74 and that the proportionate costs were only £35,000 + VAT and so granted costs judgment in that amount.

This decision (equal to 20% of the costs bill) was appealed and on appeal the judge held that a reasonable and proportionate costs for this claim was £75,000 + VAT (i.e. 36% of the total costs).

Although this decision is limited to its facts, helpfully for Claimants the appeal judge adopted a more generous approach to potential damages in this case and, perhaps of more help for those advising claimant practitioners in this area, held that nuisance cases can be of great complexity and this was ‘relatively sophisticated’ case and little can be read into the fact that it settled so soon after being issued. This decision is required reading for anyone involved in the fraught question of funding for nuisance claims.

 

Yet another consultation

Yet another consultation has been launched, this time looking at proposals to tackle crime and poor performance in the waste sector and introduce a new fixed penalty for the waste duty of care.

Part A seeks views on raising the standard of operator competence across all permitted waste sites by strengthening the regulator’s assessment and enforcement abilities. It is suggested that the most effective way to tackle poor performance is for regulators to intervene at the permit application stage to ensure that operators have the appropriate level of competence in the first place or not issuing a permit if an operator cannot demonstrate the appropriate level of competence. In order to raise standards the proposals are:

  • To widen the scope of offences, behaviour and relevant persons that the regulators can take account of when assessing competence;
  • To require all permitted waste operators to manage and operate in accordance with a written management system;
  • To require all permitted waste operators to demonstrate technical knowledge of their waste site and provide details of the Technically Competent Manager;
  • To require the operator of any permitted site to be financially capable of running their waste business and provide financial security.

The first and last bullet points appear to be the most controversial. The majority of waste and environmental convictions result in a fine, which becomes spent for the purposes of the Rehabilitation of Offenders Act 1974 after 12 months, restricting the extent those convictions can be taken into account by regulators. In addition, the transfer of permits into another name, whilst disguising the person making the decisions on the running of the site, is a problem recognised in this consultation. Steps are proposed to address both.

The insurance market is reluctant to offer insurance products that would cover abandonment of waste sites. It is also believed that this would provide a perverse incentive. Consequently, the consultation proposes requiring all waste site operators to provide financial provision, based on the nature of their operation or their performance as an operator, to reflect the cost of clearing the maximum quantity of wastes allowed on to the site under the permit at any one time and disposing of that waste to landfill.

Part B looks at reforming the exemptions regime. Exemptions are intended to provide a light touch form of regulation for small-scale, low risk waste management activities. Regulators currently inspect exempt waste sites only after problems arise or intelligence suggests illegal activity. There is a concern that exemptions are being abused to hide illegal waste operations. A recent campaign by the Environment Agency to visit 589 exempt sites found that 30% were either illegal or that it was not possible to establish compliance. Proposals include prohibiting an exempt waste operation from being carried out on an already permitted area and limiting the number of exemptions that can be registered at any one site.

Part C seeks views on introducing a fixed penalty notice for household duty of care offences for fly-tipping. It is intended to target householders who breach their duty of care by not taking steps to ensure their waste is passed to an authorised person. Views are also sought on how to improve household awareness of the waste duty of care.

The full consultation can be found here. The consultation closes on 26 March 2018.

 

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Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger, Charles Morgan and Mark Davies consider DEFRA’s 25 year Environment Plan and new regulations coming into force this year which impose strict controls on the use of mercury.

 

DEFRA’s 25 year Environment Plan: a model for the co-existence of environmental protection and economic growth?

In the first Environmental Law News of the year we made our predictions for the development of environmental law in 2018, including the contents of DEFRA’s as then unpublished 25 year Environment Plan. One comment made in those predictions noted that the current environmental buzzwords are, ‘natural capital’; following the Plan’s release on Thursday last week it is clear that those words are not only the buzzwords of the moment, but the concept which the Government intends will underpin environmental policy for years to come.

The Plan itself is split into six chapters:

  • Using and managing land sustainably;
  • Recovering nature and enhancing the beauty of landscapes;
  • Connecting people with the environment to improve health and wellbeing;
  • Increasing resource efficiency, and reducing pollution and waste;
  • Securing clean, productive and biologically diverse seas and oceans; and
  • Protecting and improving the global environment.

One could be forgiven for thinking that the chapter titles are somewhat nebulous, but the goals of the Plan are laudable:

1.   Clean Air.
2.   Clean and plentiful water.
3.   Thriving plants and wildlife.
4.   A reduced risk of harm from environmental hazards such as flooding and drought.
5.   Using resources from nature more sustainably and efficiently.
6.   Enhanced beauty, heritage and engagement with the natural environment.
7.   Mitigating and adapting to climate change.
8.   Minimising waste.
9.   Managing exposure to chemicals.
10. Enhancing biosecurity.

Underpinning each chapter and goal is the concept of natural capital, an idea propagated by the Natural Capital Committee (established in 2012 to advise the government on the sustainable use of our natural assets, i.e. forests, rivers, etc.). It is the reliance on this concept which might suggest that the Plan is an attempt to balance environmental protection with economic growth.

The Plan is full of comment recognising the natural environment as both the basis for our existence and an asset on which our Nation’s wealth is built, for example, “…the 25 Year Environment Plan will help boost… productivity by enhancing our natural capital… since this is an essential basis for economic growth and productivity over the long term.”

Some of the most interesting commitments from the Plan are:

  • Ending the sale of new conventional petrol and diesel cars and vans by 2040 (chapter 1);
  • Increasing woodland in England in line with an aspiration of 12% cover by 2060 – an aim clearly supported by the recent announcement of a new Northern Forest (chapter 3);
  • Doubling resource productivity by 2050 – that being a measure of the value we generate per unit of raw materials we use in the economy (chapter 5);
  • Making sure that all policies, programmes and investment decisions take into account the possible extent of climate change this century (chapter 7); and
  • The establishment of a Green Business Council, which will advise on developing and articulating the “business case” for companies to assess, address and report on natural capital risks and opportunities in their operations and supply chains.

It will be fascinating to see how the Government balances what many may see as the competing interests of environmental protection with economic growth as the Plan promises. It is arguable that certain policies that might engender economic growth will fall foul of, for example, the commitment in chapter 7 to ensure all policies take into account the effects of climate change, although this is observation which presumably cuts both ways.

No doubt as more detail regarding the implementation of the Plan is developed it will become clearer as to whether it really will improve the environment whilst economically making the most of our ‘natural capital’.

 

Mercury Gets Special Treatment

As many of our readers will know, Part III of the Regulatory Enforcement and Sanctions Act 2008 (‘RESA’) and the Environmental Civil Sanctions (England) Order 2010 (as amended) introduced into environmental regulation the use of civil sanctions including fixed and variable monetary penalties, enforcement undertakings and costs recovery. These have enjoyed considerable success and could readily be extended in scope by statutory instrument. Nevertheless this is not happening. The proposed amendments to the Fluorinated Greenhouse Gases Regulations 2015 contain provision for a rather different system of civil penalties and now the Control of Mercury (Enforcement) Regulations 2017 (“the 2017 Regulations”) do likewise. Part 1 of the 2017 Regulations came into force on 1 January 2018 and Parts 2 and 3, concerning civil enforcement, come into force on 1 April 2018.

The 2017 Regulations supplement EU Regulation 2017/852 on mercury, which replaces Regulation (EC) 1102/2008. These European measures are directly binding on member states and impose very strict controls upon the export, import and use of mercury, described in the EU Regulation as “a very toxic substance which represents a global and major threat to human health”. The 2017 Regulations supplement the EU Regulation. Part 2 contains a bespoke code for civil sanctions in England and Wales, with provision for enforcement notices, financial penalties and recovery of enforcement costs. Unlike under RESA, but in common with the proposals concerning F-Gases, there is no system of enforcement undertakings and the standard of proof for the imposition of civil penalties is the balance of probabilities rather than the criminal standard imposed by ss. 39 and 42 of RESA. This seems to reflect the present Government’s rather lukewarm roll-out of the RESA régime by its confinement in operation (by policy) to larger companies. There appears also to be a pattern of disdain towards enforcement undertakings (the financial beneficiaries of which are of course environmental causes rather than central government).

One interesting aspect of the EU Regulation is its declaration of war on the use of mercury amalgam in dental fillings. Whilst the mere presence in the human mouth of such fillings is benign, the disposal of the ensuing waste is highly problematical. The waste arises in two main ways. The first is that every time a dentist drills out an old filling and tells the patient “Spit!”, mercury waste is introduced into the domestic sewerage system (dentists are outside the régime of trade effluent consents). Like everything else introduced into that system, much to the amazement of the general population (including perhaps dentists), it does not simply “go away”. It arrives at the treatment works where it receives no special attention, save where the method of treatment is the relatively unusual one of incineration. In the latter case the environmental permit will impose very strict (and costly) control upon mercury emissions to air. The same method of treatment and control is applied also to a significant proportion of the second major source of amalgam waste: corpses. Similarly severe restrictions upon mercury emissions are imposed upon crematoria in their environmental permits. Burials are uncontrolled. If recent proposals for the dissolving of corpses in caustic soda and the disposal of the residue into the sewerage system come to pass, a new context for regulation of mercury waste will arise.

The EU Regulation requires national plans for the gradual phasing-down of the use of mercury amalgam in dentistry and in the meantime for the separate disposal of amalgam waste. The potential longevity of “Baby Boomers”, reared on a post-war sugar-rich diet with the predictable outcome for their teeth, means that the problem will be a real one for decades to come.

 

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Environmental Law News Update

For the first Environmental Law News Update this year, we make our predictions for the development of environmental law in 2018.

 

The long awaited 25 year plan

DEFRA’s objectives published in December 2017 are as follows:

1. A smooth and orderly exit from the EU;
2. A cleaner, healthier environment, benefiting people and the economy;
3. A world leading food and farming industry;
4. A rural economy that works for everyone, contributing to national productivity, prosperity and wellbeing;
5. A nation better protected against floods, animal and plant diseases and other hazards, with strong response and recovery capabilities.

As part of the government’s manifesto commitment to leave the environment in a better state than it was found, the government has repeatedly promised the publication of a 25 year environment plan. The current intention is to unveil the plan early in the New Year.

We predict the following:

  • Single use plastic will be targeted

An easy start, but what will be interesting is how the government intends to measure progress against recycling targets. The EU currently measures progress against the total weight of waste that is recycled. Expect environmental impact and the value of waste to feature much more significantly. Reform is necessary, not least because of the recent decision of China to refuse to accept poor-quality recycled waste from the UK.

  • More trees

DEFRA proposes to plant 11 million trees. 10% of England is currently covered by woodland. The goal is 12%. £5.7 has just been pledged to develop a new northern forest along a 120-mile stretch of land running next to the M62. Expect this and numerous other proposals as part of the approach to tackling air quality, not least to try and stop the repeated High Court challenges to the lack of effective action so far.

  • Green corporate reporting

We anticipate that as part of a reform of corporate governance, the environmental impact of individual businesses will become a hot topic. Carbon emissions remain a very live issue. ‘Natural capital’ are the current environmental buzz words. Government won’t want to increase the regulatory burden on businesses (Regulators are still required to have regard to the statutory guidance on the growth duty published in March 2017), but as being seen to be green is currently considered to be a vote winner as well as socially responsible, we predict a significant enhancement of the current corporate duties to the environment.

 

Variable monetary penalties

The Environment Agency’s current consultation on its Enforcement and Sanctions Policy closes on 15 January. Within that consultation, it is proposed to update the Environment Agency’s guidance on the methodology used to calculate Variable Monetary Penalties.

It is suggested that the methodology will follow the Definitive Guideline on Sentencing Environmental Offences. This requires an assessment of culpability and harm, as well as an assessment of the size of the organisation and its financial circumstances. The starting points for penalties as set out in the Guideline will be reduced by a factor of 4 and very large organisations will be treated in a class of their own. The maximum penalty that can be imposed by the Environment Agency is £250,000.

To date, Variable Monetary Penalties have been rarely, if ever, deployed by the Environment Agency. However, we predict that this is likely to change. Financial pressures, including the cost of effective enforcement in the criminal courts, combined with the fact that it is thought that many companies may prefer for cases to be resolved by way of a civil sanction rather than have the stigma of a criminal conviction, are powerful factors that favour greater use of Variable Monetary Penalties for Environmental Permitting offences. Enforcement Undertakings have been largely seen as a success.

There remain a number of questions about the current proposed methodology, as well as uncertainty as to how Variable Monetary Penalties will be used in practice. We still await the first judicial review of a decision by the Environment Agency connected to civil sanctions. Yet as the Environment Agency considers that the Guideline provides a “proportionate and effective approach to setting a level of penalty in a consistent way”, if the Guideline does become the basis for the calculation of a Variable Monetary Penalty then we expect this form of alternative sanction to gain significant traction.

 

A new independent environmental body

Michael Gove has promised that the UK will have a new, independent environmental body capable of holding the Government to account on environmental issues. It is inevitable that the Government will have to consult on this body in the near future.

Its creation promises to be a fascinating development for UK environmental law. As yet unanswered questions are:

  • Which bodies will fall under the remit of the new environmental body? For example, will the decisions of local authorities, as well as the executive, be capable of review?
  • Who will be able to raise a complaint before the new environmental body? The European Commission is capable of receiving complaints from the public. Will this be possible before the new environmental body?
  • What rules or principles will be used by the new environmental body to assess the environmental impact of any particular decision or policy?
  • How will any sanction imposed by the new environmental body ensure an effective outcome for the environment?
  • Will the new environmental body be ready to be up and running as of March 2019? Will it have effect across all of the UK?

The creation of this new independent body is a novel and potentially herculean task. The greater its remit, the more resources and time it will require and due to Brexit both are in short supply. DEFRA is keen on ensuring that there is no regulatory gap on Day 1 of Brexit and so there must be a risk that an interim measure with limited function, set up as of March 2019 simply to ensure that something was in place, will ultimately prove to be permanent and the UK will never get the extensive replacement of the functions of the Commission that this proposal promises.

Our prediction is that the forthcoming consultation is critical to the development of environmental law. Do not expect the new body to be an exact replication of the European Commission’s role and functions. This consultation will set out an intention to nationalise environmental law. And whilst we may not see any practical effect this year, the effectiveness of the UK’s environmental regulation is likely to be decided in the next few months.

 

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