Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Mark Davies and Ana Kantzelis consider the attention given to environmental issues in the Draft UK-EU Brexit Agreement, the government’s attempts to tackle single-use plastics, and the extent to which the UK and Ireland are meeting their Aarhus Convention obligations.

 

Consideration (or lack thereof) of the environment in the Draft Agreement between the UK and the EU on Brexit

On 19 March the ‘Draft Agreement on the withdrawal of the UK from the EU and the European Atomic Energy Community’ was published (available here). The document is split into green text (agreed at negotiators’ level and only subject to technical legal revisions in the coming weeks), yellow text (agreed on the policy objective but drafting changes or clarifications required) and white text (proposed by the EU with discussions ongoing but no agreement as yet). Unsurprisingly, most of the coverage of the Draft Agreement has centred around the implications for trade and the border between the Republic of and Northern Ireland. However, conspicuous by its absence is any consideration of the environment.

The Draft Agreement is 130 pages; the word ‘environment’ (or derivatives thereof, to be generous) appears a total of six times. One of those entries is within the contents page, another in an explanation of the annexes. ‘But wait!’ I hear you cry, ‘an entire Article in the Protocols is dedicated to the environment!’. Well, yes, Article 7 of the Protocols is titled ‘Environment’, but: firstly, its text is white and therefore not agreed; secondly, its contents relate to:

‘the provisions of Union law for environmental protection concerning the control of the import into, export out of, release into, or transport within the Union of substances or material, or plant or animal species, listed in Annex 2.8 to this Protocol’

And finally, and most importantly, it relates solely to the Protocol on Ireland/Northern Ireland. There is not one mention of the environment within the substantive body of the Draft Agreement on withdrawal.

You may ask, ‘what is Annex 2.8? Does that provide us with any indication as to what form environmental protection might take post-withdrawal more generally?’ An excellent question, but not one that can be answered as Annex 2.8 is not included within the Draft Agreement.

In short, the environment does not appear to have featured explicitly in the production of the Draft Agreement.

One article within the main body of the Draft Agreement that has raised a few eyebrows (the text, predictably, is white) is Article 85, the ‘Binding force and enforceability of judgments and orders’. Article 85 provides that judgments and orders of the Court of Justice of the European Union (“CJEU”) handed down before the end of the transition period (at present the 31st of December 2020, Article 121), and those handed down under Article 82 (already pending cases decided after the end of the transition period) and Article 83 (new cases), ‘shall have binding force in their entirety on and in the United Kingdom’.

Article 85 would appear to be in direct conflict with section 6 of the draft European Union (Withdrawal) Bill, which states that a court or tribunal is not bound by any principles made or decision given by the CJEU after the date of Brexit – 29 March 2019. If it is proposed that judgments of the CJEU will continue to have effect between 29 March 2019 and 31 December 2020, and Schedule 1, section 2 of the Withdrawal Bill (the sub-section of the Bill that would infamously, and potentially, exclude general environmental principles such as the polluter pays post-Brexit) is amended accordingly to account for this, then would an expedited judgment from the CJEU decided before 31 December 2020 that recognised such environmental principles as general principles of EU law be able to safeguard those principles after the end of the transition period and give some level of security to environmental law? Much like the contents of Annex 2.8, we will have to wait and see.

 

Tackling single-use plastics

Alongside Chancellor Philip Hammond’s Spring Statement on 13 March 2018, HM Treasury launched a call for evidence, ‘Tackling the plastic problem: using the tax system or charges to address single-use plastic waste’. The announcement was foreshadowed in the Autumn 2017 Budget and follows the publication, earlier this year, of the ‘25 Year Environment Plan’, in which the Government pledged to eradicate all avoidable plastic waste by the end of 2042.

The call for evidence aims to explore how changes to the tax system or other charges could be used to reduce amounts of single-use plastic waste, specifically by reducing the unnecessary production of single-use plastics in the first place, increasing their reuse and improving the rates at which they are recycled. It will also consider how the same economic incentives might be used to drive innovation in relevant sectors, for example, to encourage growth in the domestic recycling industry.

The call for evidence considers the entire supply chain of single-use plastics, from production and retail to consumption and disposal, and asks 18 questions, covering such key issues as how single-use plastics should be defined, their harms and benefits, points in the life cycle at which the government could potentially intervene and the impact of any potential interventions. Interestingly, it specifically requests comments on a recent proposal put forward by the Environmental Audit Committee for a levy on disposable coffee cups, which would operate along the same lines as the existing (and very effective) 5p charge on carrier bags.

The deadline for responses to the call for evidence is 18 May 2018.

It is not currently clear what the timeline for the formulation and implementation of any policy recommendations arising out of the call for evidence may be. However, a growing public awareness of the scale of the problem of plastic pollution, as well as the fact that the UK’s waste and recycling industry and infrastructure is likely to come under significant pressure in the near-term due to China’s recent decision to impose severe restrictions on the import of plastic and paper waste for recycling, imply that the task of reducing single-use plastic waste will remain an urgent and important priority for the legislature.

 

More ’hus

UK on the Naughty Step Again …

The UK’s unhappy engagement with the provisions of the Aarhus Convention (the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters) continues.

Following the qualified success of their judicial review proceedings last September concerning the costs rules governing Aarhus Convention claims (see R (RSPB and others) v Secretary of State for Justice [2017] EWHC 2309 (Admin)), the RSPB and Friends of the Earth Scotland have now submitted a communication to the Aarhus Convention Compliance Committee asserting the UK’s failure to provide the public with an effective right of substantive challenge. Signatories to the convention are required to enable challenges to both procedural and substantive legality. As the RSPB put it:

“The Aarhus Convention requires the UK to provide more than a checklist of procedural compliance – it requires the courts to grapple with the merits of the decision to a much greater extent than it currently does.”

Presently, UK domestic challenges are limited to judicial review of the decision-making process.

On 21 March the Committee declared the communication admissible so it will now receive full consideration. Given the UK’s record to date in front of the Committee and the persuasive simplicity of the RSPB’s position, the Government finds itself in an unenviable position.

…. And Eire Too

Meanwhile, across the Irish Sea, Convention rights have been engaged by proposals by EirGrid plc to erect 300 pylons carrying 138 miles of high-voltage cables to link the girds of Eire and Northern Ireland. These proposals were challenged by North East Pylon Pressure Campaign Ltd. (NEPP). An Bord Pleanála, the body responsible for considering applications for development consents, convened a hearing. NEPP challenged this procedure by judicial review in the Irish High Court. In those proceedings it sought an interlocutory injunction to restrain the hearing. The substantive relief sought was wide-ranging, including challenges to the propriety of An Bord Pleanála acting as decision-maker given that the Minister had also appointed it as the authority responsible for facilitating and co-ordinating the permit-granting process for the same project.

The injunction was refused and so too was the application for permission, on the grounds of prematurity i.e. that NEPP should have awaited a final decision by An Bord Pleanála and challenged that. Numerous issues arose as to costs, which the court referred to the CJEU (First Chamber). That court had jurisdiction because the EU is itself a party to the Convention and has implemented the Convention in EU law by Directive 2011/92/EU, which in turn must be implemented in national law by Member States. This includes the requirement that Member States must determine at what stage decisions etc. may be challenged. In briefest summary the CJEU held:

  • that the requirement that costs must not be prohibitive applies to permission hearings required by national law as well as to substantive hearings
  • where the scope of the proceedings is wider than issues concerning the public right of participation in environmental decision-making, the Directive’s provisions as to costs are by their wording limited in application to costs relating to those issues; where there are also other issues, it is for the national court to distinguish, on a fair and equitable basis, between costs which engage the protection of the Directive and other costs
  • a national court of a member State must nevertheless construe national procedural law to give the fullest effect possible to articles 9(3) and (4) of the Convention (access to justice and lack of prohibitive expense) in cases where the applicant is seeking to ensure compliance with national environmental law, even those these articles do not have direct effect; this exercise may result in costs outwith the protection of the Directive nevertheless enjoying similar treatment in a national court;
  • neither the Convention nor the Directive prevents national courts from making costs orders against applicants; in doing so, a court may take account of factors such as prospects of success and whether an application is frivolous or vexatious, but must still ensure that costs imposed are not unreasonably high
  • the protection afforded by the Convention applies to enforcement of environmental law “in the abstract”; a connection to actual or potential damage to the environment is not required and national legislation imposing such a requirement is a derogation from Convention rights.

This significant decision will no doubt encourage further scrutiny of the UK’s “bare necessities” approach to Aarhus implementation in relation to costs rules; Part VII of CPR Part 45, which is already looking like “the House that Jack Built” as a result of frequent “tweaks” in response to determinations of its inadequacies.

The full judgment can be found here.

 

**Please note there will be no update next week – the next Environmental Law News Update will be sent out on Monday 9th April 2018**

The Chambers UK Guide to Environmental Law 2018 was published this month and written by Six Pump Court’s Environmental Law Team. The Guide can be accessed on the Chambers UK website. You can also use the link here to access the full-text pdf version. The Guide provides easily accessible information to help navigate environmental law in the UK and covers the environmental regulatory framework, environmental protection, developments in policy and law, enforcement, liability and disclosure requirements as well as the law as it relates to contaminated land, waste, asbestos, climate change and emissions.

 

Have you seen our latest Environmental Law Video Newscast – a monthly round-up of the latest developments in environmental law.

To keep up-to-date follow us on Twitter @6pumpcourt or contact bridget.tough@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 UptonNicholas Ostrowski and Natasha Hausdorff consider legal privilege in the context of a regulatory investigation, the publication of a Joint Inquiry report entitled ‘Improving Air Quality’ and the EU Commission’s Sustainable Finance Action Plan for a Greener and Cleaner Economy.

 

Off the record, on the QT and very hush hush

No, we’re not talking about the archetypal celebrity gossip columnist Sid Hudgens in James Elroy’s seminal novel LA Confidential but about one view of legal privilege in which any document prepared with the assistance of solicitors for the purpose of anticipated criminal or civil litigation is privileged, off the (regulator’s) record, on the quiet and very hush hush between client and lawyer.

In the blockbuster case of Serious Fraud Office v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 QB (where a claim to privileged documents prepared by a mining company in the course of an internal investigation into fraud was rejected), the High Court upheld a much more stringent approach to privilege that a document will only attract litigation privilege if 1) litigation is in progress or reasonably in contemplation, 2) the relevant communication or document is made or created with the sole or dominant purpose of conducting that litigation and 3) the litigation is adversarial, not investigatory or inquisitorial. The High Court said “Criminal proceedings cannot be reasonably contemplated unless the prospective defendant knows enough about what the investigation is likely to unearth, or has unearthed, to appreciate that it is realistic to expect a prosecutor to be satisfied that it has enough material to stand a good chance of securing a conviction.”

Although permission has been granted to ENRC Ltd to appeal to the Court of Appeal where a host of interested parties will make submissions (including the Law Society who strongly object to such a narrow view of privilege being taken), the ramifications of the ENRC case are now being felt in the regulatory world.

In R (Health and Safety Executive) v Paul Jukes [2018] EWCA Crim 176, Mr Jukes had been the transport and operations manager for a waste company at which another employee, was killed in a baling machine. Mr Jukes denied he had responsibility for health and safety at the time of the incident.

At trial the HSE pointed to a statement signed by Mr Jukes which he had given to his employer’s solicitors and in which he had admitted taking formal responsibility for H&S before the accident. He accepted that the signature on the statement was his but claimed to be unable to recall signing it. It was argued at trial for Mr Jukes that the statement was inadmissible since it was a legally privileged document, but the judge rejected this, admitting it instead as material evidence. Mr Jukes was convicted of an offence under the Health and Safety at Work etc Act 1974 and appealed.

On appeal, it was submitted on Mr Jukes’ behalf that the employer’s solicitor had represented both the company and all the individuals associated with it (including Mr Jukes) at the time when his statement was signed. It was therefore privileged, having been created with the assistance of solicitors for the dominant purpose of anticipated civil or criminal litigation and should not have been seized by the HSE.

The Court of Appeal rejected Mr Jukes’ claim to privilege on the basis that there was no evidence that at the time when his statement was signed either he or the company had enough knowledge of what the HSE investigation would unearth that it was realistic to expect the HSE to be satisfied that it had enough material to stand a good chance of securing convictions and that litigation was therefore reasonably in contemplation. The Court went on to hold that any privilege which did attach to the document was exclusive to the company or its Managing Director on whose behalf the solicitors preparing the statement were instructed.

Until the Court of Appeal rules on the issue in the ENRC case, individual directors and employees at risk of personal prosecution for environmental or other regulatory offences should be aware that signed statements provided to solicitors instructed by their employer pursuant to internal incident investigations may not be privileged. If such internal incident investigation reports are privileged, they are likely to be privileged only for their employer alone. Solicitors conducting such incident investigations should advise their clients and interviewees of this accordingly.

 

A new Clean Air Act ?

The joint inquiry held by four Select Committees produced its report this week: “Improving Air Quality”. It is unprecedented for the Select Committees to join forces in this way, and it is important for emphasising the cross-cutting nature of the issue. The report represents the combined views of the Environment, Food and Rural Affairs, Environmental Audit, Health and Social Care, and Transport Committees.

The concern expressed is that the Government is not acting quickly enough – which adds more political weight and pressure to the legal pressure coming from the succession of successful court challenges by ClientEarth. There is a call to provide more financial support to local authorities, and to bring forward the date from 2040 by which manufacturers must end the sale of conventional petrol and diesel cars, in line with more ambitious commitments in other countries. But they also emphasise that the public health crisis is about more than just nitrogen dioxide emissions.

One interesting headline is their call for a new Clean Air Act, to set out the government’s regulatory course, including whether to adopt World Health Organization air quality guidelines for all air pollutants, including sulphur dioxide, particulate matter and ozone, and not just nitrogen dioxide. The proposal for a right to clean air is lacking in real detail. The Minister’s response to the Committees’ questions reveals the government’s attitude. She argued that “We are clear on what we have to try to do, we know that councils have the powers to do that and we need to press on with it together”. She denied that new legislation was needed to support legal redress on air quality, and insisted that “there is absolutely no diminution in any sense of any target or of our ambition” in light of Brexit. Translation – we have existing powers that can be used, and the focus now should be on what is happening at the more local level.

 

The EU Commission’s Sustainable Finance Action Plan for a Greener and Cleaner Economy

The European Commission has released information on its strategy to develop a financial system that supports the EU’s climate and sustainable development outlook.

Based on recommendations set out by the High-Level Expert Group on sustainable finance (in its final report published in January 2018) the Commission has laid out a roadmap to boost the role of finance in achieving a “well-performing economy that also delivers on environmental and social [goals]”.

The EU and governments around the world committed to the objective of a more sustainable economy and society when they adopted the Paris Agreement on climate change and the UN 2030 Agenda for Sustainable Development. This new Action Plan constitutes a key step to implementing both the Paris Agreement and the EU’s agenda for sustainable development.

The Commission’s Action Plan comprises the following strategy points:

– Establishing an EU classification system for sustainable finance; a common language to define what is sustainable and identify potential areas of impact.
– Introducing EU labels for green financial products, on the basis of this new classification system.
– Clarifying the duties of asset managers and institutional investors to take into account sustainability and enhance disclosure requirements.
– Incorporating sustainability in prudential requirements, including potentially recalibrating capital requirements for banks for sustainable investments.
– Enhancing transparency in corporate reporting; in particular revising the guidelines on nonfinancial information to further align them with the recommendations of the Financial Stability Board’s Task Force on Climate-related Financial Disclosures (TCFD).

The Commission’s press release emphasised the necessity of steps addressing the financial system, if the EU is to develop more sustainable economic growth, ensure stability, and foster more transparency and longtermism in the economy. This perspective is also reflected in the European Union’s Capital Markets Union (CMU) project.

The Commission is organising a conference on 22 March 2018 to discuss the Action Plan, which can be streamed live here.

 

The Chambers UK Guide to Environmental Law 2018 was published this week and written by Six Pump Court’s Environmental Law Team. The Guide can be accessed on the Chambers UK website. You can also use the link here to access the full-text pdf version. The Guide provides easily accessible information to help navigate environmental law in the UK and covers the environmental regulatory framework, environmental protection, developments in policy and law, enforcement, liability and disclosure requirements as well as the law as it relates to contaminated land, waste, asbestos, climate change and emissions.

 

Have you seen our latest Environmental Law Video Newscast – a monthly round-up of the latest developments in environmental law.

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

Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Charles Morgan consider the liability of a parent company for environmental harm, amendments to the CPR for Aarhus costs protection and the possibility of a new Environmental Act.

 

Am I my subsidiary’s keeper? The Court of Appeal considers again the liability of a parent company for environmental harm

In Okpabi v Royal Dutch Shell plc and Shell Petroleum Development Company of Nigeria Ltd [2018] EWCA Civ 191 the Court of Appeal revisited the ground traversed in Lungowe and others v Vedanta Resources plc [2017] EWCA Civ 1528 (see our earlier blog), albeit with the opposite outcome on the facts i.e. the conclusion (by a 2:1 majority) that the English-domiciled parent holding company (RDS) could not even arguably be liable in respect of the activities of its Nigerian operating company (SPDC). The case does not really refine or develop the law as stated and applied in Lungowe but powerfully demonstrates the need for a very careful scrutiny of the facts before conclusions can be drawn about the degree to which a parent is either “responsible for” or “in control of” the activities of its subsidiaries so as to found tortious liability.

The background to the case was the activities of SPDC in Nigeria and its operation of oil pipelines, leaks and spills from which had caused considerable pollution to the environment through which they passed. As in Lungowe, it could be observed that SPDC (a company registered in Nigeria) was the obvious defendant and Nigeria was the obvious forum for dispute resolution. The basis of RDS’s liability and the foundation of English jurisdiction was said to be its assumption of a duty of care by virtue of the nature of its relationship with its subsidiary.

The context of the decision was an application by RDS under CPR Part 11(1) for a declaration that the English High Court lacked jurisdiction, or should not assume any jurisdiction which it had. The Court of Appeal concluded that the relevant test was effectively the same as that for summary judgment i.e. whether the claim was bound to fail or had “no realistic prospects of success”. Having protested loudly at the amount of material put before the court on the application, the Court of Appeal nevertheless devoted three days of hearing time to its determination and its three members gave separate judgments totalling 51 pages in length, each of which delved deeply into the content of that very same documentation, including additional material which was put in at a very late stage. Any lawyer acting in a similar future application would be bold to depart from a comprehensive approach to the presentation of evidence but will also have to be prepared for resulting criticism.

The claimants relied upon the well known three-fold Caparo test of foreseeability, proximity and fairness/justice/reasonableness. The Court of Appeal was satisfied that foreseeability was present but the majority (Simon LJ and Sir Geoffrey Vos C) held that there was insufficient proximity.

The majority found persuasive the point that some of the arguments deployed in favour of rendering RDS liable in respect of the activities of SPDC in Nigeria would do equal duty in relation to the activities of any of its subsidiaries and thus (in the words of Simon LJ) “proved too much”. Both Simon LJ and Sir Geoffrey Vos C also concluded that the imposition of liability would not be “fair, just and reasonable” under the third limb in Caparo, particularly because (per Sir Geoffrey Vos C) of the “unlikelihood …. of an international parent … undertaking a duty of care to all those affected by the operations of all its subsidiaries”. However since even an “assumption” of tortious responsibility is imposed by law rather than “undertaken” voluntarily, the significance of “likelihood” in this context is unclear.

Sales LJ (dissenting) concluded that EDS could be treated as an “anchor defendant” to allow the claims against both companies to proceed. He considered that the evidence revealed a potential case which was “more than merely speculative”. He was particularly persuaded that there was a case to be examined as to joint or shared control by way of direction and guidance (a possibility canvassed in Lungowe) and observed that the distribution of some responsibilities were “on functional business lines rather than by reference to corporate personalities”. Sales LJ was also willing to attach weight to the content of the corporate literature produced by RDS. Indeed if Sales LJ were the trial judge, it seems by no means improbable that the arguments of the claimant might ultimately have prevailed. Given that, wider interesting questions of jurisprudence arise as to the conceptual soundness of any conclusion by a mere majority that a case has no realistic prospects of success (even though their fellow judge in the Court of Appeal thinks that it has).

Whilst the issues in this decision are most likely to arise in the context of jurisdictional disputes, the principles of law are equally applicable in the domestic sphere and may on the right facts be engaged in any circumstances where an operating subsidiary is insolvent or insubstantial but there is a viable parent or holding company (or even, arguably, controlling individuals – it is difficult to discern anything in the judgments which confines the principles to corporate entities, VTB Capital plc v Nutritek International Corporation [2013] 2 AC 337 notwithstanding).

The full judgments can be found here.

 

Civil Procedure Rules amended for Aarhus costs protection

The Civil Procedure (Amendment) Rules 2018 (SI 2018/239) made on 23 February 2018 come into force on 6 April 2018. They are intended to clarify the Civil Procedure Rules in response to the September 2017 judgment in R (The Royal Society for the Protection of Birds, Friends of the Earth Ltd and another v Secretary of State for Justice and another [2017] EWHC 2309 (Admin), in which a number of NGOs challenged February 2017 amendments to the CPR for Aarhus Convention claims.

Rule 45.42(1)(b), which describes the financial information a claimant is required to provide if seeking the benefit of the costs protection provisions, is removed and replaced with a provision that mirrors the requirements for applications for costs capping orders in judicial review claims which are not Aarhus Convention claims.

A provision is introduced into rule 45.22(2) that confirms that the court may only vary the costs cap (or remove altogether the limits on liability) on an application by a claimant or defendant.

At the end of rule 45.44 a provision is inserted to make it clear that an application to vary such a costs cap (or remove a limit) must be made at the outset and determined by the court at the earliest opportunity; and that an application may only be made at a later stage in the process if there has been significant change in circumstances.

The statutory instrument can be found here

 

A new Environment Act on the horizon

At a meeting on 1 March, Michael Gove conceded that the 25-Year Environment Plan is “not a perfect document”. He also stated that he “absolutely gets” the need for a nature law to ensure that the ambitions in the plan are met.

This leaves green bodies in a tantalising position. Holding out the prospect of a new Environment Act brings with it the possibility of legislation directed at setting a range of targets and milestones with a view to improving nature in a manner similar to the Climate Change Act 2008.

However, it will take time for such legislation to be put in place, certainly beyond March 2019 (the point at which we will leave the EU). The government has already promised to consult this year on the functions, remit and powers of a new environmental watchdog, as well as the nature, scope and content of a new policy statement of environmental principles and has rejected calls to enshrine environmental principles into UK law, as recently proposed by peers in an amendment to the European Union (Withdrawal) Bill. However, there must be some concern that the government will struggle to get sufficient measures in place on Brexit day to ensure equivalence (or at least the veneer of equivalence).

It had originally been proposed that this consultation would take place at the start of this year. Now, no date has been given, other than to say that it will be at some point this year.

The problem is that we may end up with a hastily-concocted halfway house of a national environmental watchdog in March 2019.  This interim position may only be permitted to exist on the back of a promise for an all-encompassing wonder of a new Environment Act. The alternative possibility would be some form of continuing role for the European Commission, but in the present climate this does not look likely.

 

Have you seen our latest Environmental Law Video Newscast – a monthly round-up of the latest developments in environmental law. February’s edition can be viewed here. Future editions will be available at the end of each month on our website.

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

 

Environmental Law News Update

In this latest Environmental Law News Update Christopher Badger, William Upton and Nicholas Ostrowski consider the Environment Agency’s list of recently accepted Enforcement Undertakings, a new DEFRA consultation on the future of food, farming and the environment in a Green Brexit, and the supplementary judgment in the most recent ClientEarth judicial review.

 

Enforcement Undertakings accepted

The Environment Agency has published its list of Enforcement Undertakings (“EUs”) accepted in the period 1 September 2017 to 31 January 2018.

The list identifies the offeror, the offence for which the EU was accepted, whether the offer was proactive or reactive and actions that include remediation and that will secure equivalent benefit or improvement to the environment.

The two largest offers are both from Thames Water Utilities Limited, reactive offers for discharging matter or effluent that is poisonous or injurious to fish, spawn, spawning areas or food of fish contrary to section 4(1) of the Salmon & Freshwater Fisheries Act 1975. The first includes a financial contribution of £140,000 to the Reading & District Angling Association, £60,000 to Kennet Valley Fisheries Association and £10,000 to Silchester Common Parish Council. The second includes a financial contribution of £250,000 to the Wandle Trust.

It appears that attempts are being made to put water companies under pressure at the moment. The Environment Agency’s recent report on water quality (available here) highlighted the number of serious incidents caused by the water industry and in both that document and a recent speech, the Chair of the Environment Agency has called for fines to be made “proportionate to turnover”, a departure from current sentencing practice. Michael Gove gave a speech on 1 March at Water UK’s annual conference in which he said that water firms’ performance in stopping pollution had “stalled” and that he would “consider changes to the regulatory framework” should companies continue to drag their feet.

According to the Environment Agency, the number of serious water pollution incidents has levelled over the last decade to about 60 incidents each year, although in fact agriculture is now the largest sector responsible for significant pollution events to water (more on this below).

The list doesn’t identify the assessment of culpability and harm in any particular case, which makes it very difficult to use as a form of comparison or to assess the consistency of approach by the Environment Agency. Nor does the list contain sufficient detail to allow for the proposed natural capital calculator to be used and to see if it would make any meaningful difference.

The full list can be found here 

 

The future for food, farming and the environment

Another consultation for us all to enjoy!

On 27 February 2018 DEFRA launched a consultation on the future of food, farming and the environment in a Green Brexit.

The proposals cover three distinct periods:

a) Until the end of the current Parliament (i.e. 2022), the same amount of farm support that is currently provided under the Common Agricultural Policy will be provided

b) Beyond 2022, there will be an ‘agricultural transition’ period lasting a number of years during which direct payments will continue but which would result in subsidies being gradually reduced so that in the first year of this period, reducing direct payments could free up to approximately £150 million which could be used to support farmers in delivering environmental enhancement and other public goods

c) After the new agricultural transition period, the new scheme will begin to apply. This will have several elements:

i. A new environmental land management system to pay providers for delivering environmentally beneficial outcomes and provide support for farmers and managers who steward their land responsibly;
ii. Targeted payments to those who deliver higher welfare standards for animals;
iii. Smarter regulation and enforcement to remove, reduce or improve inspections on farms;
iv. Managing risk and volatility for farmers;
v. Helping rural communities prosper;
vi. Encouraging international trade
vii. Ensuring a sufficient and suitably skilled workforce exists; and
viii. A new statutory framework.

Every element of the proposals are significant and controversial. If it was so easy to create a subsidy system which was fair, politically palatable and which properly paid providers which delivered environmentally beneficial schemes then, you may ask, why wouldn’t this have been implemented in the CAP? However, the biggest immediate concern for many involved in the rural economy may be the simple question of where they are going to find sufficient staff to work at Britain’s farms in the absence of the free movement of migrants from the EU. The suggestion that the new system will ensure a sufficient and suitably skilled workforce exists seems particularly ambitious.

The consultation is available here. Responses are due by 8 May 2018.

 

The ClientEarth (No.3) Order

Following on from last week’s item, we can now note that the terms of the Order were the subject of a supplementary judgment, on 21th February. The text of this has become available.

It was accepted that the Welsh Government have come up with “a realistic, but demanding, timescale” for the production of their own Air Quality report in 2018. As for England, the Supplementary Air Quality Plan must be published by 5th October 2018. The Court has also confirmed that it will indeed take a supervisory role, so that the claimant does not have to launch fresh judicial review proceedings all over again if it wants to challenge the government’s compliance with this supplement. Whilst this supervisory role is highly unusual, and has interesting Administrative law implications, Garnham J did point out that:

It is now eight years since compliance with the 2008 Directive should have been achieved and the 2017 Air Quality Plan is the third unsuccessful attempt the government has made at devising a plan which complies with the Directive and the domestic regulations. All the while, the health of those living in the towns and cities of this country is at real risk”.

Whilst he did not doubt the government’s good faith, “the history of this litigation demonstrates that good faith, hard work and sincere promises are not enough.

It was said in Parliament on 22nd Feb by the Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Dr Thérèse Coffey) that the government would not be appealing.

 

Have you seen our latest Environmental Law Video Newscast – a monthly round-up of the latest developments in environmental law. February’s edition can be viewed here. Future editions will be available at the end of each month on our website.

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