Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger, William Upton and Nicholas Ostrowski consider the adoption of draft emissions legislation by the European Parliament, an ECJ ruling against mitigation measures in the screening stage of Habitat Regulation Assessment and what happens when a sentencing judge rejects an agreed basis of plea in a regulatory case.

 

European Parliament tackles emissions

On Tuesday 17 April at a plenary session of the European Parliament, two draft laws with binding national emission targets were adopted.

EU targets are to be turned into binding national targets for sectors which are not covered by the current EU Emissions Trading Scheme, essentially agriculture, transport, building and waste, which together account for about 60% of the EU’s greenhouse gas emissions.

The cuts are intended to contribute to meeting the EU’s overall collective pledge, under the Paris Agreement on climate change, to deliver a 40% cut in greenhouse gas emissions in all sectors, from 1990 levels. The effect will be to commit the UK to a reduction in greenhouse gas emissions of 37% from its 2005 levels by 2030.

Secondly, the European Parliament also adopted a separate law, aiming to cut greenhouse gas emissions from land-use and forestry and boost the level of emissions absorbed by forests as a way to tackle climate change. Currently, EU forests absorb the equivalent of nearly 10% of total greenhouse gas emissions each year.

The proposed law would lay down rules under which EU countries have to ensure that deforestation is balanced by planting new trees, and sets measures to develop the sector in order to boost CO2 absorption by forests, croplands and grasslands. From 2030, member states should endeavour to boost CO2 absorption so that they exceed their emissions.

Both drafts will need the European Council’s formal approval before entering into force.

The UK is currently committed to a greenhouse gas emission reduction of 57% of 1990 levels by 2030 as part of the 5th carbon budget and is a party to the Paris Agreement. How the UK meets its targets is a distinct issue. It is precisely this kind of development where the UK risks losing its voice as a result of Brexit. Depending on what is agreed with the EU in the final agreement, it is perfectly possible that the UK will find itself committed to meeting EU environmental standards that it will have had no role in determining.

 

Regulatory Judge rejects basis of plea

Anyone involved in criminal environmental litigation will be aware of the complexities of negotiating a basis of plea that is acceptable to the prosecution and the defendant. But what happens when the sentencing judge rejects an agreed basis of plea?

In R (HSE) v ATE Truck and Trailer Sales Ltd [2018] EWCA Crim 752 the Court of Appeal have grappled with exactly this problem in respect of another regulatory offence, a breach of the Health and Safety Regulations.

In ATE the victim died from head injuries sustained while breaking up a metal trailer in the defendant’s premises. The main issue which troubled the parties was that the victim worked on the defendant’s site but ran his own business and was not the defendant’s employee or agent. The parties agreed a basis of plea which essentially set the case within ‘low culpability’ but the seriousness of harm risked in the highest category (there remained some dispute about how likely the harm was).

However, at the Crown Court the experienced regulatory judge disagreed with both parties and assessed culpability as high and went on to impose a sentence of £475,000.

The Court of Appeal confirmed that a judge can depart from an agreed basis of plea but, given the breach which the defendant pleaded guilty to (a breach of the duty of care to its own employees rather than, as one may have expected, a breach of the duty owed to non-employees) ‘this case stands as a further reminder of the need for care when tendering and accepting a basis of plea.’ Ultimately, the Court of Appeal found that the judge strayed into the consideration of offences outwith the charge that the company had actually pleaded guilty to, and thus that the judge was therefore wrong to impose a sentence based on high culpability when the basis of plea correctly assessed culpability as low.

Both prosecutors and those who act for defendants should consider this case when considering which of a range of offences best covers the facts of the offence and also when negotiating a basis of plea and ‘selling’ the basis of plea to the sentencing judge.

 

No mitigation measures in Habitat screening

Well, this will put the cat among the pigeons.

The European Court of Justice has decided that the competent authority cannot take mitigation measures into account in the screening stage of the Habitat Regulation Assessment. Instead of being able to determine at an early stage that the project is not likely to have a significant effect, projects will have to go through a much more long-winded process of approval.

This appears to revive an old argument, familiar from many EIA cases. But it is one the European Commission advanced to the court as well. It is also intended to enhance public participation in the discussion about the effects. The court agreed “the fact that, as the referring court has observed, measures intended to avoid or reduce the harmful effects of a plan or project on the site concerned are taken into consideration when determining whether it is necessary to carry out an appropriate assessment presupposes that it is likely that the site is affected significantly and that, consequently, such an assessment should be carried out.”

The Supreme Court decision in Champion looks like it needs early re-assessment. The UK will no doubt regret that no member states intervened in the case and there is no Advocate General’s opinion. It is a short and blunt judgment that does not engage with any of the contrary arguments. It makes you wonder what the screening stage can sensibly do for any controversial project near a protected site.

See the judgment in People Over Wind and Peter Sweetman v Coillte Teoranta, Case C 323/17, 12 April 2018 (an Irish court reference in a case about the grid connection cable to a wind farm).

 

 

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

Chambers UK Guide to Environmental Law 2018 was published this month and written by Six Pump Court’s Environmental Law Team. You can also use this link 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.

 

To keep up-to-date follow us on Twitter @6pumpcourt or click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk

Environmental Law News Update

In this latest Environmental Law News Update Christopher Badger and Mark Davies consider the imposition of a £350,000 fine on Severn Trent Water Ltd for pollution, amendments to the Withdrawal Bill by the Lords to ensure greater environmental protections, and a win for ClientEarth and others in a CJEU judgment against continued logging in ancient Polish woodland.

 

Severn Trent Water Limited fined £350,000 after fish kill

On 19 April 2018, at Derby Crown Court sitting in Nottingham, Severn Trent Water Limited were fined £350,000 and ordered to pay costs of £68,000 after a pollution incident in November 2015 killed an estimated 30,000 fish and damaged the ecology of the River Amber over a 5km stretch.

A leak within a chamber at the Ogston Water Treatment Works had led to the contents being contaminated with sodium hydroxide, which was then washed through a road gully into the River Amber via an outfall pipe.

In passing sentence, His Honour Judge Smith found that:

“It beggars belief that a company of the size and expertise of Severn Trent Water had no policy whatsoever in respect of potential incidents arising in connection with their dosing chamber, either at this treatment works or indeed at any others throughout the UK. To have no policy whatsover when dangerous chemicals could have leaked out in any number of ways is highly negligent. The size and success of Severn Trent makes it even more astonishing.”

There have been some improvements to water ecology since the incident but something resembling a full recovery is not expected until the summer of this year. Severn Trent have contributed £228,000 to the Derbyshire Wildlife Trust.

Severn Trent’s accounts for the year ending 31 March 2017 show a turnover of £1.5 billion, gross profit before interest and tax of £540 million and net profit of £324 million. Allowing full credit to the company for the guilty plea, the financial penalty imposed equates to an approximate starting point for sentence of £525,000. That figure is still well within the bracket for a negligent category 1 sentence for a large company (which ranges from £140,000 up to £750,000) but exceeds the bracket for a negligent category 2 sentence for a large company (which ranges from £60,000 to £350,000). On the assumption that this was considered a category 2 offence (although this may have been arguable) then there has been some uplift to reflect the size of the company. In comparison, the most significant fine imposed against a water company since the decision of Aylesbury Crown Court in the Thames Water case was against United Utilities, who were fined £666,000 in September 2017 following the discharge of approximately 21,700 m3 of effluent into the River Medlock, significantly impacting fish population and water quality over four kilometres.

Severn Trent compared well in the Environment Agency’s report on the performance of water companies in 2016, with 30 category 1-3 incidents per 10,000km of sewer being the third lowest of the water companies behind United Utilities and Wessex Water.

The Environment Agency’s press release can be found here

 

Lords amend Withdrawal Bill to give ‘enhanced protection for certain areas of EU law’

314 Contents to 217 Not Contents was enough to pass Amendment 11, proposed by Baroness Hayter of Kentish Town, Lord Warner, Baroness Smith of Newnham and Lord Kirkhope of Harrogate.

Amendment 11 would introduce a new Clause into the Withdrawal Bill and nullify the Henry VIII powers for ‘certain areas of EU law’. As relevant to Environmental Law, it reads:

“(1) Following the day on which this Act is passed, a Minister of the Crown may not amend, repeal or revoke retained EU law relating to—

(e) environmental standards and protection,

except by primary legislation, or by subordinate legislation made under any Act of Parliament insofar as this subordinate legislation meets the requirements in subsections (2) to (5).

(2) Subordinate legislation which amends, repeals or revokes retained EU law in the areas set out in subsection (1) must be subject to an enhanced scrutiny procedure, to be established by regulations made by the Secretary of State.

(3) Regulations under subsection (2) may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.

(4) The enhanced scrutiny procedure provided for by subsection (2) must include a period of consultation with relevant stakeholders.

(5) When making regulations relating to the areas of retained EU law set out in subsection (1), whether under this Act or any other Act of Parliament, a Minister of the Crown must—

(a) produce an explanatory statement under paragraph 22 of Schedule 7, and
(b) include a certification that the regulation does no more than make technical changes to retained EU law in order for it to work following exit.”

The additional check and balance provided by Amendment 11 will no doubt be of some comfort to those concerned about wholesale backsliding on environmental standards post Brexit.

It should be remembered, however, that the amendment still has to be accepted when the Bill is returned to the Commons, otherwise it will be referred back to the Lords in the process affectionately referred to as “ping-pong”.

 

Same ClientEarth, Different Country

ClientEarth and six other organisations have chalked up an important win over the Polish government in a judgment handed down by the CJEU on Tuesday last week.

The case concerned logging in three forest districts (Białowieża, Browsk and Hajnówka) within the Puszcza Białowieska Natura 2000 site, a recorded ‘site of Community importance’.

The Białowieża forest is one of the few primeval woodlands (ancient woodland to those of us in the UK) left in Europe and had been heavily logged since logging limits were tripled in 2016. The Polish government has insisted that the reason behind the increase in logging was a protectionary measure following an outbreak of bark beetles.

However, of particular concern in the case was an environmental impact assessment undertaken by the Regional Directorate of the State Forest Office in 2015 and adopted by way of a management plan in November 2015. The plan laid down the conservation objectives and established the conservation measures in relation to the forest.

In a particularly damning passage, the CJEU noted that,

“…the spruce bark beetle was not identified in the slightest by the 2015 management plan as a potential threat to the integrity of the Puszcza Białowieska Natura 2000 site and that, on the contrary it is the removal of the century-or-more-old spruces and pines colonised by the spruce bark beetle that was identified by that plan as such a potential threat.

Poland now faces an EUR 4.3 million fine if the logging is not stopped, potentially rising to EUR 100,000 a day.

 

**Next week’s blog will include reflections on People Over Wind and Peter Sweetman v Coillte Teoranta**

 

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

Chambers UK Guide to Environmental Law 2018 was published this month and written by Six Pump Court’s Environmental Law Team. You can also use this link 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.

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 BadgerRobert Griffiths QC, SC, and Nicola Strachan consider a new enforcement and sanctions policy from the Environment Agency, demands from the EU for a ‘non-regression clause’ on environmental standards in any future Brexit deal and signs that the UK government may be prepared to permit more fracking applications.

 

Environment Agency publishes new enforcement and sanctions policy

The Environment Agency has published its new enforcement and sanctions policy, combining and amending its previous published documents. A new single revised enforcement and sanctions policy has been widely welcomed. At the same time, the natural capital calculator has also gone online, which is to be used to guide enforcement undertaking offers following pollution events to water.

The consultation response document provides a number of interesting developments, reflecting on the issues that were raised in the consultation, in particular in respect of the use of variable monetary penalties:

  • In order to explain the Environment Agency’s assessment of culpability at an early stage, it is now proposed to include the culpability assessment and a summary of the reasons for it in the Notice of Intent to impose a variable monetary penalty, as well as a summary of the environmental harm caused (or risk) and the facts behind it;
  • There will be no Panel involved in the decision making process for a variable monetary penalty. The views of the investigating officer and the lawyer who reviewed the case will contribute to the decision on whether a variable monetary penalty is an appropriate disposal, subject to the general oversight of the civil sanctions regime by directors;
  • The wording of the draft policy has been revised. Previously it had stated that very large organisations “will” be treated in a class of their own. This has now been amended to “may” to reflect the wording of the sentencing guideline;
  • The Natural Capital Calculator is only one choice for assessing the appropriate sum to be proposed in an enforcement undertaking offer and the Environment Agency would like to work with others to refine the model.

The new enforcement and sanctions policy can be found here. The consultation response can be found here

 

EU demands ‘non-regression clause’ on environmental standards

Michael Barnier has stated that the EU will insist on a “non-regression clause” in any future deal after Brexit in order to “prevent the reduction of pre-Brexit standards”. In a debate in the European Parliament on 10 April he said that the 27 member states would be extremely vigilant in blocking an attempt by the British government to undercut current regulations to gain a competitive advantage. His view was that there could be no “ambitious partnership” without guarantees on fair competition, social standards, tax dumping and environmental standards.

The standards of the United Kingdom are inevitably going to diverge from those of the EU post-Brexit. At present, the British government’s rhetoric is that it wishes to raise environmental standards, demonstrated by the 25 year environment plan. However, Michael Barnier’s proposal of a non-regression clause written into the final agreement raises a number of practical issues:

  • How will it be policed? Is it the EU’s intention to leave open a role for the CJEU to monitor the activities of the UK after Brexit with a view to stamping out any competitive advantage that it perceives has been obtained through a reduction in environmental standards?
  • Who will hold the UK to account? Are we likely to see complaints from EU member states that the UK has breached its obligations under the ‘Brexit agreement’ which may then result in sanctions being taken against the UK? Will citizens have a role in the complaints process over perceived reductions in environmental protection?
  • Why is it assumed that the European model on environmental standards is superior in approach? Assuming that the UK is not going to engage in widespread environmental dumping of standards with a view to obtaining a competitive advantage over the EU, then will a “non-regression clause” actually hinder the development of UK environmental policy as a result of a misconception that divergence must equate to an unfair advantage?

The EU is concerned to see a level-playing field following Brexit. The UK is unlikely to agree to tie its own hands in the future over the development of UK policy. Another fiendishly difficult problem to be solved in the coming months.

 

Communities Secretary “minded to allow fracking”

A recent Public Inquiry (April 2018) into proposals to frack at Roseacre Wood in Lancashire may well result in a green light being given for this and other applications of this kind. The outcome of this Inquiry will, therefore, be keenly awaited. The initial application by Cuadrilla was not given Government approval, however, the Communities Secretary, Sajid Javid, said he “would be mindful to allow fracking” but not before an Inquiry to examine road safety had taken place. That statement may well be an indication that the application will be granted provided there are no other site-specific reasons for not allowing it to go ahead. The Government seems to be adopting an “in principle approach” to granting permission for hydraulic fracturing. This follows numerous statements by the Government that the process is safe and is needed to safeguard our key onshore resources (whether petroleum or deep geo-thermal). Fracking is viewed as desirable in the interests of the security of supply and in transitioning to a low carbon economy.

A third of UK energy demand is met by gas. As the country will use less coal in the next 10-15 years for electricity generation gas will help fill the gap alongside nuclear and renewable energy. It will help reduce carbon emissions. By 2025 it is expected that the country will have to import up to 70% of the gas we consume if we do not develop shale. There is great potential for the creation of many new jobs and increased tax revenues. Communities will benefit through access and increased employment. The Institute of Directors (see “Getting Shale Gas Working”, May 2013) estimated that UK shale gas production would be a net benefit to public finances and could attract annual investment of £3.7 billion and support up to 74,000 jobs.

 

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

Chambers UK Guide to Environmental Law 2018 was published this month and written by Six Pump Court’s Environmental Law Team. You can also use this link 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.

 

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 Upton, Nicholas Ostrowski and Natasha Hausdorff consider the recent report published by the Green Finance Taskforce, human rights damages paid to those affected by DECC changes to solar power subsidies, and the interaction between environmental and personal injury law explored in a recent Supreme Court case.

 

Accelerating Green Finance

The Green Finance Taskforce recently published its report, ‘Accelerating Green Finance‘, calling on the Government to consolidate the UK’s position as a world-leading hub for green finance.

Chaired by former Lord Mayor of the City of London Sir Roger Gifford, the independent taskforce was established in September 2017 to look at how the UK could fulfil this vision, focusing on the necessary systems and structures to make green finance an integral part of our financial system. Similarly, the Government’s October 2017 policy paper on ‘Clean Growth‘, recognised it as one of the ‘Grand Challenges’ for the economy. It noted an enormous opportunity to maximise the advantages for UK industry from the global shift to clean growth through the development, manufacture and use of low carbon technologies, systems and services that cost less than high carbon alternatives.

Advocating the creation of a new Green Finance Institute, to act as a ‘one-stop-shop’ for all work relating to the sector (from international engagement to green fintech, climate and data science), the ‘Accelerating Green Finance’ report sees the UK’s status as host to a world-leading financial services centre as an opportunity to direct development in green finance. A further key recommendation is that the Government issue a green sovereign bond to help fund future national green projects, including the UK’s flood defence and resilience.

The Taskforce worked with over 140 organisations across the finance and energy sector. It comprises leaders and representatives from the London Stock Exchange, the Bank of England, the Environment Agency, and from banks, law firms and academia. The recommendations focus on how the Government and the private sector can work together to focus on green finance, including:

  • driving demand and supply for green lending products;
  • setting up Clean Growth Regeneration Zones;
  • improving climate risk management with advanced data;
  • building a green and resilient infrastructure pipeline; and
  • boosting investment into innovative clean technologies.

Sir Roger Gifford, GFI Chairman said: “This report marks a significant starting point for truly propelling green finance onto the national agenda. We look forward to engaging with Government closely on this in the short and long-term future.”

John Glen MP, Economic Secretary to the Treasury and City Minister said of the report: “Our first-class talent and unrivalled ambition resulted in over $10 billion being raised through green bonds listed in London in 2017, and we have no intention of slowing down. I want to thank the Taskforce for their hard work, and I look forward to working with the industry on their recommendations to ensure that this market flourishes, not just at home, but across the world.”

 

Human Rights Act Damages and Solar Power

Readers may recall that the coalition government abruptly changed the ‘feed-in tariff’ (FIT) subsidy rules for solar power in 2011, which led to a severe impact on the industry and several firms saying that they would sue. The courts confirmed that this change was unlawful (because the Act did not allow them to change the FIT subsidy retrospectively). A claim for damages against DECC was brought under the Human Rights Act 1998 (claiming some £250 million). Some preliminary points of law were decided in the claimants’ favour, and the cases were due to continue to a trial to resolve the remaining factual issues and quantum of damages, starting in January 2018. All then went quiet.

In one of those happier consequences of FoI, the lawyers for some of those firms have now been able to speak about the actual events (see here). The Government had insisted that the settlement terms be kept confidential – as it so often the case when litigation is settled. However, in light of the Government’s freedom of information response, the settlement sum is now public knowledge. The headline confirms just how severe that impact was – “£60 million damages for solar companies”. Assersons are also correct to say this is the largest award made under the Human Rights Act, that we know of.

 

Interaction between environmental and personal injury law explored in the Supreme Court

In the case of Dryden and others v Johnson Matthey plc [2018] UKSC 18, the UK Supreme Court allowed an appeal by employees and former employees of the technology and chemicals company Johnson Matthey plc who had been exposed to platinum salts resulting in platinum salt sensitisation.

The legal novelty in the case resulted from the fact that platinum salt sensitisation, per se, results in no symptoms but further exposure to chlorinated platinum salts normally causes an allergic reaction.

After testing revealed that the appellants had developed platinum salt sensitisation, they were no longer permitted to work in areas where they might have been exposed to platinum salts and develop allergic reactions but were moved to different roles at the Respondent firm where they said they suffered financially and earned less. Effectively, the appellants brought a claim for personal injury where there were no personal injury symptoms.

Overturning the decision of the High Court and Court of Appeal who found for the respondent company on the grounds that pure economic loss was not actionable, the Supreme Court (Lady Black giving the sole judgment) held that the physiological changes to the appellants’ bodies was undoubtedly harmful and an actionable personal injury even in the absence of symptoms. This personal injury resulted in the appellants having to accept lower paid work.

It remains to be seen whether this decision has any wider consequences or is limited to the particular facts of this case. Those involved in litigation arising from poor air quality may take some comfort from this decision if, for instance, the evidence shows that poor air quality has sensitised those affected or has resulted in some subtle, non-obvious personal injury. The Judgment makes these type of claims more arguable, even if some might say the courts should try as hard as they can to restrict this case to its own facts.

 

Chambers UK Guide to Environmental Law 2018 was published this month and written by Six Pump Court’s Environmental Law Team. You can also use this link 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  published last week – 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