Environmental Law Podcast – June 2018

The latest monthly environmental law podcast presented by Christopher Badger, in association with LexisPSL, is now available.

This short update focuses on June’s key legal developments, which, this month include the latest environmental amendments to European Union (Withdrawal) Act 2018, the House of Commons Environmental Audit Committee report on mandatory climate risk reporting and the future of environmental law.

Please find June’s podcast below.

IPCC set to warn that 2 degrees is no longer a “safe” degree of global warming

Posted by: Frances Lawson

In a revised version of the draft earlier mentioned in this blog, details of the Intergovernmental Panel on Climate Change’s latest analysis of the impacts of different degrees of warming have just been leaked into the public domain.

The past few months seems to have resulted in a hardening of the IPCC’s views on the differences between a 1.5 degree warmer world and a 2 degree warmer. The previous version, leaked in January, stated that every additional 0.5 degrees of warming over the 1 degree that the earth is already experiencing would increase the risks of various impacts. That has now been beefed up to a “substantial increase” in the risks.

By way of illustrative example, a study published in April this year has allowed the IPCC to assess that at 1.5 degrees of warming, there is a high likelihood of one ice-free Arctic summer per century. At 2 degrees of warming, this is predicted to occur every decade.

While further changes to the IPCC report are likely before it finally sees the light of day, the essential premise – that 2 degrees of warming is no longer a “safe” scenario – seems now to be set in stone. With the Paris Agreement designed to deliver either 1.5 degrees or 2 degrees of warming, the message from the world’s leading scientists that the latter target, and indeed the official temperature target of the Paris Agreement, will have damaging and dangerous climatic impacts, with significant societal, humanitarian, economic and ecological effects, will inevitably call into question the adequacy of the Agreement. While the report will strengthen the hand of small-island states and other vulnerable nations, it remains to be seen the level of persuasion it will exert on those parties with the power in their hands.

As demoralising as the IPCC report is, on the domestic front, there is news that could, if it goes ahead, provide a faint glimmer of hope of achieving a “2 degree” or even a “1.5 degree” world. After a sustained campaign by ShareAction and others, the UK Government has just announced a consultation on new pensions regulations that would require pensions providers and their agents to reveal to customers their approach to managing climate risks and other ethical concerns. Given that there is perhaps no greater truism than “money makes the world go around”, a legal requirement to disclose how climate change risks are factored into decisions about how and where the vast sums held in pension funds are invested could mark a major shift in re-directing those sums away from climate damaging investments into those that support the objectives of the Paris Agreement.

To take part in the Government’s consultation, click here

Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Charles Morgan consider the issues raised at this weekend’s UKELA Conference, a Government review into organised waste crime, and misrepresentations in enquiries before contract and non-reliance clauses.

 

UKELA debates the future of environmental law

UKELA has just held its annual conference at the University of Kent, Canterbury, under the title ‘Past Reflections and Future Horizons: Environmental law in a post-Brexit World’.

The conference threw up a number of significant issues that are likely to heavily influence the development of environmental law in the years ahead:

  • The UK needs a clear and ambitious waste strategy. At present, there is insufficient infrastructure to support greater recycling of waste and insufficient capacity in the UK for energy recovery.
  • Whilst the environmental principles are to be written into law, their meaning is to be identified in the accompanying policy statement. Is it to be proposed that this policy statement will refer to the extent that future ECJ case law can be taken into account? What will happen in five years’ time when the ECJ potentially delivers a judgment impacting on the meaning of the precautionary principle?
  • The new Environmental Watchdog will need to be highly selective as to which complaints it investigates. It is intended that the Watchdog will be in a position to consider the actions of local authorities but can only report on those activities to Government, who would then be expected to take the necessary action.
  • Individual responsibility and stewardship are to be key factors in driving environmental improvements.
  • There is scope for the further development of the Environmental Tribunal and for mandatory targets to be put into law, against which progress towards the aims and targets of the 25 Year Environment Plan can be assessed.

One of the most impactful speeches of the conference saw Emma Lui confidently describe the generational transition towards caring for the environment and the awareness of the need to improve environmental standards. Also featuring highly was the cross-over between environmental law and other fields, in particular infrastructure planning, corporate responsibilities and the health and well-being agenda. There was common agreement that this is an extremely exciting time to be involved in environmental law.

 

Government launches review into organised waste crime

The government has announced a review into serious and organised crime in the waste sector. The purpose of the review is to enable DEFRA to make actionable recommendations for a strategic approach to waste crime, to be published in a new resources and waste strategy. It is intended that the review will:

  • consider the extent and nature of crimes being committed, and the types of organised crime groups involved;
  • consider the environmental, community and economic impacts of serious and organised waste crime;
  • consider how the Environment Agency is responding to the threat;
  • consider the ability of the Environment Agency, other organisations, and the law enforcement system as a whole, to work together to tackle the threat;
  • make recommendations for a strategic approach to serious and organised waste crime; and
  • make recommendations for the future direction of work.

At present, an online questionnaire consisting of 18 questions has been published. The questions are phrased in an extremely open manner and leave themselves open to a wide range of responses. For example, question 16 reads:

“16. What would most help develop effective partnerships to tackle serious and organised waste crime?”

This doesn’t indicate that DEFRA have, at this stage, fully grasped how they should attempt to tackle the problem of organised waste crime or at this stage have any initial views on a clear strategy. No doubt they would respond that identifying the most effective method of combating waste crime and its protagonists is part of why this review has been launched.

The questionnaire can be found here

 

No More Reliance on Non-Reliance Clauses?

Misrepresentations in enquiries before contract and non-reliance clauses revisited.

Many readers of this blog are involved in the negotiation of transactions in which actual or potential environmental liabilities loom large. The recent decision of the Court of Appeal in First Tower Trustees Ltd. v CDS (Superstores International) Ltd [2018] EWCA Civ 1396 is of importance to all such practitioners.

CDS leased four industrial units which transpired to be so contaminated with asbestos as to be dangerous to enter. Before entering into the leases it had made enquiries before contract using the Commercial Property Standard Enquiries form. Enquiry 15 contained questions related to environmental matters, the gist of most of the answers given being to the effect that the buyer should satisfy itself. Enquiry 15.7 asked for details of actual or potential environmental problems, to which the answer given was that the landlords had not been notified of any such problems but, again, the buyer should satisfy itself. It was accepted that this was in fact a misrepresentation because, whilst true at the date of the actual reply, prior to exchange/completion the landlords had become aware of actual or potential asbestos contamination. The Enquiries imposed in their interpretation section an obligation upon the landlords to notify CDS of anything arising during the intervening period which might cause any reply to be incorrect. The landlords had not done so.

CDS sought damages for misrepresentation in reliance upon section 3 of the Misrepresentation Act 1967. The landlords invoked in response two principal arguments: (1) that the non-reliance clauses to be found in both the leases and agreements for leases applicable to the various units were “basis of contract” clauses delimiting the parties’ primary obligations in a manner which prevented section 3 being engaged at all (2) that even if section 3 was engaged, the non-reliance clauses had the effect of excluding liability. CDS in return alleged that the clauses failed to satisfy the requirement of reasonableness found in section 11 of the Unfair Contract Terms Act 1977.

Both the deputy High Court Judge and the Court of Appeal found in favour of CDS. The judgments of both Lewison and Leggatt LJJ (with both of whom Sir Colin Rimer agreed) are lengthy and repay full reading. In essence the court held (1) that the non-reliance clauses did engage section 3 of the 1967 Act and thus the test of reasonableness in section 11 of the 1977 Act; (2) that the non – reliance clauses did not satisfy the requirement of reasonableness.

At the heart of the first conclusion was the proposition that the liability under section 3 is a statutory liability arising by operation of law independently of anything in the contract which was induced by the representation. As to the second, having considered all the relevant factors, Lewison LJ concluded that: “Although there might be a case where, on exceptional facts, a clause which precludes reliance on replies to enquiries before contract might be held to satisfy the test of reasonableness even where those replies have in fact been relied on, I find it very hard to imagine what those facts might be.”

This significant decision, which at the very least severely curtails the scope for deployment of any “basis of contract” argument in this context and further strongly protects the integrity of the process of enquiries by contract, seems likely to lead, either in the case under consideration or some future one, to a visit to the Supreme Court to settle the matter and to clarify the relevant legal principles, which are of very widespread application.

The full judgments can be found here.

 

To keep up-to-date 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

 

Friday 13th July – Regulatory Law Conference 2018 (Birmingham)

Six Pump Court is very pleased to be hosting its Regulatory Law Conference 2018 which will take place in Birmingham on 13th July. The event will cover a variety of topics providing essential updates on specialist areas, informative discussion on topical issues and practical tips for those acting in regulatory matters. Click here for more information and to book.

Environmental Law News Update

In this latest Environmental Law News Update, William Upton, Mark Davies and Antony Bartholomeusz consider new UK air quality regulations, the appointment of a Government ‘Tree Champion’, and environmental amendments to the EU Withdrawal Bill

 

Dodging Air Quality vehicle limits?

Horse. Stable door. Bolted. These are some of the words that come to mind when reading the new UK regulations regarding banning the use by manufacturers of cheat devices in vehicles, and giving ‘real world’ fuel consumption information. The Road Vehicles (Defeat Device, Fuel Consumption and Type Approval) Regulations 2018 were laid before Parliament on 8 June and come into force on 1 July 2018 (in the form set out in SI 2018 673 – which picks up errors in the earlier published SIs Nos.235 and 236).

These UK Regulations help implement the European measures (in Commission Regulation (EU) No. 2017/115). Leaving aside the irony that this has been brought forward on a European basis, it is worth noting that this is part of a global effort to improve vehicle testing. The basis of the official fuel consumption test will be changed from the “New European Drive Cycle” (NEDC), which uses theoretical driving data, to the “Worldwide Harmonised Light vehicle Test Procedure” (WLTP) which is intended to better match on-road performance. In other words, it has finally been accepted that the laboratory tests created in consultation with the motor industry in the 1980s are out of date.

These Regulations do not address past sins, although the Government announcement does refer to the events surrounding the revelations in 2015 that Volkswagen had been using software which caused their car engines to behave differently during emissions tests. These events are beginning to play out in civil litigation. In the UK itself, a Group Litigation Order has just been granted for a class action against Volkswagen, see here. There are already some 60,000 claimants, and new claimants have been given until October to join this Group litigation. There is clearly a Consumer Protection issue that needs to be resolved.

Clearly, there is a real world attraction to using these cheat devices. Nor is the temptation to use them limited to the manufacturers. One recent decision of the Traffic Commissioner has shown that a particular waste haulage company in Wales bought and used AdBlue cheat devices in 20 of its HGVs for over 3 years. The Transport Manager has been disqualified and the company reprimanded.

 

William, Champion of the Trees

On 13 June Michael Gove appointed Sir William Worsley, current Chair of the National Forest Company, as the Government’s Tree Champion, thus fulfilling a key commitment of the 25 Year Environment Plan. The role’s stated objectives are to ‘promote the benefits of trees and forests, support manifesto commitments and targets, and drive a step change in tree planting’.

The manifesto commitments the Tree Champion will seek to support are:

  • The planting of 11 million trees;
  • The planting of a further 1 million trees in towns and cities;
  • The strengthening of protection for ancient woodland through the planning system; and
  • The introduction of a new duty for local councils to consult before felling.

With tree planting in England reportedly at its lowest for a generation, support for the Government’s promises to plant more trees is welcome. Readers may well remember that the Government has already committed around £6 million to commence the creation of a ‘Northern Forest’ along the M62 corridor. Interestingly that project aims to plant 50 million trees between Liverpool and Hull over the course of the next 25 years, which puts into perspective the goal of planting 11 million (12 including those in towns and cities) trees by 2020, which is what the Government’s manifesto commitment the Tree Champion will be championing actually is.

To achieve these commitments, the Tree Champion is to bring together mayors, city leaders and other key players across local government.

Money was available this year through grant schemes (snappily titled the Countryside Stewardship Woodland Creation Grant 2018) to assist landowners in ground preparation, tree planting, fencing and tree protection. Whether the scheme will be available next year remains to be seen, although given the Government’s commitments it would appear likely.

Ally that grant money is likely to be available with the fact that management of commercial woodland has historically enjoyed, and continues to enjoy, tax relief, and forestry is rather an attractive prospect. Money may not grow on trees, but growing trees might save you a penny or two.

 

Environmental amendments to the EU Withdrawal Bill

The return of the European Union (Withdrawal) Bill to the House of Commons has seen the government try to reassert control over the text of the Bill after several amendments were made by the House of Lords.

The Lords inserted an amendment entitled “Maintenance of EU environmental principles and standards” into the Withdrawal Bill. This amendment would place a duty upon the Secretary of State to take steps to ensure that Brexit does not result in the ‘removal or diminution’ of any aspects of EU law that “contribute to the protection and improvement of the environment.” Although not absolute, this obligation is extremely broad in scope. It may encompass more than what is usually thought of as EU environmental law, since other aspects of EU law such as regulatory standards and enforcement procedures may also be said to contribute to environmental protection.

The Lords amendment would also have required the Secretary of State, within six months, to publish proposals for primary legislation to require public authorities to apply the principles currently contained in EU law. Those principles ‘include’:

  • the precautionary principle as it relates to the environment
  • the principle of preventive action to avert environmental damage
  • the principle that environmental damage should as a priority be rectified at source
  • the polluter pays principle
  • sustainable development
  • prudent and rational utilisation of natural resources
  • public access to environmental information
  • public participation in environmental decision making
  • access to justice in relation to environmental matters

The proposals for primary legislation would also establish the body that is to take over the role of the European Commission in monitoring the compliance of public authorities with environmental law. The Secretary of State is required to consult various stakeholders, including farmers and environmental NGOs, before publishing the proposals.

The Commons disagreed with this amendment and instead proposed an amendment backed by the government. The most significant difference between the two amendments is the absence of the duty upon the Secretary of State to prevent the ‘removal or diminution’ of EU environmental law in the Commons amendment. Beyond that, the two amendments are similar. The Secretary of State is required to publish a draft bill containing the aforementioned environmental principles. The draft bill would also establish a body to monitor compliance with those principles. Interestingly, this body is to be tasked with monitoring only ministers rather than all public authorities. The draft bill would also require the Secretary of State to publish a statement of policy – perhaps functionally similar to the National Planning Policy Framework – in relation to the application and interpretation of those principles by ministers. The duty to consult prior to publication is also not mentioned in the Commons amendment.

The Commons amendment is really a statement of intent by the government, since the environmental principles it lists cannot be legally enforced before the courts. The government accepts that the EU environmental principles will form the starting point for post-Brexit environmental law, although once the draft legislation is published it will clearly be possible for the government to modify the draft bill prior to introducing it as a bill before Parliament. It may be that other amendments, although not relating to the environment as such, have more environmental significance. An example might be the amendment proposed by the Lord Bishop of Leeds, which makes it plain that the UK could still replicate EU law and participate in EU agencies post-Brexit. Whether, of course, the government (and, in the case of EU agencies, the EU) will agree to that is another matter.

 

To keep up-to-date 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

Six Pump Court is delighted to be one of the main sponsors of the 30th Annual UKELA conference, which is being held this coming weekend in Canterbury. The state of environmental law is in a rather different place compared to 1988. We look forward to seeing some of you there!

 

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Laura Phillips and Mark Davies consider new priorities identified by the Environment Agency, a promise by Thames Water to pay £120m to customers for inadequate management of leakages, and recommendations from the Environmental Audit Committee for Mandatory Climate Risk Reporting by 2022.

 

Environment Agency Identifies its New Priorities

To its statutory purpose (s.1, EA 1995), functions (s.2, EA 1995), aims and objectives (s.4, EA 1995), duties (various, EA 1995) and powers (various, EA 1995), the Environment Agency has now added a (non-statutory) updated statement of its ambition, vision (“to create a better place for people and wildlife”), principles (“put people and wildlife first”, “focus on the 20% that makes 80% of the difference” and “support local priorities”) and culture. These are set out in its recent publication “Creating a better place: Our ambition to 2020”.

The publication expresses its support for the Government’s recent 25 Year Environment Plan, launched in January 2018. There is a strong and welcome emphasis upon the Environment Agency’s sense of local involvement and a statement of planned improvements in areas including targets for 2018/19 for water quality, control of pollution, flood and coastal defence and creation of new habitats. The consequences of climate change are high on the agenda.

Whilst none of it is written in terms that are likely to provide material for legal practice, the short publication makes interesting reading. It is to be found here

 

Thames Water to pay £120m to customers for inadequate management of leakages following Ofwat investigation

Thames Water has agreed to pay a total of £120m to customers over the next two years (£65m plus £55m in early payment of automatic penalties incurred from missing its commitment to cut leaks) as a result of Ofwat’s findings that it has breached its legal obligations in relation to its management of leakage reduction. It has also committed to improvement measures to meet the performance commitments set by Ofwat for the remainder of the 2015-20 period.

In light of the agreement Ofwat proposes to impose a nominal penalty (under section 22A (1) (a) of the Water Industry Act 1991 (“WIA”)) of £1 in respect of the breaches.

Ofwat is the economic regulator of the water sector in England and Wales. It has powers and duties under the WIA to regulate performance (including setting performance commitments) and to investigate and enforce against water companies and water supply licensees.

Ofwat’s investigation determined that Thames Water had breached its duties under section 37 of the WIA (the duty to maintain an efficient and economical system of water supply within its area) and the condition of its water license requiring it to have adequate management resources and systems of planning and control in relation to its management of leakage. It found that the breaches, which resulted in the company’s failure to meet its commitment to reduce leakage in 2016-17, which were “largely due to how Thames Water designed and implemented its contractual arrangements for reducing leakage” were negligent, rather than deliberate and that Thames Water had “insufficient oversight and control” of its leakage performance.

The details of the investigation and findings are here in the notice of the proposed penalty.

 

The Environmental Audit Committee Recommends Mandatory Climate Risk Reporting by 2022

On 4 June 2018 the House of Commons Environmental Audit Committee published its Seventh Report of Session 2017-19, ‘Greening Finance: embedding sustainability in financial decision making’. The report will be of interest to businesses, their investors, including pension funds, and regulators alike.

The report notes that ‘Sectors and companies that do not make a timely low-carbon transition may face costly regulatory or legal action as the world implements the Paris Agreement’, but that currently, ‘many financial institutions, businesses and regulators continue to ignore the financial risks and opportunities associate with climate change and other sustainability issues’.

What the report proposes as a measure to solve the reluctance of the UK investment chain to engage with the impact that climate change and other environmental problems pose to our economy is to make climate reporting (on both risk and opportunity) mandatory on a ‘comply or explain’ basis by 2022.

The basis for the mandatory reporting requirement is, it is argued, already to be found in section 172 of the Companies Act 2006, which requires disclosure by companies of climate change risks where they are financially material under section 414C (insofar as their strategic reports must contain ‘a description of the principal risks and uncertainties facing the company’).

What the report goes on to propose is that Government guidance should be issued to make the obligation under section 172 more apparent in relation to climate change risk reporting, whilst also amending the Financial Reporting Council’s ‘Corporate Governance Code’ and ‘UK Stewardship Code’ and the Financial Conduct Authority’s listing rules to highlight the same.

The UK are sadly behind the times in this area with France having already implemented mandatory climate change related reporting by way of its much-heralded Article 173, which came into force in January of 2016. Article 173 includes a requirement to report on how environmental, social and governance (ESG) factors are incorporated into investment policies; whilst this is not yet a mandatory requirement for investors in the UK, the advent of the Non-Financial Reporting Directive means that investors would be wise to consider their position regarding ESG, and the need to report on it.

The full report can be downloaded here.

We published May’s Environmental Law Video Newscast recently – a monthly round-up of the latest developments in environmental law.

To keep up-to-date 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 considers the Mayor of London’s Environment Strategy, publication of CCS guidance from the Environment Agency, and new EU rules to reduce marine litter.

 

London Environment Strategy published

The Mayor of London has published the long-term green strategy for London. It’s a high level document, but the key headlines include:

  • London is to become a zero carbon city by 2050;
  • London’s green spaces are to be analysed using a Natural Capital Account to identify their true economic value;
  • All new buildings are to be zero carbon from 2019;
  • Zero emission zones will be in place by 2020;
  • By 2026 no biodegradable or recyclable waste will be sent to landfill;
  • By 2030 65% of London’s municipal waste will be recycled;
  • London’s entire bus fleet will be zero emission by 2037 at the latest;
  • Expansion of Heathrow airport is to remain opposed.

The proposal for zero emission zones to be in place by 2020 has been brought forward by five years, prompting concerns that business fleets will not have sufficient time to change, although it will be open for business to apply for an exemption during peak times.

The Mayor of London has also published an Implementation Plan which is intended to set London-wide trajectories for quantitative targets. These include:

  • 40% reduction in nitrogen oxides by 2020 compared to a 2013 baseline;
  • Carbon budgets;
  • Local authorities to be set minimum recycling standards in 2020;
  • The setting up of an electric vehicles taskforce to encourage the adoption of electric cars.

The Strategy is not without gaps. For example, no target is set for the implementation of tree and green cover to 2050 as this is described as opportunistic and reliant on the market. Significant increases in recycling performance is also required to meet the ambitions of the plan, another area where the Mayor of London has very limited direct powers and responsibilities. There is also little by way of concrete steps to address ambient noise.

The full Strategy can be found here

 

Environment Agency publishes CCS guidance

The Environment Agency has published guidance to its regulatory officers on how to record non-compliance with environmental permits using the Compliance Classification Scheme (“CCS”).

The Guidance sets out five key principles, on which we have set out a little more information derived from the document

  1. All non-compliances should be recorded, regardless of regime or impact. An indication of categorisation should be given to the operator before the Environment Officer leaves the site.
  2. For amenity conditions relating to odour, dust, noise, pests and litter, non-compliance is categorised based on actual impact. For all other conditions, non-compliance is categorised based on an assessment of what level of impact is reasonably foreseeable, using experience and common sense
  3. Environment Officers must identify the “root cause” of non-compliances. Non-compliance is described as often a symptom of poor management.
  4. Where multiple non-compliances are recorded, the CCS scores can be consolidated. Doing so will remove the potential for an unfair impact on the compliance rating of the facility and avoid having to complete unnecessary paperwork;
  5. CCS scores can be suspended, but only after the non-compliance has previously been identified and the operator is working towards compliance.

The Guidance makes for interesting reading. It is intended to improve consistency in regulation, focus resources on activities that pose the greatest risk to the environment and ensure that subsistence charges reflect the work done by the Environment Agency with operators.

CCS is not used to record any problems at exempt facilities or any other offences that are not a breach of a permit condition.

The Guidance can be found here

 

New EU rules to reduce marine litter

On 28 May the European Commission proposed new EU-wide rules to target the 10 single-use plastic products most often found on Europe’s beaches and seas, as well as lost and abandoned fishing gear. Together these constitute 70% of all marine litter items.

The new rules will introduce:

  • Plastic bans for certain products, including plastic cotton buds, cutlery, plates, straws, drink stirrers and sticks for balloons, where alternatives are readily available and affordable;
  • Consumption reduction targets, to require Member States to reduce the use of plastic food containers and drinks cups;
  • Obligations for producers, to help cover the costs of waste management and clean-up;
  • An obligation on Member States to collect 90% of single-use plastic drinks bottles by 2025;
  • Clear and standardised labelling to indicate how waste should be disposed, the negative environmental impact of the product and the presence of plastics;
  • An obligation on Member States to raise consumer awareness of the negative impact of littering of single-use plastics.

Producers of plastic fishing gear will be required to cover the costs of waste collection from port reception facilities and its transport and treatment. They will also cover the costs of awareness-raising measures.

The Commission’s proposals will now go to the European Parliament and Council for adoption. Both have been urged to deliver tangible results before elections in May 2019.

 

We published May’s Environmental Law Video Newscast last week – a monthly round-up of the latest developments in environmental law.

To keep up-to-date 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