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Environmental Law News

Posted on: 18 June 2018

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it has finally been accepted that the laboratory tests created in consultation with the motor industry in the 1980s are out of date.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.

 

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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!