Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Mark Davies consider the environmental implications of yesterday’s Budget, a consultation between the FCA and the PRA on climate change and finance, and a recent case holding that an EIR request was “manifestly unreasonable”.

 

Budget weak on environmental policies

This was not a Budget for environmentalists. £60 million promised to be spent on planting millions more trees was dwarfed by plans to spend £30 billion on roads. Little mention was made of climate change, with no fresh environmental policies on how to tackle the growing problem and the decision was made not to impose any form of levy on disposable cups. One newspaper described the £10 million pledged to tackle dumped waste as “money found down the back of the sofa”.

Key highlights include:

  • As part of the strategy on tackling single-use plastic waste, the government will introduce a new tax on plastic packaging. Subject to consultation, this will mean that packaging that does not contain enough recycled content will be taxed.
  • Reforming the Packaging Producer Responsibility System, aiming to increase producer responsibility for the costs of their packaging waste, including plastic. The system will provide an incentive for producers to design packaging that is easier to recycle.
  • Should wider policies not deliver on the ambitions of the government in respect of waste, it will consider the introduction of a tax on the incineration of waste, in conjunction with landfill tax.
  • A levy on disposable coffee cups was not considered to be effective at encouraging reuse. Government expects industry to go further than the current initiatives and will return to the issue if sufficient progress is not made.
  • A government pilot scheme will make available up to £10 million to the Environment Agency to work with partners to clear the worst abandoned waste sites that blight local communities.
  • A Woodland Carbon Guarantee scheme will be set up to support the planting of around 10 million trees by purchasing up to £50 million of carbon credits for qualifying tree planting. In addition, £10 million in funding will be provided between 2019-20 and 2022-23 for local community street trees and urban trees.
  • In the event that the UK leaves the EU without a deal, a rate of £16 will be applied to each tonne of carbon dioxide emitted over and above an installations emissions allowance, to be based on the installation’s free allowances under the EU ETS.
  • £13 million will be allocated to tackle risks from floods and climate change.

Much has been made of the fact that this Budget is highly dependent on a decent Brexit deal being reached. A no-deal departure from the EU will almost certainly lead to this Budget being ripped up and a whole new budget being produced in the spring. The level of uncertainty may be the principal reason for the lack of detail, with further commitments to be found in the Resources and Waste Strategy, due to be published later this year.

However, it is impossible to escape the feeling that the government is highly dependent on the role of the private sector to spearhead environmental progress through innovation and R&D and that it is lacking any form of concrete plan on just how to meet the UK’s environmental obligations in the future, particularly in areas such as climate change.

 

FCA and PRA discuss and consult on climate change and finance

In the last two weeks both the Financial Conduct Authority and the Prudential Regulation Authority (one of the successor bodies to the Financial Service Authority) have issued papers concerning the impact of climate change on finance.

The FCA’s Discussion Paper, ‘DP18/8: Climate change and green finance’, published on 15 October 2018, invites comments through until 31 January 2019 and notes as its opening words, “Climate Change presents a potentially irreversible threat to the planet,” and that, “Climate Change is likely to have a significant impact on the UK’s economy and financial services market.”

The Discussion Paper goes on to consider the FCA’s future role in ‘providing more structure and protection to consumers’ for ‘green’ financial service products, as well as considering questions of green taxonomy, green disclosure and green performance measurement. The FCA recognises its role as developing in three ways in relation to these issues:

  • Ensuring that issuers of listed securities on the regulated market are meeting their disclosure obligations, including those arising from climate change risks;
  • Ensuring the 18,000 firms it regulates have adequate controls in place for considering risks, including those posed by climate change and the challenges faced by transitioning to a low carbon economy; and
  • In protecting consumers and market integrity, including ensuring that those seeking green finance products are appropriately protected.

Views are invited from: consumers groups and individual consumers; charities; industry groups/trade bodies; regulated firms; policy-makers and regulatory bodies; industry experts and commentators; and academics and think tanks.

The PRA’s Consultation Paper (snappily titled ‘Enhancing banks’ and insurers’ approaches to managing the financial risks from climate change’…), also published on 15 October 2018, seeks views on a draft supervisory statement on banks’ and insurers’ approaches to managing the financial risks from climate change.

The purpose of the proposals set out in the Consultation paper is to ‘set out how effective governance, risk management, scenario analysis, and disclosures may be applied by firms (meaning both insurers and banks) to address the financial risks from climate change’.

It is hoped that by issuing the supervisory statement the PRA will cause firms to take a ‘strategic approach to managing the financial risks from climate change’, including current risks and plausible future risks.

The draft supervisory statement sets out the PRA’s expectations as to how firms will:

  • Embed the consideration of the financial risks from climate change in their governance arrangements;
  • Incorporate the financial risks from climate change into existing risk management practice;
  • Use (long-term) scenario analysis to inform strategy setting and risk assessment and identification; and
  • Develop an approach to disclosure on the financial risks from climate change.

Views are invited from all UK insurance and reinsurance firms and groups, banks, building societies and PRA-designated investment firms until 15 January 2019.

Insofar as NGOs have already started referring large companies to the Financial Reporting Council (see this Blog’s entry of 24 September 2018 and the story about ClientEarth) for failing to properly address climate change risks in corporate reports, those invited to express their views would be well-advised to do so, if only to ensure their voices are heard when the changes are rung in relation to greening finance.

The FCA report may be found here

The PRA report may be found here

 

First-tier Tribunal (Information Rights) holds that an EIR request was “manifestly unreasonable”

In Scott v Information Commissioner & Kirby Muxloe Parish Council [2018] UKFTT 2018_0054 (GRC), the First Tier Tribunal considered circumstances that led it to uphold a decision that requests for environmental information were “manifestly unreasonable”.

The Appellant had, politely, requested surveyors’ reports concerning the lease of a recreation ground from Kirby Muxloe Parish Council. This request was rejected and that rejection had been upheld by the Information Commissioner.

The background was extensive. The Council had previously rejected 49 recent requests from three residents between August 2014 and April 2017, which were often extensive with follow up emails and letters from solicitors, creating a burdensome situation for the Council. Immense stress had been caused to parish councillors and the parish clerk leading to staffing difficulties and an adverse effect on the operating of the Council. The Council took the view that the three residents were working in concert to disrupt the workings of the Council. The Information Commissioner had upheld these rejections.

It was directly relevant that the Appellant had previously written to the Council as a “consultant” on solicitor headed notepaper in which he referred to concerns about the way the Council had been run, that he had been asked to advise some of the parishioners and had raised many concerns relating to the recreation ground.

The Commissioner came to the view that the Appellant was either acting on behalf of the three individuals or in concert with those other individuals. It stated that all the information had to be taken into account in deciding manifest unreasonableness, even where the request was ‘specific, of value, and unlikely to be burdensome in isolation’.

The First Tier Tribunal upheld the decision of the Information Commissioner that the request was “manifestly unreasonable” for the following reasons:

(a) The request continued and exacerbated the burden on the time and the resources of the Council already caused by the Appellant’s clients and others he had worked closely with;

(b) It was likely that the Appellant would not be satisfied and this would lead to further requests;

(c) The request by the Appellant was part of the activity of a group of people who persisted unreasonably in pursuing issues;

(d) The Appellant and others had taken an unreasonably entrenched position;

(e) There were other on-going investigations into the same issues which exacerbated the burden on the Council;

(f) The public interest in disclosing the material was outweighed by the burden and stress placed on the Council by a manifestly unreasonable request.

The decision is particularly interesting because of the fact that the wider picture outweighed the simplicity of the request. The Appellant’s request was characterised by the Commissioner as an attempt to pursue a campaign against the Council by another avenue and was therefore an improper use of a formal procedure. The fact that the request had been made politely did not mean that it was reasonable.

It is also directly relevant that this was a small parish council and therefore susceptible to finding such requests burdensome. Similar considerations are likely to apply to smaller public authorities.

The full judgment can be found here

 

We published October’s Environmental Law Podcast 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 Podcast – October 2018

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

This short update focuses on October’s key legal developments, which this month include environmental permit breaches for Healthcare Environmental Services Ltd concerning the treatment of clinical waste, classifying, labelling and packaging of chemicals post-Brexit, and the government’s request for guidance from the Committee on Climate Change on how to move to zero emissions of greenhouse gases.

Please find October’s podcast below:-

 

Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Nicholas Ostrowski consider an Environment Agency prosecution involving confiscation orders of over £250,000, chemical regulation in the event of a no-deal Brexit and a recent case demonstrating that actions in statutory nuisance need not have an interest in land.

 

Environment Agency obtains confiscation orders in excess of £250,000

On 9 October at Sheffield Crown Court, Andrew Green and Dean Ryder were given suspended prison sentences and made the subject of hefty confiscation orders.

The two men ran Grantscope Ltd.  The company went into liquidation in September 2012 after it failed to comply with a Regulation 36 enforcement notice served by the Environment Agency in February of that year, following the illegal deposit of waste outside the company’s permitted Goodwin’s Yard site in Barnsley. The company’s environmental permit was subsequently revoked but despite this the defendants continued waste operations, including processing waste into trommel fines which were then bagged up to be sold as topsoil.

A waste pile of nearly 13,000 tonnes was accumulated before being abandoned.

The men were convicted of depositing waste outside the permitted area in December 2011, operating a regulated facility except under and in accordance with an environmental permit between November 2012 and May 2013 and failing to comply with the Regulation 36 notice.

The benefit figure was found to be £276,000 in equal share. Dean Ryder’s confiscation order was made in the sum of £138,002 because he had sufficient assets. Andrew Green’s assets were more limited, resulting in a slightly reduced confiscation order of £121,422.

The company and Dean Ryder had been prosecuted before, back in January 2012, for repeatedly burning waste in breach of its environmental permit. On that occasion, well in advance of the publication of the Definitive Guideline, the penalties imposed were significantly less – Grantscope Limited was fined £10,000 and Dean Ryder fined £5000 despite the deliberate nature of the offending and its financial motivation.

Issues surrounding the corporate veil are unlikely to have been relevant in this case due to the liquidation of the company. Apportionment is likely to have been relevant. In principal, there appears to be no reason why both men would not have been liable for the full amount, on the assumption that the Environment Agency were able to show that the benefit figure had been jointly obtained.

The Environment Agency’s press release can be found here

A previous press release relating to the 2012 prosecution can be found here

 

Chemical regulation in the event of a no-deal Brexit

On 12 October the Government published a number of additional guidance documents on what will happen in the event of a no-deal Brexit. One relates to the classifying, labelling and packaging of chemicals.

It is proposed that the UK would establish an independent standalone chemicals regime, effectively adopting current arrangements and basing the regime on the existing EU regulatory regime in order to provide continuity for businesses. Functions currently carried out by EU bodies, including the European Chemicals Agency, would be carried out by the Health and Safety Executive.

The particular changes that will result from Brexit that were highlighted include:

  • Companies importing chemicals into the UK from EU countries would become “importers” and need to be sufficiently competent to comply with the duties and obligations on an importer;
  • Submissions of notifications of classifications of chemicals would be made to the HSE;
  • The HSE will have the ability to put in place new arrangements for mandatory classification and labelling;
  • Companies will be required to use IT tools provided by the HSE;
  • The UK will be free to make its own decisions about chemical hazard classification, including whether or not to align with decisions made in the EU.

Unsurprisingly, the guidance doesn’t engage with the cost concerns that inevitably result from having to have two systems in the UK and the EU, nor the fact that any company wishing to place products on the EU market will still have to comply with REACH, irrespective of the position taken by the UK on chemical hazard classification. There is no consideration of just how difficult it will be to ensure that the HSE is ready on Brexit day or the difficulties identified by the Environmental Audit Committee in transposing the chemicals regulation framework into UK law: see link here

The unfortunate impression given by the repeated publication of guidance notes lacking any level of proper detail is that a no-deal Brexit will inevitably result in a chaotic lurch into a regulatory crisis. Uncertainty continues to prevail. For the chemical industry, this is particularly unfortunate. Market access depends on regulatory compliance. Critically there is no reference in the guidance note to the status of current REACH registrations post Brexit and the resulting impact that Brexit may have on access to the EU market.

The guidance note can be found here

 

Actions in statutory nuisance need not have an interest in land

The expert readers of this blog will know that to bring a claim in common law nuisance a proprietary interest in the land is required (Hunter and Others v Canary Wharf Ltd and Hunter and Others v London Docklands Corporation [1997] AC 655), and such claims are normally brought by the freeholder or tenant of the land in question.

However, in Watkins v Aged Merchant Seamen’s Homes & Anor [2018] EWHC 2410 (Admin) the High Court considered what interest in land was required for an action in statutory nuisance to be brought.

In this case Ms Watkins occupied as a licensee an almshouse owned by the respondent charity. In January 2017 the charity, served notice to quit, expiring a month later in February 2017.

In September 2017, Ms W laid an information before the Magistrates Court complaining of a breach of section 79 Environmental Protection Act 1990 (‘EPA 1990’) complaining that the flat in question was in such a state as to be prejudicial to health or a nuisance due to pervasive damp in the building. She brought proceedings herself on the basis that she was a ‘person aggrieved’ under S.82 EPA 1990.

In November 2017, a possession order was made requiring Ms Watkins to give up possession on 1 December 2017. Ms Watkins however remained in occupation after 1 December 2017 unlawfully.

At the Magistrates hearing of the claim in statutory nuisance on 11 December 2017 (i.e. after the date when possession was required), the magistrates dismissed the case. Although the High Court subsequently criticised the magistrates’ reasoning, in essence, the magistrates did so because, as she had no right to be on the premises, Ms Watkins had no standing to bring a statutory nuisance claim as she was not a ‘person aggrieved’.

Ms Watkins appealed by way of case stated and the High Court (Kerr J) who said (at [41] – [42]):

In my judgment, the question is always one of fact and degree; but ordinarily, a person in actual occupation when the complaint is made would be aggrieved for the simple reason that she is occupying the premises and at risk of prejudice to her health if they are in a state that constitutes a statutory nuisance.

Having said that, a person in actual occupation might in an unusual case be treated as a mere busybody and not a person aggrieved. For example, the grievance might be found not to be genuine if a complaint were made for obviously tactical or abusive reasons; for example, in the full knowledge that the property in question is about to be demolished; or, possibly, where the occupier is shown to be about to leave the property permanently and has no genuine concern about its condition.

For a number of specific reasons in this case (principally because Ms Watkins was vigorously challenging the possession proceedings and there was a bona fide dispute between the parties), the High Court found that Ms Watkins was a ‘person aggrieved’ and was entitled to bring a claim in statutory nuisance against the almshouse charity.

In essence therefore the High Court has now confirmed that if someone is in actual occupation, even if that occupation is not lawful, then they may be able to bring a complaint in statutory nuisance. This could have significant consequences as it means that a group of environmentally-minded protesters who are unlawfully squatting near an environmentally-unfriendly premises could then lay a complaint under S.82 EPA 1990 (and may also persuade a local authority to serve an abatement notice under S.80 EPA 1990) which, if successful, could entirely prohibit works at the premises from taking place.

 

Please note there will be no update next week on 22nd October. The next update will be published on Monday 29th October.

We published September’s Environmental Law Podcast 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, Gordon WignallChristopher Badger, and Mark Davies consider the inadequate disposal of clinical waste, a Bank of England report on climate change and the banking sector, and a RoboCop for the environment.

 

Clinical waste: an unfinished story 

There has a been a great deal of press attention very recently about the treatment of clinical waste. Press reports indicated that a company with the obligation to deal with this waste had simply not been doing so, to such an extent that the COBRA committee had been convened.

This story points to many different roads of interest to environmental professionals.

The company was named in the press as Healthcare Environmental Services Limited (“HES”). It was also said that the company had difficulty in obtaining access to incineration infrastructure.

It is necessary to be cautious at this stage, since a great deal remains unclear. That in itself raises issues. Current notions are that openness is the friend of the environment. Openness is reflected in this instance by the Beta service provided by Companies House, BAILII and the Regulators’ public registers.

It is impossible, however, not to visit a side road in a little detail and to mention a recent procurement case, SRCL Ltd v. NHS Commissioning Board (NHS England) HT-2017-000169 (27 July 2018) (sourced via BAILII, but which came to the writer’s attention through the excellent blog Legal Futures).

The case is itself of interest to civil litigation practitioners because the judge criticised the decision of the claimant to call its own solicitor as a witness of fact, putting her in her own difficult regulatory position. The judgment is also well worth a read on the topic of the importance of Lists of Agreed Issues, which should be established by the time of PTR. If a matter is not in a list of issues it may well not be determined.

SCRL’s complaint was that HES, the successful auction bidder for a contract to deal with NHS waste, had won its bid by reason of an “abnormally low tender” (which had not attracted the correct level of scrutiny by NHS England).

During the procurement proceedings, the losing bidder (SRCL) complained that supposed incineration plant in Scotland was not operational, could not be commissioned at all and that it did not provide “incineration” because a process of pyrolysis was employed (paras.24-28 and 30).

SRCL also alleged in terms that “if HES won the contract, the waste would not be incinerated and would simply be stored or stock piled” (para.87).

The public register in England shows that HES has permits at three sites regulated by the EA. It is not possible to read the permits on-line. The enforcement page of the gov.uk website has four entries showing a breach of reg.36 reading “comply with conditions and remedy pollution”. These are from 7 March to 25 July. The fifth entry discloses a breach of reg.38 dated 25 July, a regulation which governs criminal offences. It is impossible to discover more.

Companies House shows that HES is Scottish, so that its main infrastructure is regulated by SEPA. The judgment shows that the plant in Scotland was where it was intended finally to dispose of the waste.

The judge dismissed the complainant’s allegations on what one might think was very slim evidence (see para.86). The judge himself was in a difficult position by reason of the way in which the claim had been presented to him.

The eagle-eyed reader will have noticed that the reg.38 proceedings were commenced two days before Mr Justice Fraser gave judgment.

A lot might be thought to follow from all this. One can only identify some questions. One is the state of the public registers and whether or not they disclose enough electronically (given obligations of confidentiality). Another is the extent to which SEPA and the EA are required and do communicate with each other about the provision of infrastructure and the extent to which a permit in one part of the UK can be met by infrastructure in another (this is an issue which constantly rumbles underneath the surface of the judgment). One might also ask whether a regulator should be invited to intervene in private law proceedings if there may be unintended consequences for the environment.

There is also the related question about the practical ability to meet climate change and waste aspirations. In the Waste (Scotland) Regulations 2012 the Scottish government has banned biodegradable municipal waste from going to landfill after 2020. If it is not possible to send biodegradable municipal waste to landfill and there really is a lack of incineration facilities, then how will governments ensure that waste of different sorts is not simply dumped, leading to a further increase in waste crime and economic and regulatory consequences for local authorities and innocent landowners?

 

Bank of England publishes report on climate change and the banking sector

On 26 September the Bank of England published a report on the impact of climate change on the UK banking sector. To compile the report, the ‘Prudential Regulation Authority’ (PRA) conducted a survey of 90% of the UK banking sector representing over £11 trillion in assets.

The report identifies two principal categories of risk factors – physical risks that arise from climate and weather-related events, including heatwaves, droughts, storms and sea level rise which can lead to large financial losses, impairing asset values and the creditworthiness of borrowers, and transition risks arising out of the process of adjustment to a low-carbon economy, for example changes in policy, technology or sentiment can result in a reassessment in the value of a large range of assets and create credit exposures.

The PRA has identified three broad categories that define how banks are responding:

  • 30% are being ‘responsible’, an approach primarily driven by Corporate Social Responsibility, focusing on reputational risks;
  • 60% are being ‘responsive’, where climate change is viewed as a financial risk, albeit from a relatively narrow, short term perspective;
  • 10% are being ‘strategic’ taking a more comprehensive approach on the long-term view of financial risks.

The report found that financial risks arising from climate change are sufficiently material to be considered at board level. As a consequence, the PRA will be setting out supervisory expectations for consultation that will focus on governance, strategy and risk management. In addition, a Climate Financial Risk Forum will be established, in order to share best practice and to build intellectual capacity.

Materiality of risks posed by climate change (and other environmental issues) is a current hot topic. This blog has already reported on several instances of organisations being referred to either the Financial Conduct Authority or the Financial Reporting Council for failing to properly address climate change in their annual reports.

The same report also identifies two particular needs to promote the required investment:

  • Green securitisation. By securitising assets, banks certify borrowers’ credit quality which will be pivotal to obtaining the necessary finance for energy transition and long-term sustainable infrastructure;
  • Green bonds. As underwriters, banks can provide capital market access for green bond issuers or can invest in the green bond market themselves.

The Bank’s report and proposals will be welcome news to those who have read about the worrying conclusions reached by the IPCC in its Special Report on Global Warming of 1.5oC of today’s date. The Report has restated just how much work is going to be needed on a global scale to tackle climate change to the levels required under the Paris Agreement.

The full report can be found here.

The IPCC Report, which will be covered in 6 Pump Court’s International Climate Change Blog in the coming weeks, may be found here.

 

A RoboCop for the environment?

On 5 October the Government announced the initial details of a new fund to back projects aimed at ensuring rules and regulations ‘keep pace with technological advances of the future’. The projects backed range from virtual lawyers to flying cars.

The 15 winning bidders of the £10 million Regulators’ Pioneer Fund are tasked with creating a regulatory environment that ‘gives innovative businesses the confidence to invest, innovate and deploy emerging technologies for the benefit of consumers and the wider economy’.

Where, you might ask, does our title (it is certainly not based on the 80s/90s film franchise RoboCop, thank you) for this piece come from in all of this? Sadly, not in the form of any proposed android enforcement officer tasked with taking down the worst waste criminals, but rather SEPA’s winning project, the ‘Decommissioning Regulatory Hub’.

SEPA’s project was one of two winners from the Clean Growth section (the other being Ofgem and its ‘Future Services Lab’) and it is proposed to provide a ‘safe, collaborative environment that supports industry to develop and test innovative new products and services in support of decommissioning’. It will reportedly, ‘bring together operating companies and multiple regulators from across the oil and gas industry and waste supply chain to address cross-cutting areas, share best practices, create innovative solutions and manage the associated risks’. So, whilst there is no plan for an Environmental RoboCop, at least there is a plan to utilise new technology in at least one area of environmental law.

It should be noted that the SRA have also been awarded money for their bid for ‘Data-Driven Innovation in Legal Services’, which, whilst aimed at ‘growing the underdeveloped legal services market for small businesses and consumers’, might come to have applications in the environmental field down the line. One example this author can think of is allying AI learning with satellite mapping data to identify illegal waste sites.

The full list of winning projects can be found here.

 

We published September’s Environmental Law Podcast 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, Gordon Wignall and Mark Davies consider a Scottish court’s decision concerning Article 50 and the TEU, the announcement of the UN’s 2018 Climate Action Award Project Winners and an update from DEFRA on the incursion of Asian hornets into the UK.

 

Article 50, TEU; what is a ‘reviewable decision’?

Andy Wightman MSP v. Secretary State for Exiting the European Union [2018] CSIH 62 (21 September 2018) is a decision of the Inner House of the Court of Session (the Scottish appeal court) by which the court drafted an expedited reference to be made to the CJEU to determine “whether, when and how the notification [under TEU Article 50] can unilaterally be revoked”.

The case is also of more general interest as to the constitutional role of the courts, and specifically, in daily practice, whether or not the courts can or should make declaratory decisions advising parties as to their legal rights.

The headline of the case is the making of the reference. The more general issue is a matter of importance to those who may want to know where they stand in relation to the policies and guidance issued by regulators such as the Environment Agency and local authorities. Related considerations which bite at the commencement of judicial review proceedings, are the questions whether or not a claimant has standing, whether there is a reviewable “decision” and then whether or not a claimant is out of time in a judicial review challenge.

Mr Wightman’s application to the court for a reference to the CJEU was deemed by the judge at first instance to be purely hypothetical and a breach of the privilege specifically due to Parliament as the state’s ultimate legislative body. It was purely ‘advisory’.

The appellate court reversed the decision of the judge, its constitutional and primary role being “to declare the law as it currently exists”.

So far as Mr Wightman and members of the legislature was concerned, it was considered right that they should have the benefit of a ruling from the CJEU. This was so that they could make informed decisions as to how to act when it comes to the ratification procedures now set out in s.13 of the Withdrawal Act.

The court’s wider proposition was that any citizen at all is entitled to seek a ruling from the courts as to a declaration as to the state of the law. Rules which now restrict that right have come into existence only as practical measures which, for the most part, are resource-driven.

The corollary to this is that a claimant might now invoke a wider, general, right of access to the courts, asking the defendant to demonstrate why that right should be restricted. The merits of such a restrictive approach, the Lord President said, are “inconsistent with the modern view of on the functions of court in the public law field”.

In particular, where an act or omission might have the consequence that a regulator would commence its enforcement powers, there is now a clear argument allowing an interested party to seek, in advance, the guidance of the High Court as to the meaning of the regulation, guidance or policy in question.

 

UN Announces 2018 Climate Action Award Project Winners

What do a fourth-tier English football league side and women composting ceremonial flowers on the River Ganges have in common? At first blush one could be forgiven for thinking nothing whatsoever, but both have been announced as recipients of this year’s ‘Momentum for Change’ climate action award by the UN along with 13 other projects.

The Momentum for Change award is spearheaded by the UN Climate Change secretariat and is designed to showcase how ideas, different in size, scope and effect can be used to tackle climate change. Patricia Espinosa, Executive Secretary of UN Climate Change summarised it thus: “These activities shine a light on scalable climate action around the world… They are proof that climate action isn’t only possible, it’s innovative, it’s exciting and it makes a difference.

So, what has a fourth-tier English football league side done to deserve the accolade? Well, Forest Green Rovers (whose Chairman is in fact Dale Vince, owner of the electricity company Ecotricity) has introduced many sustainability measures including solar panels, electric car charging points, an (all important) electric lawnmower and organic pitch, all of which has led to an absolute decrease in its carbon footprint of 3% since 2017 and a decrease in waste produced by the club in the 2017/18 season by 14.7%, as well as other environmental benefits. Given the staggering excesses of the modern-day beautiful game, you might feel it refreshing to see a club approaching its environmental responsibilities in this way.

At perhaps the other end of the spectrum in terms of wealth underpinning a climate change scheme but, as the award recognises, no less importantly, we have the HelpUsGreen ‘flowercycling’ scheme which aims to clean up the River Ganges by recycling flowers from temples and mosques. With an estimate of over eight million tonnes of flowers discarded into the river every year for religious purposes, the scheme has provided a solution whereby the waste is up-cycled to produce organic fertilisers, natural incense and biodegradable packaging. The 11,060 metric tonnes of waste up-cycled thus far has offset 110 metric tonnes of chemical pesticides that enter the river through the waste in the first place.

These schemes, and the 13 other projects, (which include sustainability focused investment schemes, food sharing projects and mangrove replantation and preservation) are laudable examples of the innovation that will surely be needed across the world to combat climate change in the years to come.

The full list of winners may be viewed here

 

An Environmental Law News public service announcement

Our final story this week relates to DEFRA’s update of 28 September 2019 on the incursion of Asian hornets into the UK.

The species, which is not native to the UK, is smaller than our native hornet. Whilst it poses no greater risk to human health than our native species, it does pose a risk to honey bees and other pollinating insects and therefore the Department is encouraging suspected sightings to be reported. The Department is therefore encouraging suspected sightings to be reported. Once a report is confirmed, experts from the National Bee Unit (yes, it’s a real thing) and the Animal and Plant Health Agency will, ‘work quickly to find and destroy any active nests in the area’, which all sounds terribly efficient.

To date DEFRA records nine confirmed sightings of the Asian hornet in England with five nests having been destroyed. Sightings in 2018 have ranged from Lancashire and Hull down to Hampshire and Cornwall.

So, how does one spot an Asian hornet? They have:

• A dark brown or black velvety body
• A yellow or orange band on the fourth segment of their abdomen
• Yellow tipped legs

They are also smaller than the native European hornet and are not active at night.

Now, what to do if you think you’ve spotted one? Quite simply, as with everything in this day and age, there’s an App for that (again, yes, it’s a real thing).

Full details on the App and full guidance on identifying Asian hornets may be found here, including specific steps for anyone who keeps bees.

 

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