Environmental Law News Update

In this latest Environmental Law News Update, Gordon Wignall, Natasha Hausdorff and William McBarnett consider the environmental implications of the UK/EU Withdrawal Agreement, the impact of climate change on flood claims, and a new consultation on the offshore civil sanctions regime.

 

The Environmental Implications of the UK/EU Agreement

Two documents were recently published by the Government: the Political Declaration Setting Out the Framework for the Future Relationship Between the European Union and United Kingdom (the “Political Declaration”) and the Draft Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (the “Withdrawal Agreement”) which is intended to accompany it. The aim of both is to set out a new partnership which is ambitious in scope, the parties also expressing a commitment to maintaining high levels of cooperation with regard to environmental matters whilst maintaining their decision-making autonomy.

Those searching for concrete commitments to maintain particular environmental standards will be disappointed. The Political Declaration sketches out a deliberately vague picture of what UK/EU relations should look like in the future and the Withdrawal Agreement provides little more beyond outlining a commitment to non-regression and stating that the environmental principles which currently apply to EU law shall continue to find expression in post-Brexit legislation.

Key points that arise from the Political Declaration are:

  • The Parties will retain their autonomy and the ability to regulate economic activity according to levels of protection each deems appropriate in order to achieve legitimate public policy objectives, including the environment. Whilst the economic partnership will recognise that sustainable development is an overarching objective of the Parties, this does not go as far as to commit the UK to mirroring EU environmental standards.
  • The future relationship must ensure open and fair competition. This will include provisions on environmental standards, to build on the “level playing field” provided for in the Withdrawal Agreement. The Political Declaration implies that market access for goods will be closely linked to deep “regulatory and customs cooperation”.
  • The Parties will explore the possibility of cooperation of UK authorities with Union agencies such as the European Chemicals Agency. This, however, doesn’t remove the need for a UK REACH system.

There are, however, several things that may be said in response to concerns that Brexit could be used to dilute or row back on current environmental standards. Firstly, the Government has committed to setting up an independent, Commission-like body which will have the power to take the Government to court. Secondly, s.16 of the Withdrawal Act 2018 commits the Government to a Bill consisting of, amongst other things, a series of environmental principles, the application and interpretation of which will be embodied in a statement of policy. Thirdly, under the Withdrawal Act 2018, ministers will gain a ‘correcting power’ to make statutory instruments to prevent, remedy or mitigate any ‘failure of’ or ‘deficiency in’ retained EU law. Fourthly, the Government has committed to upholding high environmental standards in relation to the signing of future trade deals.

 

Flood claims and climate change

Judgments from courts in specialist areas which do not decide points of principle are a publisher’s dream, but they are also the bane of what are known as ‘superior courts of record’ and are generally to be avoided.

However, all cases have to start somewhere, even if they are about snails in ginger beer bottles, and flooding cases are no different.

Legal doctrines concerning flooding are well known (to those who know them). A higher owner of land has no general duty to protect a downstream owner. Natural rainwater is a common enemy, and an upstream owner can protect its land, even though that may mean causing damage downstream.

These principles go back to the 1849 case of Smith v. Kenrick, in which the owner of the higher coal mine worked his mine knowing that he would release a subterranean lake which would flood and ruin the lower owner’s workings.

These principles sounding in nuisance, nothing of any real significance changed until Leakey v. National Trust [1980] 1 QB 485, when the Court of Appeal recognised the existence of a general ‘measured duty of care’, a duty limited in its scope (because a higher owner does not bring natural rainwater on to its land) and always subject to the defendant’s knowledge of the existence of the hazard and to the recognition that it must “fair, just and reasonable” to impose the duty (post Caparo v. Dickman).

The interchange between the old principle and the ‘Leakey’ duty has not been much worked out, possibly because no claimant with common sense and without a reasonable budget would even think about commencing a flooding claim without an expensive expert to comment on (and model) whether or not the flood event would have occurred in any event.

But what is the impact of climate of change, both on foreseeability and the extent of the duty?

A glimpse of these contemporary issues was had in the Northampton County Court recently, when an impressive array of experts was lined up, including one from HR Wallingford and WRc (Andy Drinkwater, aka “the Wet Wipes King”).

The chief issues for the judge were whether there had been an ‘escape’ from the weir at a large quarry upstream of the Claimant’s property during a flash flood in June 2012, and whether the quarry had any duty to protect the downstream landowner from rainfall which fell into, over and out of the quarry floor, some of it from the public highway via the works’ railway line.

Surprisingly, there has been a certain amount of climate change litigation recently (or rather of contemplated litigation) about water which has been released over a reservoir dam or lagoon weir. Generally, such a discharge of water should be seen as a controlled ‘escape’ designed to protect the reservoir or lagoon, and not evidence of an ‘escape’ falling within the principle of Rylands v. Fletcher.

Of much more interest, however, in this case, was the experts’ unscripted discussions about engineering standards for new builds and new housing developments.

If extreme flood events have become more common because what was a 1 in 50 year event is now to be seen as a 1 in 20 year event flood (say), then how does this affect foreseeability? If new claimant developments are to be built according to contemporary resilience standards, then how might this affect the extent of the duty of care – should one be imposed at all? What is the extent (or scope) of the ‘measured duty of care’ in such circumstances? And how are these factors to be assessed when times are so uncertain, with the result that what may be a 1 in 20 year storm event should, within five years, be considered a 1 in 10 year event?

Then there is the question as to how these issues should play out for pre-existing developments, given that in general a Court is interested in all the relevant factors taken into consideration together when assessing liability.

Fortunately for the trial judge in Northampton, she was not required to produce a judgment based on these detailed matters of opinion evidence. But the reflections of these able experts during their cross-examination at the hearing were a sign of the type of issues with which practitioners are likely to have to become much more familiar in future flood claims.

 

Consultation on Offshore Civil Sanctions launched

The Department for Business, Energy and Industrial Strategy (“BEIS”) and the Offshore Petroleum Regulator for Environment and Decommissioning (“OPRED”) have launched a consultation on the draft guidance to accompany the Offshore Environmental Civil Sanctions Regulations 2018 (“OECSR”).

The OESCR came into force on 1 October 2018 and allow OPRED to apply civil sanctions ranging from £500 to £50,000 for breaches of existing environmental legislation. No changes have been made to the existing criminal offences, nor have any additional offences been created, rather the Secretary of State has exercised existing powers, to provide for civil sanctions. This allows for the imposition of both fixed and variable financial penalties. The draft guidance that seeks (i) to explain the mechanics of OECSR, and (ii) to clarify how OPRED will apply the new financial civil sanctions on or after the 1 November 2018. The guidance annex includes a table outlining offences and the applicable civil penalties.

The OESCR relates to offshore platforms engaged in hydrocarbon-related activities, impacting the offshore oil and gas industry operating on the UK Continental Shelf or in relevant UK territorial waters. Under the new sanctions regime, alternative enforcement mechanisms in the form of Non-Compliance Penalties, Fixed Monetary Penalties, Variable Monetary Penalties or Variable Monetary Penalty Undertakings are available. These resemble the ‘Enforcement Undertakings’ utilised by other regulators, which readers will be familiar with.

According to the draft guidance, where the OPRED is satisfied that there is sufficient evidence to prove beyond reasonable doubt that an offence giving rise to a civil sanction has occurred, it will consider the proper sanction in light of (i) proportionality, (ii) targeting, (iii) consistency of approach, (iv) transparency, and (v) accountability. The OPRED will then consider each individual case against public interest factors including (i) intent, (ii) foreseeability, (iii) environmental impact, (iv) nature of the offence, (v) financial Implications, (vi) deterrent effect, (vii) previous history, and (viii) attitude of the offender.

The consultation poses questions relating to the approach and process for the OPRED to establish liability and fix the appropriate civil sanction and the information provided on the right to appeal and is open until open until 18 December 2018 click here.

 

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Environmental Law News Update

In this latest Environmental Law News Update, Gordon Wignall, William Upton and Christopher Badger consider environmental protections contained in the Draft Brexit Agreement, an independent review into the current system of waste regulation, and further requests to the ECJ for guidance on the Habitats Directive.

 

Environmental protections in the Draft Brexit Agreement

It may never be agreed by Parliament, but the Draft Brexit Agreement contains some relevant provisions on environmental protection as part of the back stop agreement if the Irish border issue isn’t agreed at the end of the transition period. If nothing else, the text is likely to help identify the EU’s minimum acceptable position moving forward to a future trading relationship. Relevant parts of the draft agreement are summarised in italics.

  • Non-regression in the level of environmental protection – page 356

The EU and the UK shall ensure that the level of environmental protection provided by law, regulations and practices is not reduced below the level provided by the common standards applicable within the EU and the UK at the end of the transition period.

The agreement then sets out a number of key environmental areas where standards are to be maintained, including for example waste management, air emissions, chemicals and climate change. The key question is how is it proposed that environmental protections will not regress. The text of the draft agreement places great emphasis on the effectiveness of the new independent environmental watchdog. However, the overarching system of dispute resolution may still have an important role to play.

Article 174 of the draft agreement states that where a dispute relating to this agreement raises a question of interpretation of a concept of EU law that cannot be resolved by the Joint Committee and consequently becomes an issue for arbitration, the arbitration panel has no power to resolve the issue of interpretation and a request must be made to the CJEU to give a ruling on the question, which is subsequently binding.

Key to the UK’s independent watchdog is the creation of a statement of policy that is intended to define and shape the interpretation of specific environmental principles that are enshrined in the Withdrawal Act 2018, all of which are EU principles. It was intended that this policy statement would interpret the relevant principles in s.16 of that Act. Some, but not all, of the relevant principles are set out in the draft agreement (page 357):

The EU and the UK shall respect the following principles in their respective environmental legislation:

(a) The precautionary principle;
(b) The principle that preventative action should be taken;
(c) The principle that environmental damage should as a priority be rectified at source; and
(d) The “polluter pays” principle.

There is no reference here to a principle of sustainable development, nor whether environmental protection requirements should be integrated into the definition of and interpretation of policies and activities, nor public participation in environmental decision-making. Public access to environmental information and access to justice in relation to environmental matters are also not referred to, although these are both key environmental areas where equivalence (set out above) must be maintained.

Therefore on the face of the draft agreement, even if the UK government would like to be able to shape important environmental tenets independently of the established EU interpretation, there appears to be scope for arguing that Article 174 provides for disputes over the interpretation of these European concepts of environmental protection to be referred to the CJEU for a binding judgment on their interpretation. The next relevant issue is who may make such a referral, discussed below.

  • Monitoring and enforcement related to environmental protection – page 359

The UK shall ensure that administrative and judicial proceedings are available in order to permit effective and timely action by public authorities and members of the public against violations of its laws, ensuring that sanctions are effective, proportionate and dissuasive and have a real and deterrent effect.

The UK shall implement a transparent system for the effective domestic monitoring, reporting, oversight and enforcement of its obligations … by an independent and adequately resourced body or bodies (“the independent body”).

The independent body shall have powers to conduct inquiries on its own initiative concerning alleged breaches by public bodies and authorities of the UK and to receive complaints for the purposes of conducting such inquiries. It shall have all powers necessary to carry out its functions, including the power to request information. The independent body shall have the right to bring a legal action before a competent court or tribunal in the UK in an appropriate judicial procedure, with a view to seeking an adequate remedy.

“Obligations”, read together with the requirement of equivalence to apply to environmental protection provided by “law, regulations and practices” ought therefore to extend beyond mere compliance with the letter of the law but also examine the manner in which laws are brought into practice and how they work in practice. This would be consistent with the current approach of the EU. Otherwise, if the “breaches” referred to are limited solely to violations of the law, this has the potential to leave a considerable UK governance gap.

Adopting the approach of the first half of this analysis, the independent body is arguably required to ensure that the principles of environmental protection that govern its remit are interpreted consistently with any relevant European interpretation. However, it is not proposed as part of this draft agreement that the independent body will have the power to refer any question of interpretation to the CJEU. This raises an important issue over the potential duality of the draft agreement.

The argument runs that any divergence in environmental protection will provide grounds for the EU to first raise the issue with a Joint Committee and failing resolution, seek arbitration knowing that any issue of interpretation of a concept of environmental protection to which the EU seeks ownership will be referred to the CJEU, irrespective of any considered opinion of the independent watchdog. The net result is the establishment of a dual regulatory approach to the domestic implementation of environmental obligations.

 

Independent [sc. DEFRA?] Review into Serious and Organised Crime: Proposals for Legislative Change (November 2018)

The current system of waste regulation is entirely broken and therefore needs radical reform, otherwise there will be even more planning, coordination and commission of serious and organised crime: waste crime is the “new narcotics”.

This is the message which is surely intended to be taken away by readers of this “independent review”.

Given its mysterious authorship, hinting at a predominantly DEFRA team, and the foreword’s conclusion, we should take it seriously: the foreword ends with the pointed observation that its recommendations should be available for the forthcoming Resources and Waste Strategy and the Environment Bill.

Anyone interested in waste regulation should give this short but impressive document a careful read.

The “independent report” is particularly interesting on the failure to consolidate current organised crime within existing intelligence structures (the national Government Agency Intelligence Network and the ten Regional Organised Crime Units), the EA’s lack of a strategic threat assessment (compared with other agencies) and the tension between the National Enforcement Service and local area teams.

The authors tell us that there is poor partnership between the EA and other agencies, including Police and Crime Commissioners, slow reaction times and a reluctance to share intelligence or to disclose information. There are other more effective models for dealing with crime, for instance the National Wildlife Crime Unit and the National Food Crime Unit.

A Joint Unit for Waste Crime (“JUWC”) should be established within the EA, to include staff from the National Police Chiefs’ Council and HMRC (as to which, think of fraud and landfill tax offences).

The EA should have wider investigatory powers than the archaic powers which currently exist (such as s.108, EPA 1995) and greater RIPA-style powers. The new JUWC should have access to the Police National Database and Police National Computer, and then to the new Law Enforcement Database.

There are great opportunities for organised waste crime: permit exemptions, the weak regulation of carriers, brokers and dealers, the ease of misdescribing waste through paper-based waste transfer note system (construction waste being highlighted) and altogether a lack of transparency.

Waste producers should be held accountable for the end destination of their waste products, including a requirement that they contribute to the clean-up costs of illegally deposited waste. This development, to be brought about perhaps by changes in the duty of care regime, would be very welcome news to innocent landowner-victims.

The document refers to the “sale of permits”. Permit charges currently only fund the regulation of those being billed, but this proposal would have an increase in permit charges of between 5% and 50% to fund waste crime enforcement. A “voluntary” levy is also suggested. These would be significant changes.

It is clear that the authors are familiar with a markets-based approach to regulation. The publication can be said to have a propensity in favour of the very large industry operators.

If the recommendations are implemented together, then a great deal of very hard work will have to be done to ensure that new entrants can join the industry, that SMEs are not squeezed out and that the larger players can be subject to competitive pressures. Consumers do not want a state-enabled oligopoly, one consequence of which would only be more waste crime as more producers find ways to avoid regulation.

It is worth adding that it is odd that this should be described as an “independent report”. Independent by what measure? The Chair of the serious and organised waste crime review is identified (a non-executive board member of DEFRA and a former non-executive board member of MoJ). The biographies of three advisory panel members are provided.

But who were the individuals who put the document together (apparently in a few weeks), and who instigated its production?

It would be shame if the admirable hard work which has been done and the report’s recommendations should be promoted as an entirely “independent” piece of work (and therefore a work of unusually significant weight) when the Environment Bill is drafted.

On the face of it, this is a DEFRA unofficial in-house shopping list, despite the fact that it is expressly stated that it is not a statement of Government policy (if you search hard enough).

If the “independent report” is not a statement of intended policy (it does not bear any DEFRA logo or attribution), then the “independent report” should clearly identify the members of its “review panel” and all who materially contributed to its contents.

The report can be found here

 

Habitats and EIA Reminder

For the third time this year, the Irish courts have asked the European Court of Justice for guidance on the Habitats Directive, this time in a case brought to challenge the adequacy of the Appropriate Assessment of the likely impact of a bypass: Holohan and others v An Bord Pleanála Case C-461/17 [2018] given on 7 November 2018.

This has a direct relevance for the UK Regulations as well, and the standard of information that has to be provided. This is an area where the broad scope of the science drives the legal requirements. The decision maker has to carry out its own Appropriate Assessment of the project and give adequate reasons for its conclusions. The conundrum has always been that the developer has to prove a negative – to satisfy the decision maker that the project will not adversely affect the integrity of the European Site -, and has to do this to a standard where there is no reasonable scientific doubt left about those likely effects. It is difficult to know where to draw the line. We are beginning to be given a judicial checklist. We are told that all the habitats and species for which the site is protected must be catalogued, although it may be sufficient to establish that only some of them are present in the area affected. The Assessment must identify and examine the implications of the project for all the species present on that site, including those not listed in the designation, and the implications for all habitat types and species to be found outside the boundaries of that site – if they are likely to affect the ‘conservation objectives’ of the site. Where the decision maker rejects the findings in a scientific expert opinion that further information is still required, the appropriate assessment must include “an explicit and detailed statement of reasons capable of dispelling all reasonable scientific doubt concerning the effects of the work envisaged on the site concerned”. Indeed, the assessment “may not have lacunae and must contain complete, precise and definitive findings and conclusions capable of dispelling all reasonable scientific doubt as to the effects of the proposed works on the protected area concerned” (judgment in the earlier case of 25 July 2018, Grace and Sweetman, C-164/17). These are some difficult standards to satisfy.

There is also a sting with regard to Environmental Impact Assessment. The Court in Holohan held that the developer will have to supply information that expressly addresses the significant effects of its project on all species identified in the Environmental Statement – and not just those that are protected species. The developer must also explain all the main alternatives that have been studied, and their environmental effects “even if such an alternative was rejected at an early stage”. This is more ammunition to add to the long line of court challenges.

 

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Environmental Law News Update

In this latest Environmental Law News Update, David Travers QCChristopher Badger, and Zander Goss consider a win for Dyson in its labelling battle with the European Commission, the prospect of bodycams for EA officers and seizure and destruction by the EA of vehicles that have been used in waste crimes.

 

Dyson wins energy labelling battle

Anyone who has had to litigate a case involving standards or test protocols is likely to be sympathetic to the proposition that at best they are complex and difficult to apply and at worst so unconnected with reality that they offer no insight into the relationship between the test results and the real world.

Dyson Ltd, best known for the manufacture and sale of bagless vacuum cleaners around the world applied for annulment of Commission Delegated Regulation 3 May 2013 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of vacuum cleaners (OJ 2013 L 192, p. 1). Sir James Dyson’s grouse was that while the regime purported to mandate the provision of end user information in a way which would enable consumers to make better informed, and in this context, more energy efficient decisions, the outcome was seriously flawed in that the tests mandated were tests of empty vacuum cleaners before the bag contained dust which compromised the suction. This was a blow to Dyson whose USP was that his vacuum cleaners had no bags and suffered no loss of suction. Although buried deep in the jurisprudence of the EU his point was simple; the regime discriminated against the bagless vacuum cleaner and unfairly favoured the established manufactures of vacuum cleaners.

The Commission resisted the application, inter alia, on the grounds Celenec (European Committee for Electrotechnical Standardisation) claimed reproduceable results could only be obtained using an empty collector. (This seems a bold claim as the Commission permits a dust-loaded study in the regulations implementing the ecodesign regime for vacuum cleaners. See Commission Regulation (EU) No 666/2013 of 8 July 2013 implementing Directive 2009/125/EC of the European Parliament and of the Council (OJ 2013 L 192, p. 24).)

Encouragingly, the General Court found for Dyson Ltd. and unless an appeal is lodged the whole of the regulation will be annulled.

Before the decision consumers would have been right to wonder whether the EU regime for the provision of information not only subordinated consumers interests to those of manufacturers but worse, subordinated those interests to one established group of manufacturers. It will be fascinating to see whether the sound science and good sense represented in this decision spread to a wider range of environmental rules.

 

Bodycams for Environment Agency officers

Environment Agency enforcement teams in the East Midlands have adopted wearing body worn video cameras following a six-month trial in the North-East.

The trial found that wearing the cameras helped to reduce incidents of anti-social behaviour, assaults and threats against Environment Agency staff.

Footage captured on a bodycam was also used recently by the Environment Agency as part of a prosecution of an individual for wilfully obstructing officers in the execution of their duty and of using abusive behaviour. The individual pleaded guilty.

The press release suggests that the cameras will not be set to record continuously. Pete Haslock, Enforcement Team Leader for the Environment Agency in the East Midlands is quoted as saying: “Officers will switch on the cameras if and when they enter a hostile situation or where hostility may be anticipated. That could be a site where they have experienced aggressive behaviour in the past or an unknown quantity, such as on a remote river bank.” This does not suggest that it is intended that video footage will be used as a means of confirming conclusions reached by officers during a routine inspection about the extent to which any particular business is or is not complying with the conditions of its permit or of supporting any findings subsequently reported in a CAR form. The principal focus of the Environment Agency is on protecting the safety of its staff.

The cameras will also be used by fisheries enforcement officers during their routine activities.

The full press release can be found here

 

Environment Agency crush van in fight against waste crime

The Environment Agency recently announced that it had seized and destroyed a Ford Transit van which had been used in a string of waste crimes in and around London. Environment officers determined that much of the waste in the van had come from small building operations and small businesses. In its press release, the EA reminded businesses of their duty of care concerning waste they generate. Penalties for failure to comply with that duty can include unlimited fines in the most serious cases.

Local authorities can also use vehicle seizure as an effective tool for fighting waste crimes. In certain circumstances, a waste collection authority may sell, destroy, or otherwise dispose of a seized vehicle. Where a vehicle is sold, the Council may keep a portion of the proceeds to cover its expenses in exercising its seizure powers under s. 5 of the Control of Pollution (Amendment) Act 1989 and s. 34B of the Environmental Protection Act 1990. DEFRA have published guidance that explains the procedure laid out in the Control of Waste (Dealing with Seized Property) (England and Wales) Regulations 2015, see here.

The 2015 Regulations allow Councils to recover expenses through the sale of seized vehicles. Consequently, destruction of the vehicle may not be the preferred option, although, particularly where a vehicle has too little value to make a sale viable, destruction is useful as a visible way of deterring crime and demonstrating to the local community how a Council is tackling issues like fly-tipping. This impact can be greatly enhanced through publicity with news outlets, such as this BBC report about a van crushed by Rotherham MBC.

 

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Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger  considers the Government’s response to the EAC’s recent report on the 25 year Environment Plan, further official responses to the on-going inquiry into green finance, and flaws found by the chemicals industry in the Government’s REACH plans.

 

Latest offering on environmental policy published

On 6 November 2018, the Environmental Audit Committee published the Government’s response to the EAC’s most recent report on the 25 Year Plan for the Environment. The response is a classic example of avoidance of the issues raised and attempts to make use of previous policy announcements to deflect attention away from the fact that there are very real risks resulting from the uncertainties created by Brexit.

The response’s wooliness can be demonstrated in the following highlights:

  1. When asked for specific actions and legislation to turn aspirational targets into concrete delivery plans, including putting the 25 Year Plan on a statutory basis, the  Government’s response was to relist the aspirational goals, state that it intends to “consult fully and develop robust strategies” and state that the Government is bringing forward the first Environment Bill in over 20 years that will build on the 25 Year Plan, without delving into any specifics.
  2. On air quality, the Government referred back to its Clean Air Strategy, which is subject to consultation.
  3. When asked for long term legally binding measurable targets to be part of upcoming environmental legislation, the Government stated that it already has extensive targets for the environment, ranging from water quality to air quality to waste management, which will continue to have effect after the UK leaves the EU. The Government is committed to reporting on policy targets and on environmental outcomes overall and Parliament will have a role in scrutinising Government’s performance against its commitments. This doesn’t suggest that there is likely to be any change to the status quo and doesn’t take into account that the European Commission plans to review relevant Directives, such as the Water Quality Directive as part of its 2019 Work Programme.
  4. When asked for interim targets, the Government has stated that it is committed to engaging widely on the development of a comprehensive suite of indicators and metrics to measure environmental change and to report on those regularly. It also referred to the new independent environmental watchdog and that they are currently analysing the responses to that consultation.
  5. The response ducked the EAC’s conclusion that it is “too weak” for the Government to simply ‘have regard to’ environmental principles and that their application should be limited to central Government rather than including all public bodies.
  6. Whilst acknowledging the potential benefit of the concept of “environmental net gain”, this will take place over a “longer timescale”, with no specifics on the timeframe given.

The Government did agree to undertake an audit of the main existing environmental targets, which will be published in due course. It rejected a call for an independent Environmental Enforcement and Audit Office, preferring to fall back on the independent watchdog. It stated that it is committed to ensuring that environmental principles have an “equivalent effect” in the UK after we leave the EU. This is not the same as ensuring environmental improvement following Brexit. In particular, despite this assurance, the response did not commit to replace the one third of EU environmental legislation (air, waste, waster, chemicals) that cannot be copied and pasted into UK law through the EU Withdrawal Act.

The full response can be found here

 

Further Government response on Green Finance also published

At the same time, the EAC also published the Government’s most recent response to the on-going inquiry into green finance.

The main points that arise out of this response are:

  1. It was agreed that the Government should clarify that trustees of pension schemes have a fiduciary duty to consider risk and opportunities in the long-term, including environmental risks. It is likely this clarification will take effect from 1 October 2019, by way of an amendment to the Occupational Pension Schemes (Investment) Regulations 2005.
  2. Climate risks faced by a pension scheme are entirely determined by the firms in which they invest. For large institutional investors to be able to make meaningful disclosures in line with the Task Force on Climate-Related Financial Disclosures, there first needs to be widespread reporting by firms.
  3. UK Climate Projections for 2018 will use IPCC Representative concentration pathways to model a range of greenhouse gas emissions scenarios. This updated evidence base can help underpin decision makers assessments of the physical risks arising from climate change. (It may have been more helpful to agree to produce ‘off the shelf’ reference scenarios that could have been picked up and used by companies).
  4. It is proposed that a mandatory reporting obligation on energy use and emissions will fall on all large companies and large limited liability partnerships – an estimated 11,300 organisations.
  5. It is too premature to wheel out mandatory climate risk reporting across the board. A voluntary, industry-led approach to climate risk reporting is encouraged.

The publication comes in the wake of the publication of the FCA’s discussion paper on ‘Climate change and green finance’ and the Prudential Regulation Authority’s consultation paper on financial risks from climate change, reported on in this blog last week.

There appears to be a unique opportunity at present to be able to drive environmental outcomes, transparency, policy development and targets that Government at present appears to be unwilling to embrace. Perhaps it is the fear of straightjacketing business at a time when economic considerations are thought to be paramount or perhaps it is a lack of vision or ambition, but certainly the Government have not taken up this opportunity in its response. Would the position be different if environmental outcomes equated to short term economic gains?

The full response can be found here

 

Flaws pointed out in the Government’s REACH plans

Following on from our slightly critical analysis of the most recent ‘no deal’ guidance notes published by the Government, the Alliance of Chemical Associations has written to Thérèse Coffey to express its concern about DEFRA’s approach to implementing a UK REACH.

Specific concerns that are highlighted are:

  1. The timescale for the provision of information on existing registrations is seen as too short;
  2. The cost and challenge of having to submit the ‘full data packages’ that supported original EU registrations, when in numerous cases companies either do not hold or do not have access to those packages; and
  3. The fact that there is no obligation for EU-based companies to share data with UK companies could lead not only to the duplication of testing but also to the submission of incomplete datasets which potentially severely compromises the validity of the entire data collection exercise.

The letter states that the proposed two year timeframe to re-negotiate access to data or potentially re-test and re-submit a registration under UK REACH is unrealistic. Furthermore, there are a huge number of SMEs that routinely import substances or mixtures into the UK that will now need to register under UK REACH. Further attention needs to be paid to how these new registrants will be put in touch with one another and how ‘existing UK registrants’ would be permitted to share data with new registrants when they don’t own the data in question and don’t have the authority to permit others to use that data or refer to that data.

It is estimated that it will cost a further £1 billion to comply with the Government’s current no deal proposal, which will do nothing to improve the environment and which is more likely to restrict the competitive advantages of UK businesses by reducing the number of substances available to the chemical industry.

Strong words indeed.

The full letter 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