Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger, Nicholas Ostrowski and Mark Davies consider a call from the European Commission for the UK to fully comply with an urban waste water ruling, government proposals on reforming water regulation and abstraction licensing and a call from environmental committees for further scrutiny of the draft Environment (Principles and Governance) Bill.

 

UK urged to “fully comply” with urban waste water ruling

Is this soon to be a thing of the past? The European Commission has called on the UK to “fully comply” with a 2012 ruling by the CJEU that found that the UK had breached its obligations under EU law on adequate collection and treatment systems for urban waste water. In particular, the UK had failed to control excessive storm water overflows from the collecting system and treatment plants serving London (as well as Whitburn in Sunderland). Despite significant progress in London with the upgrading of three treatment plants and the construction of the Lee Tunnel, storm water overflows along the River Thames are not yet under control.

Back in 2005 the EC received a complaint that untreated waste water was being discharged into the River Thames, even in moderate rainfall conditions. The UK accepted that there were problems relating to the volume, load and frequency of wet weather discharges. This led to the establishment of the Thames Tideway Strategic Study. However, the UK did not accept that it was in breach of the Urban Waste Water Treatment Directive.

The CJEU found that the UK had failed to ensure appropriate collection and treatment of urban waste water. Several million tonnes were being discharged into the River Thames each year. It was incumbent on the UK to initiate in good time procedures to ensure compliance with the relevant EU legislation.

As six years has passed since the ruling, the Commission has sent one final reminder before referring the case back to the CJEU with a request for financial sanctions. The UK has two months to reply.

The Lee Tunnel is 6.9km long and opened in January 2016. It is intended to capture 16 million tonnes of sewage annually that would otherwise flow into the River Lea and eventually the Thames Estuary. The Thames Tideway Tunnel will be 25km long and is intended to modernise London’s sewer network. It is planned to be opened in 2023. In light of these infrastructure developments, it isn’t anticipated that any action taken by the European Commission/CJEU will dramatically alter the UK’s current plans but it is interesting that despite this the CJEU continues to throw its weight behind the Directive.

The EC’s press release can be found here

In a related matter, it has been reported that eels in the Thames are becoming hyperactive as a result of high levels of cocaine in the city’s waste water. Concentrations remain high across the week, indicating a consistent use. Water treatment plants have failed to filter the drug out of waste water, whilst downpours overwhelm the system resulting in waste water being carried directly into the river.

 

Government’s proposals on reforming water regulation and abstraction licensing

The Government’s recent consultation suggests that the long term planning of water resources is and will continue to be an interesting and significant area of work for environmental lawyers.

Under the Water Industry Act 1991 water companies must produce a number of management plans including water resource management plans (WRMPs), business plans and drought plans every 5 years to show how they will manage and develop water resources to balance supply and demand for water over a 25 year period. These are substantial documents which require considerable investment in time, expertise and which require substantial public consultation.

The abstraction of water is obviously a key element in the management of water resources and, with some exceptions, currently, anyone intending to abstract more than 20 cubic metres a day needs an abstraction licence from the Environment Agency (similar systems exist in Wales and Scotland).

Applications for licences or for amendments to existing licences are determined by the Environment Agency under a system of Abstraction Licensing Strategies based on catchment abstraction management studies which are prepared for each region in England (a similar system applies in Wales and Scotland). The process is governed by the Water Resources (Abstraction and Impounding) Regulations 2006.

In discharging their water abstraction duties, the EA must secure compliance with the Water Framework Directive 2000, avoid deterioration of natural habitats in Special Areas of Conservation under the Habitats Directive 1992 and comply with the Conservation of Habitats and Species Regulations 2010 (SI 2010/490) when making decisions concerning water abstraction licences.

However, in an important consultation that opened two weeks ago DEFRA notes that of around 13,000 abstraction licences which do not have time limits, over 1,500 may be unsustainable.

The consultation is detailed and technical and not easily summarised. In it, DEFRA sets out its long-awaited proposals for better long-term planning for water resources and drainage.

In broad summary, the government’s proposals include:

  • Reforming abstraction licensing to clarify when the EA as licensing authority can amend licences.
  • Amending existing legislation to allow a new charging methodology for Internal Drainage Boards.
  • Changes to the process for modifying water company licence conditions to align it with the process applying to other utilities and the 25 year environment plan goals

Of particular interest, perhaps, is DEFRA’s proposal to amend OFWAT’s powers to modify licences. The consultation envisages a change from the current system so that, rather than referring the matter to the Competition and Markets Authority if the water company does not agree to a licence change, OFWAT can impose an amendment to a water company’s licence and, if the water company does not agree, the water company (rather than OFWAT) must appeal to the Competition and Markets Authority. This proposal will significantly strengthen OFWAT’s powers.

 

EFRA and EAC Committees to scrutinise the draft Environment (Principles and Governance) Bill

The Environment, Food and Rural Affairs Committee and the Environmental Audit Committee have launched a joint call for written evidence to scrutinise the draft Environment (Principles and Governance) Bill.

The Committees have invited evidence for the draft clauses, the policy papers, the statement of impacts, the memorandum from Defra to the Delegated Powers and Regulatory Reform Committee and the information paper on the policy statement on Environmental Principles.

All interested parties are invited to address the following questions, as well as any other aspect of the draft legislation, in writing by the end of January using no more than 3,000 words:

  • Does the proposed constitution of the oversight body provide it with enough independence to scrutinise the Government?
  • Does the proposed oversight body have the appropriate powers to take ‘proportionate enforcement action’?
  • Are there any conflicts of interest or overlap with existing government bodies?
  • As drafted are the principles legally enforceable? What will need to be included in the National Policy Statement to interpret the application of the principles?
  • Are there any conflicts with other legislators or legislation, for example the Scottish Continuity Bill?
  • Does the Bill meet the government’s commitment to non-regression from EU environmental standards?
  • Is there anything else missing that should be included to meet the enforcement, governance and other gaps in environmental protection left by leaving the European Union?

With seven questions to answer, plus anything else one might wish to say, 3,000 words doesn’t seem like an awful lot per submission…

The full announcement and link for submissions may be found here

 

We published January’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, Charles Morgan, William Upton and Mark Davies consider a case where a property owner was required to remedy a connection to the sewerage system outside of the property, how much has to be reconsidered when an Environmental Permit is varied and a new EU report on climate-related disclosures.

 

Owner gets wires crossed over sewerage responsibilities

In Mustafa v Enfield LBC [2018] EWHC 3726 (Admin) Lewis J. held that a local authority was entitled to serve a notice under s.59 of the Building Act 1984 requiring a property owner to remedy at his own expense a wrong connection to the public sewerage system outside the property.

The property comprised three flats in a converted house sharing a vertical soil pipe which left the curtilage of the property and connected to the public sewers under the street. Unfortunately it had been connected, in unknown circumstances, to the surface water sewer not the foul sewer. The owner considered the correction of that to be the responsibility of the local authority or sewerage undertaker. The Magistrates Court nevertheless ordered the owner to effect the remedial work, a result upheld by the High Court.

The principal basis of the decision was that s.59 applied where “satisfactory provision has not been, and ought to be, made for drainage” of a building. This wording was not confined to the state of the building itself or to matters arising within its curtilage and was wide enough to include the private pipe connecting the soil pipe to the public sewer in the street outside and the manner of its connection. Lewis J. considered that this reasoning was also consonant with the provisions of the Water Industry Act 1991, s.106 of which entitles property owners to communicate with the public sewer.

The court left open the interesting question of whether in similar circumstances a sewerage undertaker could be joined in an appeal against a s.59 notice with a view to requiring it to bear some or all of the cost. Whilst Thames Water had intervened on the appeal, it had not formally been a party below and was not directly interested in its outcome.

Enfield LBC was represented by Six Pump Court’s Nicholas Ostrowski. The full judgment is available on Lawtel and Westlaw.

 

How much has to be reconsidered when an Environmental Permit is varied?

The requirement to keep environmental permits up to date so that they keep using the best available techniques (“BAT”) is a difficult one to apply. It is arguable that the Environment Agency’s own duty to stay informed of developments means that it must take every chance to look at what is BAT whenever it comes to review an existing environmental permit. The issue has arisen in connection with the continuing controversies over Cuadrilla’s shale gas exploration site at Preston New Road, Lancashire.

The recent case of R (oao Friends of the Earth Limited) v Environment Agency and Cuadrilla Bowland Limited [2019] EWHC 25 (Admin), 11 January 2019, has confirmed that the need to consider BAT is indeed an arguable issue, but not necessarily a winning argument. Supperstone J granted permission to proceed but ultimately rejected the challenge to the Agency’s decision to vary Cuadrilla’s Environmental Permit. The variation amended the injection limit of fracturing fluid per day to a limit that applied per hydraulic fracturing stage. The Agency did not review what was BAT, and the complaint was they had failed to consider if an emerging technology would constitute BAT as part of the permitted activities. Friends of the Earth had submitted expert evidence as part of the public consultation on the new variation decision, to the effect that “electrocoagulation” had the potential to reduce the environmental impacts of the scheme by increasing the re-use of the fluid.

The judge was persuaded by the submissions that, in the interests of legal certainty, the process by which the Waste Management Plan (“WMP”) is updated, and any changes in BAT are taken into account, occurs in a controlled and predictable fashion. The relevant Directive only expressly provides for the WMP to be reviewed “every five years” or if there are “substantial changes to the operation of the waste facility or to the waste deposited”. The Agency was not required to reconsider or review the WMP in this case, as no substantial changes were being made to the operation of the permitted waste facility. FoE might disagree about whether the Variation Decision would have a substantive effect, but that was a matter of judgment for the expert regulator in this complex technical field which could only be reviewed on Wednesbury grounds. The judge also concluded that it was highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred, as the Agency did not consider electrocoagulation to be a suitable treatment method at this site.

The upshot is that the case confirms that the Agency is not required to undertake a full assessment of BAT for each aspect of a regulated facility’s operation on each and every occasion that an operator seeks a variation, however minor, of an existing permit – even if arguments about where the line should be drawn are likely to continue.

 

New Year, new Report on Climate-related Disclosures

On 10 January the European Commission published to its website a report by the Technical Expert Group on Sustainable Finance; the ‘Report on Climate-related Disclosures’. The Report is the latest in a growing body of material examining how finance could be connected with sustainability and was produced in pursuance of Action 9.2 of the Commission’s ‘Action Plan on Financing Sustainable Growth’, published in March 2018.

The commitment of Action 9.2 was to revise the non-binding guidelines of the Non-Financial Reporting Directive (“NFRD”) that govern the disclosure of environmental, social and governance-related information. More specifically updating the non-binding guidelines to, “…provide further guidance on companies on how to disclose climate-related information, in line with the Financial Stability Board’s Task Force on Climate-related Financial Disclosures (TCFD) and the climate-related metrics developed under the new classification system.

The Commission set up the Technical Expert Group to assist in the implementation of the Action Plan, tasking it to develop four key areas:

  1. A unified classification system for sustainable economic activities;
  2. An EU green bond standard;
  3. Benchmarks for low-carbon investment strategies; and
  4. Guidance to improve corporate disclosure of climate-related information.

It may not seem it, but this is actually quite exciting (a relative term, please bear in mind). There has been talk, and work done, for several years now to connect finance with sustainability, but it is only now that the Commission truly seems to be moving towards developing a proper system of metrics that will allow businesses (the companies in the scope of the NFRD are large Public Interest Entities, i.e., listed companies, banks, insurance undertakings and other, Member State identified, companies with more than 500 employees) to start ‘greening their finance’.

The purpose of the guidance in the Report is to assist companies develop ‘high quality’ climate-related disclosures that comply with the NFRD, which is the legal starting point, and which provide a foundation for addressing the recommendations of the TCFD. Those disclosures are broken down into three types

  • Type 1 – those that companies should disclose (high expectation that all reporting companies disclose them, e.g. governance processes addressing climate-related risk and opportunities or Scope 1 and Scope 2 Greenhouse Gas emissions)
  • Type 2 – those that companies should consider disclosing (expected of companies with significant exposure to climate-related risks and opportunities, e.g. the roles of board and management level positions in charge of climate-related topics)
  • Type 3 – those that companies may consider disclosing (additional or innovative disclosures that provide more enhanced information, e.g. explanations as to how strategy has been adapted to increase resilience under different climate-related scenarios).

All the disclosures are aimed at meeting the needs of investors and other stakeholders, in addition to providing consumers with easily accessible information on the impact of businesses on society.

The issues the Report may face are that its ‘Types’ of disclosures are not overly specific and there is arguably cross-over between Types 1 and 2, such that it is not necessarily clear into which ‘Type’ something may fall. It also seeks to align the legal elements of the NFRD with the TCFD recommendations, which are not necessarily the easiest of bedfellows. Irrespective of these issues, with the updated guidelines expected in June 2019, businesses in the scope of the NFRD would be well advised to begin considering their own climate-related disclosures in accordance with the Report.

The full Report is available here

 

We published January’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 – January 2019

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

In this short update Mark reminds us of our predictions for top environmental law news in 2018 and evaluates their progress, whilst also looking at key environmental law stories expected in 2019, including the shakeup of the approach to waste crime and a look at the impact of the Environment Bill.

Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Charles Morgan consider the government’s 2019 Clean Air Strategy, financial penalties for a water company supplying polluted drinking water and an updated framework for the disposal of radioactive waste.

 

Stop Press – Clean Air Strategy 2019

The Government has this morning published its Clean Air Strategy 2019. The 109 page document is accompanied by a 9 page executive summary. It complements the Industrial Strategy, the Clean Growth Strategy and the 25 Year Environment Plan.

The strategy addresses the diffuse sources of air pollution which supplement that from the use of motor vehicles, including power generation and means of production. Coal-fired power stations will be phased out, as will oil and coal heating. Domestic use of coal and wood makes up 38% of primary emissions of fine particulate matter and also produces other pollutants. The Government will legislate to prohibit the sale of the most polluting fuels and proposes to promote the reduction of the use of non-methane volatile organic compounds in such household products as carpets, upholstery, paint, cleaning, fragrance and personal care products.

As for transport, further legislative controls are proposed affecting use of vehicles and mobile machinery and the activities of railways and ports will also come under scrutiny.

Farming produces 88% of UK ammonia emissions from storage and spreading of manures and fertilisers. The Government will enforce the adoption of low emission farming techniques and extend environmental permitting to the dairy and intensive beef sectors.

Standards of control of industrial emissions will also continue to be tightened.

The magnitude of the problems with air quality and recent legal enforcement measures have plainly driven and given a real sense of urgency to these wide-ranging proposals. The result should be a series of discrete and cumulative improvements, each of which might in less pressing times have been regarded as individually “not worth doing”, none of which might as a result have been done at all.

 

Drinking Water Pollution Leaves Bad Taste in Mouth

Northumbrian Water Ltd has been fined £499,725 by Peterlee Magistrates’ Court as a result of a supply of unfit drinking water to the inhabitants of Burnhope in County Durham in December 2016.

The pollution to the water in the South Moor Service Reservoir was caused by the inadequate curing of an epoxy resin used in maintenance works. Customers complained that the water smelled and tasted of (variously) medicine, plastics, chemicals or metals. NWL pleaded guilty to one offence of supplying water unfit for human consumption (s.70 of the Water Industry Act 1991) and one of failing to follow manufacturer’s instructions for use of a product (regulations 31(1) and 33(3)(b)of the Water Supply (Water Quality) Regulations 2016).

The company had recognised the need for proper curing by its deployment of dehumidifiers and heaters but had curtailed their use for financial reasons. NWL stated after the hearing that:“As a company we pride ourselves on providing great quality drinking water for our customers and it’s only right that the DWI hold us to account when these standards slip” and stressed that there had been no threat to public health.

 

Updated framework for the disposal of radioactive waste

On 19 December 2018 BEIS published its updated framework for the long term management of radioactive waste.

Clean energy is much sought after and nuclear technology is an important part of the transition to a low carbon economy. Yet despite the fact that the UK has been producing radioactive waste for decades, there is as yet no permanent solution on what to do with highly radioactive waste which is currently stored, mainly within existing nuclear sites.

The Government believes that the safest option is to dispose of this waste underground, in a series of vaults and tunnels, such that no harmful amount of radioactivity ever reaches the surface. It cites international consensus in the framework, that by constructing a disposal facility deep within an appropriate geological setting, instead of on or near the surface, that the geological formations will isolate and contain the radioactivity for a “very long period”. Once a GDF is closed, it would no longer require any human intervention and thereby avoids placing a burden on future generations to deal with this waste. No countries have adopted a permanent solution other than geological disposal.

The intention is that a suitable location for the “geological disposal facility” will be identified through a consent-based process with Government and its agencies working in partnership with communities. Communities that create a formal “Community Partnership” will have £1 million annually of investment funding made available to them by the Government, which will rise to £2.5 million annually for those communities that progress to the stage of deep borehole investigation. The Government also stresses that a GDF is a multi-billion pound infrastructure investment, with a consequential effect on jobs, the local economy and local transport facilities.

Relevant principal local authorities will have the final say on :

  • Whether to seek to withdraw the community from the siting process;
  • If or when to seek the community’s views on whether it wishes to host a GDF.

However, they must all agree before either step can be taken. This includes all district, county and unitary authorities that represent all or part of the area under consideration.

There is no suggestion in the framework that a GDF will be imposed on a community. Ultimately, before construction of a GDF can take place, there must be a “Test of Public Support”, in order to determine the final view of the community.

This is going to take years and years and will be controversial. Back in 1995 and 1996 there was a 66 day public inquiry into an appeal by United Kingdom Nirex Limited, Britain’s nuclear waste disposal body at the time, against the refusal of Cumbria County Council to grant planning permission for a ‘Rock Characterisation Facility’ that was intended to demonstrate the practicability of a deep underground radioactive waste repository. Stephen Hockman QC represented the district authority. The appeal was formally rejected by John Gummer, at the time Secretary of State for the Environment, early in 1997. During the proceedings NIREX was accused of “undue optimism” with “inadequate knowledge”, making it very difficult for anyone to predict the consequence’s of NIREX’s actions. The updated framework clearly intends to try and avoid previous pitfalls.

The framework can be found here

 

William Upton

Chambers is delighted to announce that William Upton is to be appointed Queen’s Counsel. The formal appointment will take place on Monday 11 March 2019.

 

NEW on our International Climate Change Blog

Could a Global Pact for the Environment improve the enforcement of international climate change norms?

In November 2018, the UN Secretary-General published a report on a Global Pact for the Environment. Frances Lawson discusses the initiative and it’s chances of success in a new post for our International Climate Change blog 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

Could a Global Pact for the Environment improve the enforcement of international climate change norms?

Posted by: Frances Lawson

In November 2018, the UN Secretary-General published a report on the hotly anticipated topic of a Global Pact for the Environment. The idea, put succinctly, is for principles of international environmental law, housed at present in the plethora of soft law multilateral environmental agreements, to be brought together in one authoritative, and legally binding, environmental treaty. Put another way, the idea is to give international environmental law some much-needed clout and enforceability.

The initiative is not a new one; following his success in securing agreement at COP21 in Paris, the then French Foreign Minister, Laurent Fabius, was approached by those who had been harbouring the ambition of a new legally binding environmental treaty and asked if he would assist in bringing the idea to life. Monsieur Fabius agreed, his climate change efforts having gifted him an ecological conscience that he himself accepts to not having been born with. Fast forward to 2017, and Monsieur Fabius presided over the drafting and publication by the French association ‘Le Club des Juristes’ of a ‘blue sky’ version of what a new global environmental treaty might look like. The White Paper, as it is referred to, contains 26 Articles, and can be viewed here

President Macron then undertook to present the White Paper and the Global Pact idea to the UN. The idea was sufficiently warmly received for the UN Secretary General to commit to a work programme to explore the idea, commissioning in the first instance a report on the gaps in international environmental law that a Pact could help to plug. Hence the report published in November 2018.

What makes the initiative so exciting is its potential to define environmental law principles that can be relied upon and enforced in both national and international courts and tribunals. These principles – such as the precautionary and the polluter pays principles – are already well-established, particularly in EU law. Yet in terms of international environmental law, they remain the subject of contention and are far from universally accepted. Investment tribunals and others that regularly determine cases with an environmental dimension, typically refuse to follow principles of international environmental law for this very reason. Environmental principles are quite simply handicapped by their absence from any legally binding international treaty.

The relevance of a Global Pact for international climate change is considerable; given the low level of enforceability of the Paris Agreement, binding principles that require States to take care of the environment, including through preventive measures, and that enshrine inter-generational equity, precaution and responsibility for environmental damage would similarly revolutionise the enforceability of climate change law.

There is, however, much work to be done to bring a Global Pact into being, and even more work to ensure it takes form in a way which advances international environmental law rather than keeps it stuck in the realm of legal niceties. The next step, in what is likely to be a process spanning several years at least, is for an Ad hoc Working Group on the Pact set up under the UN to consider the Gaps report and how to take the idea forward. Key questions are the form and nature of a Pact, and the substantive content. The first meeting, in Nairobi, is next week.

There is another reason why the scale of the challenge ahead is not to be underestimated. Whilst there is already much support, including among the business community, for a legally binding environmental treaty, there are equally those that are determined to ensure nothing with real legal effect ever comes into being. This was clearly illustrated last Wednesday at an event hosted by the ICC in Paris. Amongst much enthusiasm and progressive thinking was the powerful voice of a US multinational firm which, in very clever linguistic terms, advocated the very opposite, subtly sowing doubt on the need for a legally binding instrument, stressing the complexity of the task, stating that maybe some gaps in international environmental law are there for good reason, and that maybe ‘soft’ initiatives akin to the ISO and others would provide the necessary ‘flexibility’ as opposed to something with real legal effect. Given the perceived clash between environmental imperatives and economic interests, this will not be a lone voice in the wilderness but just one part of a vociferous chorus against putting environmental law principles into ‘hard law’. If the Pact is to have real effect and ‘added value’, the voice of progressive business is going to need to make its voice heard more than ever before. Otherwise, we may end up with yet another well-intentioned but ultimately unenforceable multilateral environmental agreement to add to the 500+ others that already exist.

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan and Mark Davies consider environmental law predictions for 2019, an unwelcome Christmas present for Thames Water and the latest Water Conservation Report from the Secretary of State.

 

Environmental Law Predictions for 2019

We begin this year as we did the last: with our predictions for environmental law in the forthcoming year.

Last year our very own Christopher Badger predicted that (see the blog, 8 January 2018): single use plastics would be targeted; more trees would be planted to tackle air quality issues; and that there would be an increase in the prominence of green corporate reporting.

How did he get on? Well, on single use plastics it was certainly a busy year with two consultations being run by the Government on how single use plastics should be targeted. The latter, which specifically targeted plastic straws, plastic-stemmed cotton buds and plastic drink stirrers, closed on 3 December 2018 with a predicted ban coming into force in late 2019/early 2020.

On planting trees, the progress over the last year has been somewhat less impressive with the Northern Forest (50 million trees between Liverpool and Hull over the next 25 Years) being promised back in January but the first trees only actually being planted at the end of November. Progress will need to be somewhat more impressive by the end of this year if the target it to be met.

There has also been an increase in the coverage of green corporate reporting (although this is certainly still something to watch in this coming year) with notable events including consultations being announced by the FCA and PRA on the impact of climate change on finance, ClientEarth reporting major corporations to the FRC for failing to address climate change risks in their strategic reports and new guidance being issued by the FRC to avoid such complaints.

So, apart from a continued trend towards green corporate reporting, what are our predictions for this year?

  • A shake-up of the approach to waste crime – an obvious starting point with DEFRA’s ‘Waste and Resources Strategy’ having been published just before Christmas. Waste criminals beware!
  • More interest in the environmental impacts of the chemical sector – this is a topic that has been bubbling away in the background for some time now, but with the spotlight firmly on the chemicals sector regarding REACH, might this be the year when the environmental impacts of it are properly scrutinised?
  • A redundant Environment Bill – the final (and most outlandish) prediction is that the long-fêted Environment Bill might become largely redundant if either Brexit does not happen at all or Parliament votes on a deal which sees the UK commit to retaining EU environmental laws.

Here’s to a great 2019!

 

An unwelcome Christmas present for Thames Water

It’s the Friday before Christmas, all of the presents are bought and wrapped, the tree is up and decorated, what could possibly go wrong? If you’re Thames Water, rather a lot: the company was fined £2 million at Oxford Crown Court on 21 December for an incident in 2015 in which two Oxfordshire streams were polluted with raw sewage, killing almost 150 fish, and a nearby garden was flooded.

Sentencing, Judge Peter Ross heard that Thames Water had disregarded more than 800 high-priority alarms needing attention over four hours in the six weeks prior to the incident. A further 300 alarms were reportedly not properly investigated, all of which would have indicated that the offending pumping station was failing. A further alarm was apparently deliberately deactivated during a night shift.

The company were sentenced, after pleading guilty, on the basis that the discharges constituted a high-end, category three harm offence. Thames Water was ordered to pay the Environment Agency’s full costs of £79, 991.57.

To quote Robert Webb – ‘that wasn’t very Christmassy’.

The full press release may be found here

 

Water Conservation Report 2018

Section 81 of the Water Act 2003 imposes a duty upon the Secretary of State for Environment “to encourage the conservation of water” and to produce a report every three years stating what steps have been taken/are proposed to be taken to that end. The latest such report was presented to Parliament in December.

The report identifies three major areas requiring attention:

  • leakage; at present 22% of treated water put into supply is lost through leakage, which has scarcely reduced since 2014; in 2018 eight water companies missed their leakage targets.
  • per capita consumption; this too has scarcely changed in recent years.
  • metering; only 50% of households have a metered supply (this is of course not a form of consumption in its own right, but a means of drawing attention to, and capturing the economic cost of, other consumption).

Ofwat has challenged undertakers to reduce leakage by 15% by 2025, to which the industry has responded with a proposal for 16% reduction, and 50% by 2050. OFWAT has also introduced a performance commitment for per capita consumption in the PR19 quinquennial planning process, to which the industry has responded with ambitious targets, the principal mechanism appearing to be metering with a target of 62% by 2020 and 83% by 2045.

As for the steps currently being taken by Government, these appear to be “endorsement” of the proposals of the undertakers, and “call for evidence”/consultation about setting non-binding targets for personal water consumption.

Recent progress is reported as including:

  • the 2015 update to the relevant building regulations permitting local authorities to introduce an optional higher standard of 110l/person/day for new houses.
  • the stimulation of the industry into producing a long-term planning framework.
  • the issue of guiding principles for the 21019 round of water resources management plans.
  • the issue of a strategic policy statement to Ofwat, requiring in particular a focus on demand management.
  • the publication of the Government’s 25 year environment plan.
  • the publication by Waterwise of a water efficiency strategy in 2017.
  • the creation of a retail market for water supply to businesses, charities ad public sector organisations, although it is acknowledged that to date the (unspecified) resulting “water efficiency measures” anticipated by Ofwat have not materialised.
  • the proactive intervention of the Secretary of State on leakage
  • the emerging national policy statement on water resources infrastructure; a final report is anticipated in the autumn of 2019.
  • support of research into demand management.

These are challenging issues. It is difficult to gain any sense of the relative scale of the two substantive sources of waste identified above and of the potential gains from improvements, but it seems pretty clear that leakage is the real problem. Not all of it is from the undertakers’ pipes – about 25% is from consumers’ supply pipes. This can be detected, and its elimination encouraged, by smart metering. However the industry’s share of the problem is three times greater and the resulting “reputational” difficulties are recognised in the report. There is a clear basis for the current public attitude being “Physician, heal thyself.”

There is also a limit to the scope for reduction in household consumption, an activity which, unlike leakage, is not per se a problem but rather a principal purpose of supply. It is of course one of the supreme ironies of the current system that large quantities of water from public supply (all expensively treated to EU drinking water standards) are consumed to flush lavatories, to wash cars and to water gardens whilst truly vast quantities of rainwater, perfectly suitable for such purposes, are locally harvested by gutters merely for immediate discharge into an overloaded and largely combined sewerage system, with all the resulting problems of flooding and pollution. Nevertheless, even if more sustainable methods of consumption were developed, the basic domestic functions of drinking, cooking and washing would carry on largely unabated, although the report does moot water efficiency labelling for household appliances as one practical means of reducing consumption. It also states that undertakers will be required to impose controls such as hosepipe bans before being permitted to abstract more water on times of drought.

The report further notes that “… new water resources will also be needed meaning new large infrastructure such as reservoirs or water transfers will be part of the solution”. That may be so to the extent that the problem is current demand or resilience of supply, but insofar as it is waste through leakage or insouciant consumption, to describe a new reservoir as its ‘solution’ would be an odd way of putting it. The need for new resources is unexplained in the report.

 

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