Environmental Law News Update

In this latest Environmental Law News Update, Christopher BadgerNicholas Ostrowski and Natasha Hausdorff consider the publication of the Environment Agency’s quarterly scorecard, a new consultation on plastic packaging tax and continuing scrutiny of the draft Environment (Principles and Governance) Bill.

 

Environment Agency’s quarterly scorecard published – pollution incidents polluting the Agency’s performance

On 21 February 2019 the Environment Agency published its ‘corporate scorecard’ for the second quarter of 2018-19 which is intended to provide readers with an ‘at a glance’ look at the Agency’s performance over a number of metrics set out in the Environment Agency action plan.

The scorecard is full of numbers, tables and charts for the data afficionados amongst us and uses a traffic light system to set out those targets which the Environment Agency is on track to hit, those which it may hit and those which it will probably fail.

The measures against which the Environment Agency is assessed are spread across water, pollution, habitats, flooding, incident response and influencing planning decisions by local authorities. There are also slightly less interesting ‘organisational’ targets such as the management of the Environment Agency’s budget.

Outside of the expert readers of this blog, the Environment Agency’s performance is typically measured solely by how they respond to flooding incidents (who can forget the political fallout during the 2014 floods). On reducing the risk from floods and maintaining relevant assets the Agency is doing well (perhaps assisted by a relatively dry winter).

However, the big red score which jumps out is that the Environment Agency significantly missed its target in its plan to reduce serious pollution incidents. The target is to have no more than 400 such events in a year and yet 492 such events were recorded in the last 12 months (just under 25% above target). In fact, this number is increasing as the equivalent figure a year ago was 415 such events. Elsewhere the Environment Agency does focus on its impressive efforts to improve water quality of rivers, lakes and coastal waters but this amount of pollution will be concerning. The reason for this may be weather related as the Environment Agency suggests or it may be that the high cost of legal disposal is tempting more people into illegality. The Agency suggests that it is investing in pollution Incident Reduction Plans which it thinks will deliver improvement but, if the situation doesn’t improve, it will be interesting to see what the Agency’s response to this will be. Will they invite DEFRA to water down their targets in the next action plan? Or will they shift resources towards compliance and investigation and away from other, potentially important tasks which the Environment Agency undertakes?

 

Consultation on plastic packaging tax

As part of government plans to target difficult-to-recycle materials, HM Treasury and DEFRA are seeking views on the design of the tax on plastic packaging, as part of the resources and waste strategy consultations.

The plans announced in the December 2018 Budget, indicated that a world-leading new tax on the production and import of plastic packaging with less than 30% recycled content would be introduced from April 2022, subject to consultation. This accompanies the government’s proposals for reformed Packaging Producer Responsibility regulations, for which there is a parallel consultation.

The consultation description indicates that plastic packaging accounts for 44% of plastic used in the UK, 67% of plastic waste, and over 2 million tonnes of plastic packaging is used each year. The vast majority of this is made from new, rather than recycled plastic. The consultation outlines the government’s proposal for how the tax will work and contains questions, including which packaging should be in scope of the tax, how to assess recycled content, and which businesses will be liable for the tax.

Last year, the government issued a call for evidence, which prompted a record 162,000 responses. This highlighted that recycled plastic using is often more expensive than using new plastic, despite its lower environmental impacts.

The government aims to shift the economic incentives involved in the production of more sustainable plastic packaging, encouraging greater use of recycled plastic and helping to reduce plastic waste and encourages stakeholders to also provide views on the high-level principles of the tax.

The consultation is open until 12 May and views can be submitted here.

 

Pre-legislative scrutiny of the draft Environment (Principles and Governance) Bill continues

The Environment, Food and Rural Affairs Committee continues its pre-legislative scrutiny of the draft Environment (Principles and Governance) Bill. It has published the written responses received and continues to hear oral evidence, the next oral evidence session to be heard on 27 February 2019 when Andrew Bryce, Co-Chair of the UKELA Brexit Taskforce and Richard Macrory QC, Emeritus Professor of Environmental Law at UCL will be giving evidence.

Highlights from some of the written responses include:

  • ClientEarth considers that the Bill currently gives too much discretion to Government Ministers in the design and implementation of environmental law. In their view, this constitutional law endangers the future efficacy of environmental law. There should be an overarching binding objective on Government to secure the recovery and maintenance of a healthy, diverse, clean and beautiful environment with binding legal obligations of result on Government to achieve ambitious environmental objectives.
  • Anglian Water submits that the clauses as drafted would at best deliver a weak imitation of the environmental architecture currently in place through the EU Commission and European Court of Justice. The Office for Environmental Protection (‘OEP’) as currently proposed would lack true independence and the duty on ministers to only ‘have regard’ to the environmental principles will make them too easy to ignore.
  • UKELA submits that the current provisions significantly qualify and limit the application of the Policy Statement, in particular that the exclusion of the Principles from policies relating to the “allocation of resources within government” is too broad and that the overall proportionality limit found in clause 4(2) is unnecessary and creates scope to avoid applying environmental principles where this requires considerable cost of systemic change to meet environmental standards.
  • Professor Macrory highlights the difference in approach between traditional judicial review and the application of Wednesbury unreasonableness and the CJEU’s approach of adopting a proportionality test involving a more structured examination of the balancing interest involved. His concern is that reliance on judicial review will not bring the same degree of review as currently adopted by the CJEU in infringement proceedings.
  • The Institute for Government states that arrangements for environmental oversight after Brexit need to be seen as part of the overall supervisory and governance landscape after Brexit. If the OEP will eventually be duty-bound to supervise the UK’s compliance with its treaty commitments, as well as government’s compliance with UK environmental law, then it is all the more importance to give it independent governance now. Otherwise, the OEP will be designed now, only to be redesigned later.

The majority of the responses received welcome the direction of travel but raise serious issues with the current draft of the legislation, in particular in relation to the independence and bite of the OEP.

All written responses can be found here

 

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Environmental Law Podcast – February 2019

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

In this short update Chris and Mark consider and discuss:

–          the Clean Air Strategy 2019

–          hot topics in the relationship between investment treaties and environmental protection, and

–          the problems causing hyperactivity of eels in the River Thames

Please find a link to February’s podcast here:-

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Gordon Wignall and William Upton consider the new Rivers Authorities and Land Drainage Bill, de minimis interpretations of environmental permit exemptions and privacy issues relating to high rise buildings.

 

The spirit of co-operation: the Rivers Authorities and Land Drainage Bill 2019

The Water Resources Act 1963 created ‘river authorities’ in place of the ‘river boards’ constituted under the River Boards Act 1948. Then in their place came the ‘regional water authorities’ constituted under the Water Act 1973. Many of their functions were assumed by the National Rivers Authority created by the Water Act 1989. The NRA turned into part of the Environment Agency in 1996 and the terminology of ‘river(s) authority’ then lay moribund. It has now re-emerged in a rather different context.

The Flood and Water Management Act 2010 created for its specific purposes rather more obscure bodies called ‘lead local flood authorities’ and ‘risk management authorities’, which were simply new titles given to existing public authorities to reflect newly-defined responsibilities. Section 13 imposed upon risk management authorities a duty to co-operate with one another, in response to the lamentable lack of co-ordination with which the various bodies involved in the process of water level management had acted during recent floods.

As part of that process of co-operation the Somerset Rivers Authority came into being after the flooding of the Somerset Levels in 2013-14. It describes itself as a ‘partnership’ of local flood risk management authorities. It has no statutory basis (beyond the above) and no fund-raising powers of its own. It is essentially voluntary and has been successful.

This initiative prompted a private members’ bill which has now reached the Committee stage in the House of Commons: the Rivers Authorities and Land Drainage Bill 2019. Clause 1 provides for the insertion of a new Part 3A into the Flood and Water Management Act 2010 enabling the creation by the Secretary of State, on the initiative of local flood risk management authorities, of ‘rivers authorities’ as bodies corporate with power to raise funds by local precept. The main functions of such bodies will be the preparation and publication of an annual plan of the activities to be carried out by relevant risk management authorities (with a power to ‘plug the gaps’ between individual strategies) and to promote opportunities for co-operation between them.

The Explanatory Notes with the Bill make it clear that one major purpose behind it is to provide the Somerset Rivers Authority with more ‘clout’. It adds that “the government is not currently considering establishing Rivers Authorities in other parts of England” – although that presumably, like the reach of the Bill, extends to Wales too.

The Bill also makes provision for the revision by the Secretary of State of the methods by which internal drainage boards established under the Land Drainage Act 1991 conduct land valuations for the purposes of their charging schemes and further permits information sharing between the IDBs and HMRC.

It is gratifying to note in these interesting times that the spirit of co-operation has reached Parliament itself: the Bill has received cross-party support.

 

Is a de minimis interpretation of permit exemptions possible?

Is there room for anything other than a strict interpretation of the exemptions contained in the Environment Permitting (England and Wales) Regulations 2016? What happens when the conditions of an exemption are overtaken by contemporary habits and practices?

These were the questions asked by the Court of Appeal in R (CSG) v. Environment Agency (14 February), the Court of Appeal having retained the judicial review application after having granted permission.

The Claimant was aggrieved that, by reason of the presence of 0.04% of material in septic tank sludge which was not expressly permitted by the S4 exemption, the Agency required it to obtain either a fully bespoke permit or one of the larger standard rules permits, at great additional cost. The Claimant had added a grid to the inlet of its storage tanks to extract the additional material (wet wipes and so on, definitely not material which might be used as fertiliser – use of sludge in agriculture being the core of the S4 exemption).

The Claimant did not much like the Agency’s insistence that the Claimant could raise its de minimis argument during any criminal prosecution.

The 2016 Regulations, the conditions attaching to permits and to exemptions, and the terms of the many regulatory position statements, are nothing if not prescriptive. They make up a complete and exclusive system regulating how waste is to be treated. This is the regulator’s (and DEFRA’s) intention.

If there are changes in people’s behaviour which mean that those conditions are not expressly met, then there will inevitably be periods when new exemptions have to be consulted on and drafted. This will take time.

The Court of Appeal sided with the Agency, despite authorities in other regulatory contexts which have said that mandatory compliance can be interpreted to mean substantial compliance. There is no room for any ancillary de minimis treatment in the waste permitting scheme.

Some will think that this approach is unduly prescriptive. As soon as an exemption cannot meet contemporary circumstances, then it will become worthless before there is sufficient time to re-draft the exemption or finalise a new one.

Moreover, this approach will benefit competitors who happen to be able to offer alternative treatments, it is to the disadvantage of SMEs and will add to compliance costs. It is difficult to see where the benefit of the Court of Appeal’s approach lies. It can always ensure, by its enforcement options, that there is no breach of the overarching Article 13 provision in the Waste Framework Directive ensure the protection of the environment and human safety.

So, by this judgment, we have a definitive expression of the basis of the exemption system and indeed of the 2016 Regulations. Any de minimis argument is a matter for the defence of an enforcement action. Should habits and behaviour render the conditions of a current exemption inapplicable, then operators will need to find a new permitted basis for their operations, even though it might require the labour and expense of a full bespoke permit.

 

Privacy, nuisance and over-sensitivity

The High Court has decided that the unfortunate neighbours to the Tate Modern’s new viewing gallery do not have an actionable case for the invasion of their privacy or in nuisance – see judgment here. The residents were living in new glass-fronted flats, without much in the way of blinds. It was estimated that some 500,000 visitors a year can enjoy a view of their living arrangements and habits.

There is a good discussion in the judgment of the right to privacy, which is a novel cause of action. Part of the claim for it rested on trying to show that the Tate Gallery as a public authority was subject to the Human Rights Act. It was not. But the more important part – and one that succeeded in principle – is that an invasion of privacy can amount to a nuisance.

The weakness of the claimants’ case was that the flats’ design and their way of living in them had created a sensitivity to privacy which is greater than would the case of a less-glass fronted flat. Other architectural designs would have reduced the invasion of privacy to levels which should be tolerated. The court considered that the concept of over-sensitivity remained relevant as part of the ‘give and take’ between neighbours in different locations. In a nutshell, as the defendant submitted:

“… What can reasonably be expected by way of protection from view in an isolated cottage in rural Dorset will be very different from that which can reasonably be expected in a curtainless window by a bus stop, or an uncurtained glass box in a congested sky.

The case does represent something of a perfect storm. There cannot be many public viewing platforms built at the same time as new flats, where the residents’ future privacy gets overlooked (to borrow a phrase) at the planning permission stage. But the case is an example of how careful designers must still be when building high rise. It is not yet known if there will be an appeal.

 

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Environmental Law News Update

In this latest Environmental Law News Update, Charles MorganChristopher Badger and Mark Davies consider the sentencing in a case involving a conspiracy to defraud the WEEE régime, carbon credits and emission monitoring plans under consideration at a key international aviation industry meeting and stark warnings about the dangers of a no-deal Brexit from the Institute for Government.

 

Where’s There’s Muck There’s Money …

In 2016 Terence Dugbo was convicted of conspiracy to defraud WEEE compliance schemes by the creation of false WEEE evidence notes and sentenced to 7½ years in prison – the longest sentence for environmental crime ever secured by the Environment Agency. The WEEE régime has always had the potential, for dishonest people, to be a licence to print money – almost literally, since the issue of WEEE evidence notes creates an automatic obligation upon compliance schemes to purchase them in order to make their books balance at the end of each compliance year. Dugbo’s scheme was essentially simple – scrutiny of his recycling company’s collection records (a task which occupied an Environment Agency officer for a whole year) revealed that, for example, a vehicle registered as a moped was recorded as having collected 991 TVs and 413 fridges in a single day, much of it from false addresses.

Last week, following a Proceeds of Crime Act hearing, the Crown Court at Leeds (HHJ Jameson QC) concluded that only 10% of the company’s activities were attributable to actual recycling, the minimum necessary in order to create the illusion of a genuine business. The court ordered Dugbo to repay £1,373,060 or to serve a further 8 years in prison. The full press release can be found here:

Six Pump Court’s Richard Barraclough QC (leading Kate Kelleher of 36 Bedford Row) has represented Dugbo throughout the proceedings. Charles Morgan represented Dugbo’s co-accused at the trial in 2016, at which she was acquitted. Richard Barraclough is also a tenant at St. Paul’s Chambers, Leeds, where Simon Bickler QC (who led Charles Morgan) is Head of Chambers.

 

Carbon credits and emission monitoring plans, due to land on the Aviation industry

On 7 February 2019 the President of the International Civil Aviation Organisation addressed the 11th Meeting of the ICAO’s Committee on Aviation Environmental Protection in Montreal and underscored how “the global importance of environmental protection has grown immensely over recent decades, and with it the significance and relevance of the work of ICAO in minimising the effects of global civil aviation on the environment.”

Part of the work of the ICAO includes a global Carbon Offsetting and Reduction Scheme for International Aviation or ‘CORSIA’. For several years the ICAO has been negotiating to develop an international framework for treatment of GHG emissions from aviation. Progress has been very slow – a factor that led to the EU including aviation emissions within the EU ETS (since subject to a significant derogation after a Court challenge by several US aircraft operators).

CORSIA, the result of the ICAO’s deliberations, is based largely on a system of carbon credits. 2021 – 2023 will see a pilot phase for States to voluntarily participate in CORSIA. As of January 2019, 78 States, including all EU countries and the US have voluntarily agreed to participate form 2021. Mandatory participation won’t actually be brought in until 2027.

However, irrespective of CORSIA, all States with operators that undertake international flights must now develop a monitoring, reporting and verification (‘MRV’) system for CO2 emissions. Operators must submit an Emissions Monitoring Plan (‘EMP’) to its relevant State authority, the deadline for which is 28 February 2019. EMPs that meet the necessary requirements will be approved by that authority. Airline operators must then submit verified annual emissions reports, the first by 31 May 2020 to include 2019’s emissions.

Notably, the EU ETS scheme is currently due to run in its current form until 31 December 2023. It is therefore likely that flights between European Economic Area states will be subject to both EU ETS and CORSIA between 2021 and 2023. The EU is currently understood to be awaiting clarity on the nature and content of CORSIA before proposing any amendments.

The UK is a volunteer participant in CORSIA. Consequently, whilst Brexit may affect the UK’s involvement in the EU ETS, it isn’t anticipated that it will have any effect on its involvement with CORSIA.

The ICAO’s meeting will last two weeks and will also consider emerging technologies and innovations that are arising in response to environmental challenges, such as hybrid and electric aircraft. The hope is that progress can be made a little more quickly than has been seen to date.

 

Institute for Government provides stark warning about the dangers of a no deal Brexit

On 31 January the Institute for Government published a paper entitled ‘Brexit: two months to go’. The purpose of the paper is to assess, with only two months to go until Brexit, what the state of the UK Government’s progress is in preparing to leave the EU without a deal, and it makes for a sobering read.

The paper notes that ‘even if the Government had been preparing for no deal from the day after the referendum in 2016, under three years would have been a much more compressed timetable than was required for other major (though much simpler) programmes like Universal Credit, Automatic Pension Enrolment or the 2012 Olympics’. Of course, as everyone is aware, and as the paper goes on to point out, the Government did not start preparing for no deal on day one.

Amongst other points made, the paper notes that only around 100 of the required 600 statutory instruments required for a no deal Brexit have made it through Parliament (with almost half not yet tabled!) and that the UK has still not said what tariff regime it proposes to operate after Brexit day. Whilst legislation can be rushed through Parliament, that necessarily reduces the time, if any at all is afforded, for scrutiny and the effect of a lack of information on tariffs will almost certainly lead to increased regulatory spending by businesses that have not had adequate time to prepare.

The paper goes on to set out two very simple tables showing what stage of readiness pieces of legislation are in, as well as the implementation in relevant areas, as we head towards 29 March. Operating on a traffic light system (green is likely to or already has achieved Royal Assent in time for a no deal, amber meaning uncertain and red meaning that the Government will face major challenges – without wishing to spoil it for you, there’s a lot more red than anything else) the paper paints a pretty bleak picture.

In relation to the implementation aspects of ‘Agriculture, fisheries and food’ it is noted that ‘there is no clarity over the UK’s approach to fishing quotas after Brexit’, and that DEFRA ‘has already recognised that it will not be ready for no deal in crucial areas such as enforcement of fishing rights and export health certificates. That’s just for starters, of course ‘UK exporters would need to get approval before being able to export any product of animal or plant origin to the EU’.

In relation to the implementation aspects of ‘Energy and environment’, ‘the UK has promised a new environmental watchdog to replace EU functions. However, this will not be in place until 2021 at the earliest’. So a minimum of 21 months without the benefit of the ‘world-leading, statutory and independent environment body’ we’ve been promised. But, perhaps more worryingly, ‘security of electricity supply for Northern Ireland in the case of a no deal is a major risk. The UK and Irish Governments are both seeking to maintain the all-island Single Electricity Market, but there is no clarity on progress to date’. Now, you may feel (or perhaps simply blindly hope) that this is something that will be, has to be, sorted out by 29 March, but the sheer fact that we’re now seven weeks from Brexit Day and no further forward must surely be causing even the most optimistic to question whether an extension to the timeframe for compliance with Article 50 should be sought.

The full report, in all its depressing glory, can be found here

 

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Environmental Law News Update

In this latest Environmental Law News Update, William Upton and Christopher Badger consider a lack of remedies for breaching air quality standards, environmentally conscious ship recycling and publication of the UK’s maritime strategy.

 

A lack of remedies for breaching Air Quality standards?

On its own facts, the case of R. (oao Shirley) v Secretary of State for Housing, Communities and Local Government and others [2019] EWCA Civ 22 could have been a planning case limited to confirming that the Secretary of State has a very broad discretion when he decides not to intervene in a planning application and ‘call-in’ the decision for his own determination. But the Court of Appeal’s decision has been asked to have a look at the wider consequences of the UK’s failure to meet its air quality standards for nitrogen dioxides.

The Claimant wanted the SoS to intervene on a planning application for 4,000 new houses in Canterbury, as the associated traffic was almost certain to make Air Quality worse in an area which was already in breach of the required standards. Despite the invitation to interpret the rules purposively, the bottom line is that the Court of Appeal has upheld Dove J’s conclusion that the only remedy the courts can order under the Directive or the UK Regulations when the relevant objectives are not being met is that the competent authority (i.e. the SoS) needs to adopt an action plan – and the ClientEarth litigation has already achieved that. There is “no room within the scheme” of the Air Quality Directive for any “freestanding responsibility” to take any specific action on permits or development consents. The Air Quality Directive and the UK’s own 2010 regulations do not, even in those or any other circumstances, compel the decision-maker to refuse planning permission, or impose on the Secretary of State an obligation to make the decision himself. Any adverse impacts on Air Quality are just another material consideration to be weighed in the planning balance.

The decision looks right on its own facts. But it also shows that, if you remove the European Commission’s power to intervene and to levy fines, as would happen with Brexit, Air Quality enforcement lacks any teeth at the national level. This should be a paradigm case study for the examination of what powers the Office of Environmental Protection should have in the draft Environmental Bill.

NOTE: The Shirley case considered the “UK plan for tackling roadside nitrogen dioxide concentrations”, published in July 2017 (and successfully challenged by ClientEarth in 2017 and 2018). As we noted in the last blog, the wider national Air Quality action plan has now been published, in January 2019. It is further analysed by William Upton here.

 

Environmentally conscious ship recycling – a level playing field?

The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships was drafted back in 2009, aiming to effectively address, in a legally binding instrument, the environmental, occupational health and safety risks related to ship recycling, taking into account the particular characteristics of maritime transport and the need to secure the smooth withdrawal of ships that have reached the end of their operating lives. However, it cannot come into force until at least 15 States have signed up. At the time of writing, only 6 States have ratified or acceded to the Convention – Belgium, Denmark, France, Norway, Panama and the Republic of Congo.

The EU has therefore taken matters into its own hands for European flagged vessels. The Ship Recycling Regulation (1257/2013) came into force on 31 December 2018. This limits EU flagged vessels to recycling facilities that are specifically approved by the EU. As of 30 November 2018 there were 26 approved facilities, although there have been applications from a number of facilities in non-OECD countries.

Waste ships that are destined for recovery from the EU but which are not EU-flagged are likely to be caught by the European Waste Shipment Regulation (1013/2006) (“EWSR”), which prohibits the export of hazardous waste (of which a waste vessel is almost certain to be) to a non-OECD country. Consequently, if any of the non-OECD facilities obtain approval to the European list, there will be a curious conflict in the legislation, in that EU flagged ships would be permitted to be transported to those approved facilities from the EU (subject to the relevant notification requirements) but ships flagged outside of the EU would not. The anomaly would exist, irrespective of the environmental performance of the facility in question.

The EWSR is therefore open to potential amendment should non-OECD facilities become approved. What effect this may have on the Basel Convention remains unanswered.

 

UK’s Maritime Strategy published

Neatly linking air emissions with life at sea, the UK has published its maritime strategy, entitled ‘Maritime 2050: navigating the future’.

The UK intends to maximise its strength in maritime professional services, whilst at the same time leading the way in taking action on clean maritime growth, enjoying economic benefits from being an early adopter or fast mover. Key points to be taken from the strategy include:

  • Legislating for a domestic framework for autonomous vessels;
  • Working with industry to develop a ‘Maritime Innovation Hub;
  • Actively driving the transition to zero emission shipping in UK waters by 2050;
  • Considering the merits of introducing a medium term target for emissions of GHGs and air quality pollutants from UK shipping; and
  • Assessing how economic instruments could support the transition to zero emission shipping in the medium to long term.

The Government cites the fact that it is clear that a global transition to a cleaner and greener maritime sector is underway but it is highly dependent on the development and swift uptake of clean technologies. It states that it has continued support for the Hong Kong Convention (and the EU Ship Recycling Regulation), aiming for ratification in 1-5 years. It is also intended to develop the UK’s penalty structures into line with international best practice.

The strategy, in the same way as the 25 Year Environment Plan, lacks specific detail on its proposed initiatives. Much will depend on whether or not the UK is able to pursue any form of ambitious free trade agenda with the rest of the world post Brexit and the extent to which this is likely to economically impact the maritime industry.

The full strategy can be found here

 

To keep up-to-date click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk