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Posted on: 4 February 2019
Environmental Law News UpdateTweet
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  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:
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