Environmental Law News Update

In this latest Environmental Law News Update, Mark Watson QCChristopher Badger and Mark Davies consider evidence given to the Environmental Audit Committee about the new Office for Environmental Protection, environmental announcements in the Treasury’s Spring Statement and publication of the European Commission’s ‘Strategic Approach to Pharmaceuticals in the Environment’.

 

Aberdeen for the new OEP?

At the Environmental Audit Committee on 20 March 2019 Michael Gove (Secretary of State for Environment, Food and Rural Affairs), and Dr Thérèse Coffey (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs) gave evidence on a number of topics, with some of the key overlapping themes being the Office for Environmental Protection (“OEP”), the scope for agreement or tension between UK central government and the devolved assemblies in relation to environmental regulation and the provisions in place in the event of a “no deal” exit of the UK from the EU.

The OEP’s function, essentially, is to fill the role currently played by the European Commission when the UK exits the EU (recently potentially rescheduled from 29 March 2019 to either 12 April 2019 or 22 May 2019); but whilst the European Commission’s enforcement powers relate to the UK as a whole, the OEP’s role cannot extend to encompass devolved assemblies, absent agreement by those assemblies. The Scottish Government published its “Consultation on Environmental Principles and Governance in Scotland” on 16 February 2019 and the Welsh Government has recently followed suit on 18 March 2019 with its consultation, “Environmental Principles and Governance in Wales Post European Union Exit”. In the absence of a Northern Ireland Executive, no similar consultation can take place in relation to that devolved government and it is understood that there will be interim alignment with the UK central government position as to the role of the OEP. It remains to be seen whether and to what extent the other two devolved governments will agree to the OEP having regulatory oversight over their arrangements.

Against this background, it was significant that during the Committee session on 20 March 2019 the Secretary of State proposed that “if there was a body that could cover the whole UK” his former home-town of Aberdeen could be the potential home for the OEP and its staff. He advanced this suggestion on the basis that Aberdeen is currently the location to one of the two offices of the Joint Nature Conservation Committee; moreover, he stated that this potential site for the OEP had been raised by him with Fergus Ewing, Scotland’s Cabinet Secretary for Rural Economy. However, a proposal to locate the OEP north of the border would only be practical in circumstances where the Scottish Government were to agree to oversight of its devolved responsibilities by the OEP, and it remains to be seen whether this is remotely likely in the current climate.

In terms of the size and composition of the OEP, the Secretary of State suggested that he would expect it to have a staff of between 60-120 full time equivalent employees (as compared with what he estimated as being a UK government employed staff of “in the two-hundreds” in relation to Directorate-General for the Environment in Brussels).

In the arguably unlikely event that the draft Brexit Withdrawal Agreement is approved by Parliament later this week or shortly thereafter, the transitional period will come into place and the UK will continue to be governed by EU law until 31 December 2020. In this event, there will be reasonable time to enable the UK central government to set up and establish the OEP (and for the devolved governments, if they choose to do so, to set up their own equivalent bodies).

However, in the event of a “no deal” Brexit there will be no transitional protections and the establishment of the OEP (and any devolved analogues) will be many months away. The Secretary of State was specifically asked by the Committee about any interim arrangements in place to fill the void until the OEP could be established and functioning. He replied that there would be an “interim secretariat” which would provide an essential level of function until the OEP was set up and in a position to discharge its duties. The Under Secretary of State explained that the “interim secretariat” would consist of only 16 full time civil servants but would be ready, if necessary, to step into the breach on 30 March 2019, albeit that “we don’t want to get into big announcements about the interim secretariat because we are all still hoping that we won’t be leaving on Friday 29th March without a deal”. What could possibly go wrong?

 

2019 Spring Statement: The Environment

On 13 March 2019 Philip Hammond delivered the Government’s 2019 Spring Statement. Key environmental announcements include:

  • Following consultation, the Government will use the forthcoming Environment Bill to mandate biodiversity net gain for development in England;
  • Later this year the Government will launch a comprehensive global review of the link between biodiversity and economic growth to be led by Professor Sir Partha Dasgupta, Emeritus Professor of Economics at Cambridge;
  • 445,000 square kilometres of ocean around Ascension Island will be designated as a Marine Protected Area;
  • A ‘Future Homes Standard’, mandating the end of fossil-fuel heating systems in all new houses from 2025;
  • Calls for evidence on whether all passenger carriers should be required to offer genuinely additional carbon offsets and on the Business Energy Efficiency Scheme; and
  • Proposals to require an increased proportion of green gas in the grid, with a view to advancing decarbonisation of the mains gas supply.

Once again, it was a speech weak on environmental policies. The 25 year Environment Plan proposes significant change without detailing the policy initiatives that are necessary to get the UK there. Back in October we commented on the Budget as follows:

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

Little in our view has changed.

 

European Commission publishes its ‘Strategic Approach to Pharmaceuticals in the Environment’

On 11 March the Commission published its ‘Strategic Approach to Pharmaceuticals in the Environment’. The Approach satisfies a requirement imposed by Article 8c of the Priority Substances Directive that the Commission must propose a strategic approach to the pollution of water by pharmaceutical substances. It starts by noting that whilst the treatment of many diseases in humans and animals relies on access to effective pharmaceuticals, the pollution caused by some is an emerging problem with ‘well-documented evidence of risks to the environment and, in relation to antimicrobial resistance, human health’.

In relation to the environment, the Approach records an example of the damage of pharmaceutical pollution as the exposure of male fish to such concentrations of the main ingredient in the contraceptive pill that the fish become feminised and unable to reproduce (those with long memories may recall that in 2007 endocrine – hormones to most of us – disrupters were blamed for twice as many girls being born as boys in some Arctic villages, see here. The Commission already has a Strategy on Endocrine Disruptors). In this blog we recently reported the effects of illicit pharmaceuticals (cocaine) on eels in the Thames. To this author’s mind, coked up eels may be one thing, but the capacity of pharmaceuticals to potentially impact of the reproductive capabilities of animals, and potentially humans too, is another altogether.

In respect of the potential impacts on human health through antimicrobial resistance, whilst these have not yet been clearly demonstrated, as the Approach makes clear, this is still an issue that is being taken seriously. So seriously in fact that, ‘the issue of pharmaceutical residues cannot be ignored’ and is said to justify a precautionary approach consistent with the Commission’s proposals to introduce a relevant parameter into the Drinking Water Directive. Here the Approach notes that of particular concern are the possible emissions from some antimicrobial manufacturing plants in third countries, which could be contributing to the development and spread of antimicrobial resistance at a global level.

The Approach notes that more information is required to understand the levels of risk posed by pharmaceutical pollution and thus states that its main objectives are to:

  • Identify actions to be taken or further investigated to address the potential risks from pharmaceutical residues in the environment, not least to contribute to the Union’s action on combatting antimicrobial resistance;
  • Encourage innovation where it can help to address the risks, and promote the circular economy by facilitating the recycling of resources such as water, sewage sludge and manure;
  • Identify knowledge gaps, and present possible solutions for filling them; and
  • Ensuring that actions to address the risk do not jeopardise access to safe and effective pharmaceutical treatments for human patients and animals.

Encouragingly, the Commission’s approach is not limited to pharmaceutical producers, but instead takes a holistic approach, encompassing medical professionals, water treatment plants, the agriculture industry and governments as well, all of whom will be required to meet the challenges posed.

There doesn’t appear to be a need to be stocking up on willow bark immediately, but this is certainly one area to keep an eye on.

The Commission’s announcement may be found here

 

We published March’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, Mark Davies and William McBarnet consider the Welsh Government’s consultation on environmental policy post-Brexit, UK plans to designate over half of the UK’s global waters as Marine Protected Areas and a recent case concerning the impact of licensing badger culls on sites of special scientific interest.

 

Welsh Government consultation shows a potential divergence of approach to environmental law post-Brexit

The Welsh Government has today announced a 12-week consultation to seek views on ‘how to address gaps in environmental principles and governance relating to Wales when the UK leaves the European Union’.

The most immediate reaction to this consultation must be why now? Why, with less than two weeks to go until the date for Brexit, has the Welsh Government opened a 12-week consultation? The assertion in the Ministerial Forward (not a typo, the consultation document really does say ‘Ministerial Forward’ rather than Ministerial Foreword’) that the Welsh Government is ‘committed to ensuring there is no drop in environmental standards’ must surely be viewed dimly in light of the time frame, although, to an extent, the Welsh Government should feel entitled to fall back on its excellent Well-being of Future Generations Act and Environment Act, which England does not possess.

In light of the Well-being and Environment Acts, the two EU Environmental Principles the consultation recognises as not being replicated in Welsh Primary Legislation are the ‘Polluter Pays’ and the ‘Rectification at Source’ principles and the consultation invites views on whether legislation should be drafted to introduce these into the existing framework.

In respect of the lack of oversight from the Commission post-Brexit, the consultation recognises three gaps in governance:

  • Independent accountability;
  • A simple and inexpensive mechanism to raise complaints; and
  • Enforcement mechanisms.

Interestingly, here the consultation arguably aims to go further than the current proposals for an Office for Environmental Protection in England in that a body is suggested that would be able to advise and scrutinise Welsh Ministers, NRW, Welsh local authorities and Ministers of the Crown, whilst, importantly, having independent appointment structures and independent sources of funding. The body would also, under the proposals, have both informal and formal enforcement mechanisms, which, under the formal process, would include the ability to refer matters to the courts where a breach continues (in a similar fashion to the Commission currently).

The end the consultation has a section on ‘Working across the UK’, which would seem to be of sensible interest to most involved in the field of environmental law. This would accord with the Welsh Government’s White Paper that called for the four UK administrations to work more collaboratively.

All in all, the consultation contains some important ideas and perhaps reinforces the progressive nature of the Welsh Government to environmental law, it is just hard to understand why it has come so late in the day.

The consultation paper may be found here

 

UK Government to designate more than half of the UK’s global waters as Marine Protected Areas

On 14 March 2019 DEFRA and the Foreign and Commonwealth Office announced that the UK would be backing plans by Ascension Island to designate over 150,000 square miles of its waters as a fully protected, no-take, Marine Protected Area.

The proposal, which would put the UK at the forefront of calls (admittedly, it should be recalled, these are calls which have made by the UK Government itself) to protect 30% of the world’s oceans by 2030, would involve closing the off-shore area to any fishing activity and safeguarding important marine habitats for future generations.

The designation would bring the total percentage of Marine Protected Areas in the UK’s territorial waters, Overseas Territories and Crown Dependencies to over 50%.

Excitingly, this is one area in which the UK does seem to be driving rising environmental standards. The current target under the United Nations Convention on Biological Diversity is to protect 10% of coastal and marine areas by 2020, and so the UK Government’s move to raise that to 30% by 2030 should be lauded.

Later in the year the Government is due to publish its international ocean strategy, so this is one area to keep an eye on.

The press release regarding the Ascension Island proposals may be found here

 

R (on the application of Langton) v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 597 (Admin.)

The High Court found that Natural England (“NE”) had failed to properly assess the impact of licensing badger culls on sites of special scientific interest (“SSSIs”). The claimant contended that Natural England’s approach in granting licences was fundamentally flawed since it omitted certain species when it was deciding on conditions culling operations in 45 SSSIs. The case provides guidance on how the courts will approach any review of NE’s decisions to grant such licences.

It is important to note that the claimant met with limited success in this case. The judge divided the SSSIs under consideration into three categories: those where licence conditions had already been amended (but where one season of ‘unreviewed’ badger control had taken place); those where NE contended that the alleged omissions would not have made any difference to the conditions which it decided to impose on the licences; and those where the SSSI citation for the site needed to be interpreted to identify whether NE had taken all special features into account in the licensing process.

The claim in relation to the sites under the first and second groupings ultimately failed for the same reason – i.e. the court would exclude from consideration sites where an omission to assess would have made no difference. Cranston J noted that the legal basis for this principle was twofold.

Firstly, under section 31(2A) of the Senior Courts Act 1981, the court must refuse relief in cases where it appears to be highly likely that an alleged omission would not have resulted in a substantially different outcome and that that principle was not restricted to conduct of a procedural or technical kind but could include a failure to consider a matter.

Secondly, section 31(2A) has to be see against the background of the court’s general disinclination to give advisory opinions and its discouragement of academic points. One reason for the this is the need to allocate resources proportionately. To take academic points in one case could encourage others to bring similar claims in other cases when the court is already hard-pressed with its caseload.

With regard to sites under the third grouping, there was debate as to what matters NE was obliged to consider when exercising its licensing function. Under section 28G of the Wildlife and Countryside Act 1981 it is obliged to take reasonable steps to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which a SSSI is of special scientific interest.

Cranston J held that the section 28G duty applies when NE makes decisions on badger control licences. The section provided a guide as to which considerations, as a matter of law, meet the test set out in Re Findlay [1985] AC 318, 333-334, per Lord Scarman that relevant considerations are considerations which are so obviously material to the decision that the legislation intends that they be taken into account.

In the circumstances of the case, relevant considerations were those special features leading to the notification of a SSSI. In this connection, there was no duty to undertake further investigation – the special features on notification remain as they are as a matter of law until renotification or denotification. Any duty NE have to protect wild habits more broadly could not, as a matter of general policy, override a statutory and common law duty which included a focus on the special features of a site.

 

We published March’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 – March 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:

– Continued scrutiny of the Environmental (Principles and Governance) Bill;

– Court of Appeal cases on abuse of process; and

– Whether invasion of privacy can be an actionable nuisance.

 

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

Environmental Law News Update

In this latest Environmental Law News Update, our new silk William Upton QC, Christopher Badger and Nicholas Ostrowski consider challenges to national planning and environmental policy, the consequences for employees if they fail to co-operate with the Environment Agency and continuing scrutiny of the draft Environment (Principles and Governance) Bill.

 

Challenging National policy – the NPPF, SEA and fracking

The Planning Court has just rejected the only general challenge that has been made to the adoption of the NPPF. One can have a lot of sympathy for the argument made in Friends of the Earth v Secretary of State for Housing, Communities and Local Government [2019] that there should have been a Strategic Environmental Assessment of the revised NPPF. It clearly, despite MHCLG’s protestations, sets the framework for future development consents of projects. Many also treat it as a binding policy document, and indeed the MHCLG itself referred to it as the “Government’s new planning rulebook” in their accompanying Press release in July 2018. But the Court was persuaded by the caselaw that the NPPF is not, as a matter of law, “required” by any legislative, regulatory or administrative provisions and therefore that the SEA Directive does not apply to it. Whilst this may look like a legal fiction, it is worth recalling that no SEA was required of the first NPPF nor for most of the National Policy Statements for NSIPs.

However, of more immediate impact is the successful challenge to the specific policy supporting fracking – para. 209(a) of NPPF 2 (regarding on-shore oil and gas development). The case was brought by an individual on behalf the ‘Talk Fracking’ campaign group – Stephenson v Secretary of State [2019] (and also heard by Dove J). The evidence showed that MHCLG had attempted to cut and paste the 2015 Written Ministerial Statement into the NPPF, and did not consider that it was making any new policy which required its own consultation. Unfortunately for them, this is not what the consultation process stated, and not – as Dove J identified – “what a member of the public engaging in the consultation process and reading the publicly available material as a reasonable reader, would have concluded the Defendant was doing”. The consultation had therefore been unfair, and unlawful. It was also unlawful to fail to take into account the Talk Fracking representations about the change in the state of scientific knowledge about the impact from fracking on climate change in deciding on the final form of the NPPF, given that it was clearly relevant to the questions posed. Dove J also confirmed that the ‘in principle’ support for unconventional hydrocarbon extraction, provided by the NPPF, will still have to be considered alongside any objections and evidence produced relating to the impact of shale gas extraction on climate change. Whilst the form of relief to be given in the court order is yet to be finalised, this judgment has already caused one public inquiry to be adjourned that we know of.

 

If employees do not co-operate with the Environment Agency there will be consequences!

S.108 Environment Act 1995 is the statutory source of most of the Agency’s investigative powers and is therefore of vital importance in the investigation of most environmental offences in this country. However, for such an important provision there are comparatively few reported authorities about how it should be interpreted.

A recent decision of the Divisional Court (Millmore and others v Environment Agency [2019] EWHC 443 LJ Legatt and Holgate J) arising out of some extraordinary facts does discuss the ambit of S.108(1)(c), (j), (k) and (l) which give the Agency power to make examinations, to require persons to give information, to require the production of information and to require persons to afford facilities and assistance to the Agency officers.

In July 2016, an investigation was brought by the Agency into Southern Water Services Limited and as part of its investigations, Agency officers visited a number of waste water treatment works where they received what was described as, at best, a lack of co-operation from employees of Southern Water. This included:

  • A management scientist, allegedly on instruction from her employer’s legal team, refusing to allow Agency officers to remove any items from the site and refusing to accompany officers on a site visit meaning that, for health and safety reasons, a site inspection could not take place
  • A process operator, allegedly on instructions from his line manager, picking up a number of site diaries which had been given to the Agency and locking them in a cupboard and, on another occasion, refusing to unlock the gates to another site
  • Two employees, one allegedly on instruction from his employer’s solicitor, removing a number of site diaries and locking them in a van and then refusing to answer questions
  • A further employee, allegedly on instructions from his employer’s solicitor, requesting that the Agency officers leave the site

The corporate entity was prosecuted but was acquitted on the basis that the Agency had failed to prove that it was criminally liable for the relevant actions of its employees. Five employees were though successfully prosecuted under S.110 Environment Act 1995 for obstructing Agency officers.

The main finding by the Divisional Court in the appeal was that that mere omission (such as refusing to open a door or gate) can be obstruction under S.110 1995 Act and that a positive act is not required to amount to an offence of obstruction under the Act. In addition, the court went on to find that there is no requirement for the consent of an occupier to be obtained before the Agency is permitted to exercise its power under S.108 1995 Act.

On the facts the court upheld the convictions for three of the five employees and directed that two of the employees were acquitted. This will be an important decision for any lawyers advising clients as to what they should advise their employees to do if the Agency comes calling.

 

Continuing scrutiny of the draft Environment (Principles and Governance) Bill

The Environment, Food and Rural Affairs Committee continues its pre-legislative scrutiny of the draft Environment (Principles and Governance) Bill. On 6 March this year, it was the turn of Michael Gove, Thérèse Coffey and Davide Minotti to give evidence.

Michael Gove emphasised that he wanted the OEP to be properly resourced and that the OEP can have at its command a battery of experts and legal staff and opinions. This highlights concerns that have been raised by many participants to the inquiry that the OEP is too dependent on DEFRA and the Secretary of State. Thérèse Coffey chipped in that the OEP will be able to make a statement essentially on whether they have had enough money or not, which no doubt will be seriously considered. In her view, the OEP is not undertaking to be a delivery partner for the Government but is very much about scrutinising Government.

It was emphasised that it is constitutionally challenging for Parliament to have an OEP that is directly accountable to it, like the National Audit Office, but which could also take the Government to Court. Michael Gove’s response was that it was the Government’s intention to make sure they had the most stable constitutional footing. When asked directly “are you convinced that this new OEP will be independent and strong enough not just to take DEFRA on, but take on the whole of Government” the response of both Thérèse Coffey and Michael Gove was effectively a resounding “yes”, in contrast to almost all of the evidence that has been received by the Committee. Davide Minotti sought to support the Secretary of State by emphasising that the Secretary of State does not have the power to direct the Board of the OEP in any way.

Reference was made to the power of the OEP to challenge the Environment Agency on its application of the law. Thérèse Coffey did not think that it would be right for the OEP to be able to legally override the decisions of the Environment Agency by issuing a legally binding notice.

Michael Gove’s response to criticisms that have been made of the reliance on judicial review to resolve disputes was to state that the Government has sought to replicate an easily understandable process, as far as possible. He didn’t rise to the suggestion that there should be an expanded role for the Environmental Tribunal, although he didn’t rule it out. Thérèse Coffey’s response was that the process that the CJEU undertakes is similar to, in effect the same as, the JR process. However, Professor Macrory has already highlighted the difference in approach between traditional judicial review and the application of Wednesbury unreasonableness and the European Court’s approach of adopting a proportionality test involving a more structured examination of the balancing interest involved. There is a real concern that reliance on judicial review will not bring the same degree of review as currently adopted by the CJEU in infringement proceedings.

The OEP’s advisory role is specifically on whether measures the Government are taking are in line with the improvement plan that is required in the draft Bill. “Are you on track” is the key question, considering the goals of the 25-year plan. Yet there is a genuine fear that nothing will actually be achieved. The Committee cited the fact that, since Michael Gove took over as Secretary of State, there have been 77 consultations, just one piece of primary legislation and 45 of the consultations have not resulted in any action whatsoever.

And on the inherent weakness in the fact that Government need only “have regard to” the environmental principles, Michael Gove simply did not accept that the provision on environmental principles was took weak. His response was that the words “have regard to” were thought to be the closest in terms of achieving the same legal effect as European provisions and he fell back on the fact that he considered this to be a well understood phrase.

The repeated approach of the Secretary of State was to insist that he was open-minded, not ruling anything out but at the same time refusing to accept that criticisms that had been made of the current draft were valid and would result in improvements. The recommendations of the Committee will prove very interesting indeed, but whether they will be taken up is another matter entirely.

 

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

Environmental Law News Update

In this latest Environmental Law News Update, Gordon Wignall, William Upton and Natasha Hausdorff consider recent authorities on abuse of process, closer scrutiny of air quality sampling and an EC consultation on new guidelines for company reporting on climate-related information.

 

The revival of abuse of process?

Recent judgments from the Court of Appeal show that judges at first instance in the criminal courts are prepared to be outraged by the regulatory behaviour of local authorities. In the context of settlement negotiations about enforcement notices, individual courts have recently stayed criminal proceedings that have been brought after defendants had been led to believe that a compromise might be reached leading to an alteration of their position to their detriment.

The cases are R v The Knightland Foundation [2018] EWCA Crim 1860, Ceredigion County Council v Robinson [2018] EWHC 2121 and Wokingham BC v Scott & Ors [2019] EWCA Crim 205. The last of the three is a particularly useful read. Much more than can be derived from it than can be adequately set out in any short commentary. The judges at first instance were supported in each case.

Ironically perhaps, these three cases come at about the time that the SFO announced the end of the first of its four Deferred Prosecution Agreements under the statutory resolution process made available to designated prosecutors by the Crime and Courts Act 2013 (Press Release, 30 November 2018).

In Wokingham BC’s case, the chief defendant withdrew his appeal against an enforcement notice “based on representations made by WBC that that they would come to a mutually satisfactory agreement”. In The Knightland Foundation’s case, enforcement officers interfered with the planning application process so that the defendant was denied his “legitimate expectation that it would be determined on its merits” (a similar finding about “legitimate expectation” also being made in WBC’s case). In both, the local authority’s desire to take advantage of the POCA regime played a part.

The Court of Appeal in WBC’s case dismissed the suggestion that a “solemn promise not to prosecute is always required to support an abuse argument”, with various authorities being considered. The Court was somewhat critical of Blackstone’s commentary on this issue.

Ultimately, the tribunal at first instance must assess all the circumstances. Practitioners will find the underlying notion of an inducement to a defendant in the context of the detailed guidance in the Code of Crown Practitioners to be a fertile area. But it is clear that judges will be affronted where they think a settlement has resulted in some detriment to the defendant, especially if it likely that a regulator has an eye to some financial advantage from POCA. There is a clear thread that the criminal courts are worried about POCA and the influence that the ability of the prosecutor to profit from the prosecution can have on a decision to prosecute. Moreover, judges in the Court of Appeal have perhaps become less likely to intervene than they once were.

These are planning cases, but the principles must be understood as applying to all environmental (and other) regulators. Lady Justice Hallett’s rejection of a possible ‘chilling effect’ on negotiations at the end of the WBC judgment is telling: that is indeed a probable result and an unintended consequence.

 

Closer scrutiny of Air Quality sampling

The next chapter in air quality litigation has begun, as governments across the EU try to comply with the relevant air quality limit values in the EU Directives. The formidable run of ClientEarth cases in our courts has already led to the production of a new Air Quality Plan for England, where many of the specific measures will need to be taken by local authorities. If that UK case has resonated across the EU, we now have an example of a Belgian case that may resonate here – the Advocate General’s Opinion has been published in Case C-723/17 Craeynest and Others (including, again, ClientEarth) v Brussels Hoofstedelijk Gewest and Others (February 28, 2019). The effectiveness of any measures need to be properly monitored, and there has always been a doubt about how far the courts should be expected to scrutinise the detailed measures.

Part of the dispute about whether an adequate air quality plan has been established for Brussels has been referred by the Belgian court to the CJEU, about the extent to which national courts may review the siting of sampling points and, secondly, whether the results from different sampling points may be averaged in order to assess compliance with the limit values. Advocate General Kokott’s advice to the CJEU is that it should hold that the national courts must examine whether the fixed sampling points have been sited in accordance with the criteria set out in the Directive, and the national courts should not restrict themselves to identifying manifest errors, on account of the importance of the rules on ambient air quality for human life and health. This may give rise to them ordering that sampling points are sited at certain locations or for the authorities to undertake further investigations in order to identify the correct locations.

Whilst there may remain some doubt about how interventionist the courts should be in an area of such complex scientific assessment, the Advocate General is surely right to recommend what should be done about the results – that compliance with the limit values for sulphur dioxide, nitrogen dioxide, PM10, lead, benzene and carbon monoxide should be assessed by reference to the measurement results from the fixed sampling points, without obtaining an average from all the sampling points. Appropriate measures must be taken where adverse effects are identified. It is only of limited importance to assessing that risk whether an exceedance applies to the entire zone on average. In one of those wry reminders about the maths, the AG makes the point that “This is clearly illustrated by the joke about the statistician who drowns in a lake even though it averages only a few centimetres in depth”.

 

EC consultation on new guidelines for company reporting on climate-related information

The European Commission has launched a consultation on the update of the non-binding guidelines on non-financial reporting, through its departments for Financial Stability, Financial Services and Capital Markets Union. Those following the development of reporting frameworks will be aware that the non-binding guidelines may well foreshadow future reporting obligations. The Commission’s planned guidelines will likely be a significant step forward on company reporting of climate-related information in this fast-evolving dynamic.

Voluntary reporting of climate information by companies has increased significantly in keeping with initiatives to improve disclosure. Building on the January report of the Technical Expert Group on Sustainable Finance, and feedback from stakeholders, this consultation seeks to drive that trend further forward in light of the urgency of the climate crisis.

The consultation has been launched as part of the Sustainable Finance Action Plan, which was adopted by the Commission in May last year, as part of a comprehensive strategy to further connect finance with sustainability in accordance with the High-Level Expert Group on Sustainable Finance. Importantly, the plan includes measures to clarify asset managers’ and institutional investors’ duties regarding sustainability and strengthening the transparency of companies on their ESG policies. The consultation looks at both how the financial performance of companies can be impacted by climate change and how companies may positively and negatively impact the climate.

The Vice-President responsible for Financial Stability, Financial Services and Capital Markets Union, Valdis Dombrovskis, said of the initiative:

The success of the Commission’s Sustainable Finance Action depends amongst other things on companies being more transparent about their impact on the climate and on the business risks and opportunities that climate change creates. I strongly encourage companies and other organisations to respond to this consultation, to help us make these guidelines as impactful as possible.”

The new guidelines on climate reporting, expected by the end of June, are intended to supplement the existing guidelines on non-financial reporting that the Commission published in 2017. It is intended that large listed companies, banks and insurance companies, with more than 500 employees, those falling under the scope of the Non-Financial Reporting Directive 2014/95/EU, will benefit from the guidelines.

The announcement of this consultation highlights the fast-developing nature of sustainable finance and company reporting requirements, as discussed at last week’s Six Pump Court seminar on ‘Company Directors and Environmental Responsibilities’.

 

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