Environmental Law News Update

In this latest Environmental Law News Update William Upton QC and Gordon Wignall consider the potential prosecution of 1,130 environmental protestors, the application of EU waste legislation to fires on board ships and a fine of £1.16m imposed on an oil company following an offshore gas leak.

 

Revisiting the limits of environmental protest

One of the unusual features of the London protest in April by Extinction Rebellion was the low number of people charged – only about 70 or so of the 1130 who were arrested. We now have the answer – the police have been waiting their time. Everyone arrested has been under investigation, and the Deputy Assistant Commissioner Laurence Taylor is now quoted as saying “it is our anticipation that we are putting all of those [arrested] to the Crown Prosecution Service.” At the time the police stated that they were balancing the rights of those engaged in lawful protest against the needs and rights of Londoners to go about their daily lives with minimum disruption, and only arrested those who were not acting within the law. Those protests lasted 11 days and included a boat bolted to the ground in Oxford Circus and two disabled trucks with protesters either on top or glued to them.

Assuming the CPS does decide to commit its limited resources to this, the prosecutions will test the courts. There is a right to protest in a peaceful way, even if it causes some obstruction, and Section 14 conditions on public assemblies (under the Public Order Act 1986) can only be imposed ‘as they appear necessary to prevent serious disorder, disruption of the life of the community, or intimidation’. After all, Parliament declared a climate emergency on 1st May.

The Met Police are also quoted as saying they want to review the public order legislation to discourage a similar style of protest.

 

Waste shipments

On 14 July 2012, during a voyage from Charleston to Antwerp, the MSC Flaminia, a container ship carrying 5,000 containers, caught fire. It had to be towed to Wilhemshaven, where arrangements were made to have it repaired in Romania.

The authorities in Germany required the vessel to undergo the notification procedure laid down in the Waste Shipments Regulation (1003/2006). The notification procedure in such circumstances is complex, and requires assessments to be undertaken which, necessarily, could not have been undertaken prior to the voyage.

The owners undertook the notification procedure under protest. Article 1(3)(b) expressly excludes the following from the scope of the Regulation: “waste generated on board … ships until such waste is offloaded in order to be recovered or disposed of”.

After the German authorities pronounced the appeal process “devoid of process”, the owners sued them for the costs they had incurred by reason of the notification procedure. This led to the request for the preliminary ruling, neither the Advocate General nor the ECJ having much hesitation in deciding that Art.1(3)(b) applied, with the result that waste generated by reason of a fire on board ship is excluded from the scope of the Regulation.

The Member State authorities had objected that notification under the WSR would provide the means of ensuring that the environment was properly protected. The ECJ, however, pointed out that other conventions (notably Marpol) provided effective regulation, and indeed that the use of the WSR procedure was likely only to delay and hinder effective environmental protections.

See Container Schiffarts-GmbH & Co KG Ms “MSC Flaminia” v. Land Niedersachsen C-689/17 (16 May 2019).

 

Marathon Oil fined £1.16m for offshore gas leak

On Boxing Day 2015 pipework on the Brae Alpha platform catastrophically ruptured, resulting in a significant leak of methane. The rupture led to an improvement notice served on 14 January 2016, describing a failure to maintain pipework “in an efficient state, in efficient working order and in good repair”. The HSE’s notice went on to state that failures on the part of the operator “exposed personnel on the Brae Alpha installation to an unacceptable risk of serious personal injury from fire and explosion”.

This was not the first improvement notice served on Marathon Oil in relation to Brae Alpha, and improvement notices have been served subsequently.

In consequence of the incident on 26 December 2016, on 20 May 2019, at Aberdeen Sheriff Court, Marathon Oil was fined £1.16m after admitting breaches of the Offshore Installations (Prevention of Fire and Explosion, and Emergency Response) Regulations 1995 and the Health and Safety at Work Act.

No one was injured in the incident. Most of the 100 personnel on the platform had been gathered in the accommodation block, ahead of their Boxing Day meal, and so they were not near the leak. Both the timing of the incident and the fact that the gas did not ignite was described by the HSE as fortuitous.

 

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Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Natasha Hausdorff and Mark Davies consider legal action against Shell by Friends of the Earth, specialist environmental tribunals and the Government’s assessment of progress against the 25 Year Environment Plan.

 

Shell taken to Court by Friends of the Earth

On 5 April 2019 a summons was delivered to Shell’s headquarters in the Netherlands following the commencement of action in the Court of Appeal in The Hague by Friends of the Earth Netherlands (“FOEN”) on behalf of more than 30,000 people from 70 countries. FOEN argue that the Court of Appeal has jurisdiction to hear the case as Shell’s climate change policy is set by its headquarters in The Hague.

The summons was accompanied by a 236-page complaint that set out Shell’s early knowledge of climate change and its role in causing it. The case itself alleges that Shell is breaching its duty of care and threatening Articles 2 and 8 of the ECHR by knowingly undermining the prospect of global temperatures being kept below 1.5oC, the threshold identified in the 2018 Intergovernmental Panel on Climate Change (“IPCC”) report.

If FOEN are successful, the remedy sought is that Shell must reduce its CO2 emissions by 45% by 2030 compared to 2010 levels, and to zero by 2050. This would require wholesale changes in Shell’s business, and, by contrast, Shell’s latest annual reports apparently states that it expects to lower its carbon emissions by 3% by 2021; evidently the parties are some way apart on the numbers.

The action is being spearheaded by the same lawyer who was successful in the Dutch Urgenda case and it appears to largely rely on the same principles of the Dutch Civil Code (in particular 6:162 – unlawful endangerment).

As a parallel, readers may be interested to consider the case of Saúl v RWE, (the case involving the Peruvian farmer and mountain guide, which has now entered its fourth year of litigation – in September 2018 experts were appointed to whether RWE’s actions constituted a serious threat to the Claimant’s property) is resolved and whether, despite it being concerned with property rights and having been commenced prior to the IPCC report, it has any bearing on the Shell case.

The press release for the Shell case may be found here

 

Michael Gove considering specialist environmental tribunals

The Environment Secretary answered questions last week on the ‘EU Exit and the Environment’ at the 16th meeting in 2019 of the Environment, Climate Change and Land Reform Committee, in the Scottish Parliament.

In response to questions concerning the imposition of penalties and fines, Mr Gove mused on possible enforcement alternatives to fines and indicated:

We are exploring whether there should be a new system of environmental law tribunals, not to mirror but to emulate some of the good work that immigration and employment tribunals do, by developing a body of expertise in the legal profession that ensures that we have rapid adherence to regulations and laws that guarantee environmental protection.”

The UK Environmental Law Association’s conference was told, last year, that the expansion of the First-tier Tribunal’s environmental remit had stalled, following Emeritus Professor Richard Macrory’s presentation of a “four-point plan for creating a specialised environmental tribunal system” and an expansion of the role of the Environment Tribunal. The tribunal system had been endorsed in particular due to its flexible procedure rules, and as experts may be drafted in to hear cases alongside a judge.

The Environment Secretary confirmed via video link to the Scottish Parliament on 15 May that the Office for Environmental Protection will be a fully independent, arm’s-length body and that the appointment of the chair would be subject to pre-appointment hearings, so that the members of the House of Commons could have “absolute confidence” in the appointee.

Commenting on Brexit, Mr Gove further clarified his approach on secondary legislation, in the form of statutory instruments, noting that these need “to be put in place in order that we can prepare for a variety of eventualities in the process of exiting the EU”, and thanking the Scottish Government and its officials for their hard work, under considerable time pressure, to ensure that agreement was secured on key areas.

A transcript of the dialogue is available here

 

The 25 Year Plan: does it add up?

or: 4 + 4 + 32 = 37?

In January 2018 the Government published its 25 Year Environment Plan. There’s no point in having one of those unless you check from time to time to see how it’s doing, so (as promised) the Government has now published a 25 Year Environment Plan Progress Report reporting on the first 15 months. The Report states that “of the 40 priority actions expected to make the most significant contribution to the ten goals of the Plan, four have already been delivered”, namely:

  • a Clean Air Strategy
  • appointment of a national Tree Champion (Sir William Worsley)
  • publication of a new Resource and Waste Strategy
  • establishment of the Council for Sustainable Business

None of these actions per se has any practical effect at all on the environment, but they all either mandate or enable practical action to be taken. So a step on the way, and the Clean Air Strategy for one is already producing practical results. The Report also states that “Four actions are subject to minor delays”, namely:

  • putting in place more sustainable drainage system
  • improving soil health and restoring and protecting our peatlands
  • minimising the risk of chemical contamination in our water
  • working with delivery bodies to build on Area Integrated Plans to develop local natural capital plans.

The Report further states that “A further 32 are on track for timely delivery”. Yes, that adds up, 4 + 4 + 32 = 40.

The Plan itself does not actually contain any obviously discernible list of 40 “priority actions” (it does contain various bullet points headed “Action we will take include:”, but there are 168 of these). The Report nevertheless contains “Table 1 – Status for priority actions”, which does indeed contain four items listed as “Completed 18/19″ (as above) and four further items said to be “In progress, minor delay” (also as above). So, no doubt, the other 32 are also to be found there …

Mysteriously, Table 1 contains only 29 other items, making a total of 37 not 40. What other three priority actions exist, what progress has in fact been made with them, and where have they gone? Students of environmental law with post-exam time on their hands may care to research the point, in return for the promise of a reward for the first demonstrably correct answer.

As the Report acknowledges, “at the heart” of the achievement of the Plan is the Environment Bill, said to provide “stronger environmental governance”. The substance (or perceived lack thereof) of the Bill is already under strong critical scrutiny. It is in turn the product of Brexit, controversial scrutiny of which will not have escaped anyone. It is thus plain that the Plan is at something of a crossroads at an early point in its 25 year journey. The Report on its progress is 75 pages long and will undoubtedly itself enjoy detailed scrutiny by NGOs and other ‘stakeholders’ in the environment.

 

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Environmental Law News Update

In this latest Environmental Law News Update, Charles MorganChristopher Badger and Frances Lawson consider the Environment Agency’s flooding strategy consultation, thoughts on Ofwat’s future direction and a new Government consultation on the future of carbon pricing post-Brexit.

 

Environment Agency consult on flooding

The most recent climate change predictions confirm that we will experience wetter winters and drier summers, with an increased chance of more intense rainfall leading to flooding. In all predicted climate futures we will experience a continued rise in sea level, well into the next century. This will affect our coastline significantly.

It is against this background that the Environment Agency is looking for views on a draft strategy which it states “aims to create a nation resilient to flooding and coastal change to the year 2100”. It is estimated by the Environment Agency that as a nation we will need an average annual investment of at least £1 billion in flooding and coastal change infrastructure over the next 50 years. Mention is even made in the draft strategy of planning for a 4 degrees celsius rise in global temperatures.

The strategy includes a number of high level strategic objectives such as:

Between now and 2050 the nation will be resilient to future flood and coastal risks

and

Between now and 2030 all those involved in managing water will embrace and embed adaptive approaches to enhance the resilience of our environment to future flooding and drought.”

However, in contrast to the 25 year Environment Plan, the draft strategy puts forward specific measures designed to achieve its aspirational aims, with reference to dates for action. These include reviewing the green finance strategy by 2021 to explore new options for funding and financing flooding and coastal change and imposing a requirement on all risk management authorities that they will report on the resilience of their flood and coastal change infrastructure in a nationally consistent way by 2024.

The aspirational nature of the draft strategy may never make it way to a policy decision. At page 6 the strategy’s status is made clear:

This draft strategy is not a policy document but a consultation by the Environment Agency, reflecting its own views and those we have heard from other stakeholders. Policy on flood and coastal erosion risk is for the government and the strategy will be finalised in the light of the consultation responses and the government’s forthcoming national policy statement on flood and coastal risk before being submitted to the Secretary of State for Environment, Food and Rural Affairs for approval.”

In addition, environment minister Thérèse Coffey announced that the government was launching its own call for evidence to inform future action on flood and coastal erosion risk. This may lead to interesting tensions when the Environment Agency come to publish its final document to be laid before Parliament in winter this year.

The consultation can be found here

 

Have a chat with Ofwat

Behind the water industry sits Ofwat, its economic regulator. Even most legal practitioners are unaware of many of its multifarious functions, duties and powers under the Water Industry Act 1991. Its public profile is largely confined to its control over prices (or the “five-yearly reset of revenue allowances, performance commitments and incentives” as the document under review puts it). Most of its written products are longish tracts of rather dry prose. Now, in an earnest bid to attract the public’s attention and to obtain input to its strategy, comes “Ofwat’s emerging strategy: Join the conversation”, a 20 page document with at least as much space devoted to colourful pictures as words, including photographs of human beings (though no other species) of all ages interacting with their aqueous environment by swimming, surfing, whitewater rafting and … growing onions (no water at all visible in that last picture, but they wouldn’t grow without it, would they?). There is also a very interesting picture on p.17 of a Metropolitan Vickers Power Factor Meter (thought to be early post-war), without which it would be difficult to make much sense of the rest of the document.

The prose remains drier and somewhat jargon-ridden. Ofwat identifies the future challenges (resources, resilience, environmental pressures, customer expectations, reputational issues and affordability) and there is a useful list of applicable policy documents. It then sets out its thoughts about its future approach to its role. It does (possibly intentionally) manage a single pun, referring to “untapped opportunities” available to water companies.

The expressed purpose of the document is to inform Ofwat’s strategy, to be published in the autumn. The document itself poses no specific questions for consultation, however the invitation to participate directs the reader to a link and also provides a Twitter hashtag (for those who like to be brief). The link leads to a page containing another link which does take the would-be consultee to a page containing a number of questions for completion (and an e-mail address).

 

New Government consultation on the future of carbon pricing post-Brexit

Given the probable departure of the UK from the EU Emissions Trading Scheme (‘EU ETS’) after Brexit, it is unsurprising that the Government has opened a consultation on alternatives thereafter. The consultation, run by the Department for Business, Energy and Industrial Strategy (‘BEIS’) covers the devolved administrations as well as England, and seeks stakeholders’ and wider public views as to how carbon should be priced and traded outside of the EU ETS until 19th July 2019.

The consultation does not set out a blank canvas as to future carbon pricing. Rather, it explains that in line with its Clean Growth Strategy, the Government is committed to establishing an approach which is at least as ambitious as the current EU ETS in its targets. Further, in line with earlier political declarations on the subject, the Government’s preferred option is for a UK ETS linked to the EU ETS. Nevertheless, the consultation acknowledges that should it not prove possible to conclude a linking agreement with the EU, alternative options will need to be in place. Chief among these are a standalone UK ETS or a tax on carbon. The fourth alternative explored in the consultation is joining Phase IV of the EU ETS even after Brexit.

Interestingly, the consultation records that “as ambitious” does not necessarily equate to a calculation of the UK’s notional share of the existing EU ETS cap. This is because the UK is estimated to accumulate a surplus of carbon allowances to the EU ETS, due in part to the significant progress the UK has made in decarbonising those sectors of the economy covered by emissions trading. As such, actual emissions from the UK traded sector are expected to be lower than the UK’s notional share of the EU ETS cap.

The proposals for a UK ETS retain free allocations, as a means of maintaining the competitiveness of those sectors at risk of carbon leakage and to support those not significantly exposed to carbon leakage in their transition to a low carbon economy, adopting the EU ETS free allocation methodology. The consultation recognises current industry concerns with the application of the cross-sectoral correction factor (“CSCF”) but does nothing to address them for the sake of stability. The UK might revisit its Phase IV proposal of additional “carbon leakage tiers” (intended to better target free allocation at those sectors at greatest risk of carbon leakage and avoid the risk of the CSCF being applied) as part of the future evolution of the system past 2030.

On an aspirational level, the consultation also welcomes further views on how a UK ETS could be used within the framework of international climate agreements and carbon market mechanisms, such as Article 6 of the Paris Agreement, with a view to making the ETS more connected to international markets in the future.

The consultation document runs to 135 pages and can be found here

 

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Environmental Law News Update

In this latest Environmental Law News Update William Upton QC, Charles Morgan and Mark Davies consider the recent confusion over licensing exemptions for wild birds, Labour’s proposals for the water industry and the decline in nature and acceleration of species extinction highlighted in a report from the IPBES.

 

Wild Bird controls confusion

The recent actions by Natural England (“NE”) appear to be an object lesson in how not to change a long-established system of licensing exemptions. The practicalities and the political storm have now led to the Secretary of State (Mr Gove) being asked by NE to take back control of granting licences for the control of wild birds under section 16(1) of the Wildlife and Countryside Act (letter from the Secretary of State on 4th May 2019). Since 1992, everyone in England had been able to rely upon three general licences (known as GL04, GL05, GL06) which enabled the use of lethal controls against certain listed bird species in order to prevent serious damage to livestock, crops, fisheries and to prevent the spread of disease; to preserve public health and safety; and to conserve other wild birds, plants and other wildlife. The general licence was a simple document, listing the species legally affected and the legally permitted methods, essentially on a single page. It had the great merit of being easily understood by everyone across a huge range of activities.

On 25th April, this came to an end, and NE have started to try to issue dozens of more specific licences. NE say that they had no choice but to accept that the general licences were unlawful (after all these years), as they had been given unequivocal legal advice that they could not defend a judicial review brought by the action group Wild Justice (started 10 weeks before). It was said that NE could not ensure or even know if the licence conditions were being met. Oddly, this seems to be a practical rather than a legal issue. It seems that justification can be made out. As the ENDS Report has noted, when the interim chief executive was asked on Farming Today on 26th April whether there would be any situation where someone might not get a licence to shoot birds, she replied, “I am struggling to envisage that.” It appears that whilst we should acknowledge that the regulator has had to change its legal stance on this use of licensing, we should worry about how it makes its decisions (however hard hit they have been by cuts).

 

More Water Leaks …

… this time from the Labour Party. At last year’s national conference the party made clear its intention to renationalise the water and sewerage industries if elected. A document Clear Water: Labour’s Vision for a Modern and Transparent Publicly-Owned Water System set out the rationale and policy. It included a section on “Compensating Shareholders” which proposed exchange of bonds for shares and indicated that “Parliament may seek to make deductions for compensation on the basis of: pension fund deficits; asset stripping since privatisation; and state subsidies given to the privatised water companies since privatisation.” Water UK (the industry’s representative body) then commissioned a study which suggested that the cost to the public purse might be as great as £90bn (including debt). Last weekend, The Sunday Times leaked the contents of an internal Labour Party document containing an estimate of only £24bn, essentially omitting from the measure of compensation any reflection of anticipated future profits and intended to reflect “how much shareholders actually put into a company”.

Those around at the dawn of privatisation in 1989 may recollect the feeding frenzy upon the public issue of shares in the new undertakers, which grew considerably in value overnight. This was doubtless encouraged by the imposition upon the newly-created Director-General of Water Services (the forerunner of Ofwat) of a statutory duty to ensure that the new companies secured “reasonable returns on their capital” (s. 7(2)(b) Water Act 1989, now replaced by s. 2(2)(b) Water Industry Act 1991) – a security which an ordinary private company and its investors would die for.

However what Parliament has given, Parliament can take away. In Clear Water, Labour opines that “The UK legal framework is clear that the level of compensation should be decided by Parliament. This was confirmed by the European Court of Human Rights in relation to the nationalisation of Northern Rock” – a reference to the case of Grainger v The United Kingdom (Admissibility) (34940/2010); (2012) 55 EHRR SE13 which declared inadmissible the challenge of Northern Rock shareholders to the terms of the compensation scheme of that nationalisation – in markedly different circumstances, namely state intervention to prevent the collapse of an entire sector of the economy following insolvency of a bank. Whether the same approach would apply to the extremely buoyant water industry is not certain.

Interesting times.

 

Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) Report highlights the danger we pose to nature

On 6 May the IPBES published a truly damning report, highlighting the dangerous decline in nature and the acceleration of species extinction. The panacea? ‘Transformative change at every level from local to global’ according to IPBES Chair, Sir Robert Watson, meaning: ‘a fundamental, system-wide reorganization across technological, economic and social factors, including paradigms, goals and values’.

Some of the headlines from the report (drawn from 15,000 scientific and government sources and complied by 145 expert authors from 50 countries over 3 years) are:

  • Average abundance of native species in most major land-based habitats has fallen by at least 20%, mostly since 1990;
  • More than 40% of amphibian species, almost 33% of reef forming corals and more than a third of all marine mammals are threatened;
  • An estimated 10% of insect species are threatened;
  • The extinction of at least 680 vertebrate species since the 16th century;
  • 75% of the land-based environment and about 66% of the marine environment have been significantly altered by human actions;
  • More than a third of world’s land surface and almost 75% of freshwater resources are now devoted to crop or livestock production;
  • Urban areas have more than doubled since 1992; and
  • Plastic pollution has increased tenfold since 1980 with 300-400 million tons of heavy metals, solvents, toxic sludge and other wastes from industrial facilities being dumped into the world’s waters annually.

Based on an analysis of the available evidence, the direct drivers, ranked in order of importance, for the changes are: (1) changes in land and sea use, (2) direct exploitation of organisms, (3) climate change, (4) pollution and (5) invasive alien species.

Given the weight of this report, and its recommendations as to the what the transformative change must entail, it will be interesting to see whether concerns about biodiversity gain greater weight in legal proceedings. This author would suggest that it would be arguable.

 

Also, on our International Climate Change BlogUK Climate Change Committee calls for zero emissions by 2050 – UK to become the world leader in carbon emissions reductions to 2050 if advice provided to the Government by its Climate Change Committee is accepted.

 

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UK Climate Change Committee calls for zero emissions by 2050

Posted by: Frances Lawson

 

The UK will become the world leader in carbon emissions reductions to 2050 if advice provided to the Government by its Climate Change Committee (“CCC”) is accepted.

The lengthy report running to nearly 300 pages advocates the UK passing new legislation to commit itself to a target unprecedented in its ambition across major world economies; zero net emissions across all sectors. Interestingly, the target reflects not only the urgency of sizeable emissions cuts in order to stay within 2 degrees of warming, but also the UK’s historic responsibility for the existing level of warming.

While some other countries have made similarly ambitious pledges, if the CCC’s recommendation is followed, the UK will become the first to put such a target into law. What also makes the plans remarkable is that they would cover the whole of the economy, including sectors such as international aviation and shipping that are typically omitted from emissions targets, and which are not covered by Parties’ commitments under the Paris Agreement or the United Nations Framework Convention on Climate Change (“UNFCCC”). The proposed UK target also does not include the buying of carbon credits from other nations. In this way, it is more ambitious than that of Sweden and Norway, whose pledges to achieve zero net emissions by 2045 and 2030 respectively do not include any of the above.

The responsible Government Department – the Business and Energy Ministry – has said it “will respond in due course” to the report. However, the indications are that the recommendation will be endorsed, Greg Clark having already gone on the record that the report “[…] now sets us on a path to become the first major economy to legislate to end our contribution to global warming entirely.”

Nevertheless, the UK’s prospective new target falls considerably short of the demands of the Extinction Rebellion campaign who are calling for zero net emissions by 2025. The CCC’s position at present is that such a date “does not currently appear credible”, although it accepts that the position could change if more rapid technological and societal change occurs.

The full report can be downloaded here

 

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