Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger considers the decision by Ofwat to impose a financial penalty on Southern Water for failings in the performance of its wastewater operations, the imposition of over £3.7 million of civil sanctions on charitable organisations for environmental offences and further developments in the Manchester Ship Canal case.


Ofwat punishes Southern Water

Ofwat have issued a notice of intention to issue Southern Water with a financial penalty amounting to £37.7 million reduced exceptionally to £3 million for what it describes as “significant breaches of its licence conditions and its statutory duties”. This is on the basis that Southern Water has undertaken to pay customers about £123 million over the next five years in the form of rebates.

Ofwat concluded that Southern Water has deliberately misreported data to them about the performance of its wastewater treatment works (WwTW”). Ofwat also concluded that Southern Water failed to have adequate systems of planning, governance and internal controls in place to be able to manage its WwTW; to accurately report information about the performance of these works; and to properly carry out its general statutory duties as a sewerage undertaker, to make provision for effectually dealing with and treating wastewater.

£37.7 million amounts to 6.7% of all Southern Water’s wholesale wastewater business turnover, for 2017-2018. The maximum that could have been imposed is 10%.

There is a significant amount of detail in Ofwat’s published notice but the background is as follows. In December 2016 the Environment Agency informed Ofwat that it was investigating Southern Water in relation to problems with WwTW compliance data that the company had provided to it. Southern Water informed Ofwat about this investigation in early 2017. As a result of this information, Ofwat opened its own investigation and issued a notice requiring information in June 2017 to Southern Water.

Southern Water provided as part of its response files for a sample of sites, which led to further requests for detail. External engineering consultants were engaged by Ofwat to provide an independent review of 10 of the site files. Ofwat reports that this review identified a number of potential shortcomings in the operational and maintenance processes, documentation, decision-making and quality control systems and processes across those 10 sites. The main issues are reported as:

  • Equipment site compliance;
  • Repeated exceedences/breaches/near misses of EA permit conditions;
  • Capital investment issues;
  • Flow compliance;
  • Lack of regular/planned maintenance activities leading to the above;
  • A lack of effective mitigation measures to protect effluent quality.

Southern Water had also been carrying out its own internal investigation. It reported that irregularities in WwTW sampling processes had been identified following a review of retrieved emails and documents. This included evidence of staff anticipating the timing of planned Operator Self Monitoring samples across numerous works, in order to ensure that no effluent was available for sampling purposes. As a result of the manipulation a false picture of Southern Water’s wastewater treatment works performance was provided internally within the company, to the Environment Agency and to Ofwat.

Southern Water extensively engaged with Ofwat and restated its performance data. It has been calculated that, as a result of the data that had been submitted, Southern Water avoided price review penalties in past years amounting to a total of £75 million (in 2017-2018 prices). In addition, 991 issues were discovered which compromised (or were seen as potentially compromising) EA permit conditions, across 245 WwTW, 650 had already been resolved. Millions has been spent by Southern Water in capital costs to resolve these issues. Furthermore, the company’s spills data for 2016 -2017 across all WwTW may only be accurate to within 25% of the true values.

The findings by Ofwat are numerous and significant. Quotes include:

We … cannot rely on the company’s historic reporting of pollution events to us.”

Taken together the evidence indicates to us that the company did not, until very recently, have a clear enough idea about how its WwTW were working and the extent of work needed at each site to ensure the effective and compliant operation of its WwTW.

Senior management within the Wastewater Operations division colluded to conceal the actual performance of WwTW. A culture of data manipulation was the norm and accepted by staff across the division.”

The Notice did highlight the amount of information provided to Ofwat by Southern Water and the steps that it has taken to get back into compliance. There is a substantial Action Plan in place, as well as undertakings that have been provided by the company to Ofwat, including the implementation of customer rebates.

Environment Agency investigations continue.

The full Notice can be found here


Civil sanctions top £3.7 million

More than £3.7 million has been given to charitable organisations for environmental offences in the last 6 months, according to the Environment Agency’s latest published list of agreed Enforcement Undertakings.

The majority have been imposed against water companies, with Northumbrian Water Limited contributing £1,179,500 across 5 separate EU offers. The two biggest individual agreed Enforcement Undertakings were made by United Utilities, paying £511,000 and £500,000 respectively.

As always, although the offences are set out together with whether the offers are proactive or reactive, the published detail does not set out either an agreed characterisation of culpability or environmental harm or just the Environment Agency’s own assessment of culpability or harm. This makes it extremely difficult to use the published figures as a guide for future offers.

The amounts paid by individual companies are also highly likely to be much higher. The published figures do not include figures for investments made by the respective companies in improving their own systems or infrastructure, even though such improvements are set out in the actions that the offerors have undertaken to do.

The updated list can be found here


The Manchester Ship Canal saga rumbles on

Keeping with our water theme this week, the High Court has just issued its latest judgment in the long-running Manchester Ship Canal case.

Those familiar with the background will know this, but essentially, the Manchester Ship Canal Company Limited (“MSC”) sought in 2010 a declaration that the discharge of wastewater into its canal by United Utilities without its permission was a trespass actionable by MSC, that resulted in loss and damage. The Supreme Court held that the Water Industry Act 1991 imposed on privatised sewerage undertakers duties that it could only perform by continuing for a substantial period to discharge from existing outfalls into private watercourses and this thereby implicitly authorised the continued use of existing sewers. An undertaker was not legally permitted to discontinue the use of a sewer until it had provided an alternative sewer capable of serving as effectually. Consequently, the Supreme Court held that the undertaker was entitled to discharge into the canal from any sewer outfall which was in use on or before 1 December 1991. The Supreme Court rejected the suggestion that a sewerage undertaker had a general right of discharge through outfalls into private watercourses and consequently the date that the outfall was created or laid became critical to the rights of the sewerage undertaker.

The latest judgment considers the position where post-1991 new connections or adoptions were made to sewers discharging through pre-1991 outfalls. The Court held that it was difficult to argue that where outfalls were already in use on 1 December 1991, a sewerage undertaker was not entitled to continue to discharge from it, irrespective of the source of the waster water and material. An undertaker is obliged to accept new connections and this could not be stopped or restricted by the location of the outfall (s.106). The Court went on to hold that the Supreme Court could not have intended to exclude waste water drained pursuant to post 1 December 1991 connections and adoptions where the outfalls had existed prior to 1 December 1991.

The interesting issue arising from the judgment is the role of s.186(1) of the 1991 Act, which provides statutory protection in respect of watercourses used for draining land pursuant to local Acts. This provision requires consent of the owner to be given before any deemed “interference” with the canal by the exercise of a ‘relevant sewerage provision’. It was argued on behalf of MSC that the Supreme Court’s judgment had brought s.186 into play every time the undertaker made a new connection to the outfall under s.106.

The High Court held that, in this case, the issue was estopped from being part of the claim before the court. However, no concluded view was reached on the prospects of success about an argument based on s.186. This leaves open the inter-relationship between the implied right of an undertaker and the statutory protections provided by the legislation, no doubt to be argued on a future occasion.

Charles Morgan and Nicholas Ostrowski acted for MSC. The judgment can be found here


Have you seen this week’s new post on our International Climate Change Blog – The Heathrow judgment: what we learned about climate change law


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The Heathrow judgment: what we learned about climate change law

Posted by: Frances Lawson

The High Court judgment in the Heathrow third runway case is arguably the most extensive judicial reasoning on current UK climate change law to date.

Linked cases brought by five London boroughs, the London Mayor, environmental groups Friends of the Earth, Plan B Earth and Greenpeace, and a member of the public, challenged the 26 June 2018 decision of the Secretary of State for Transport to designate a third runway at Heathrow as Government policy in the Airports National Policy Statement (ANPS) under section 5 of the Planning Act 2008 (PA 2008).

The ten claimants, brought together in four separate claims, sought judicial review of the designation on 22 grounds, a further 13 sub-grounds, and 26 sub-issues. The grounds included the Climate Change Act 2008 (CCA 2008) and its relationship to the 2016 Paris Agreement, the law governing air quality, strategic environmental assessment (SEA), and the Human Rights Act 1998 (HRA 1998).

Lord Justice Hickinbottom and Mr Justice Holgate heard full arguments on all issues, stressing that the hearing “was concerned only with the legality (and not the merits) of the ANPS”. [669]

The judgment found only two grounds (habitats; consultation) and two-sub-grounds (SEA) as arguable, and rejected the substantive application in those, and dismissed all other 20 grounds as not arguable. [667] A copy of the full judgment can be found here.

The claimants were represented by QCs, including Nigel Pleming of 39 Essex Chambers, and David Wolfe of Matrix Chambers, making submissions in the context that a choice of third runway for Heathrow will produce “the highest carbon emissions in absolute terms” [596] as opposed to a second runway for Gatwick which the Airports Commission (AC) concluded “was associated with the lowest additional emissions”. [594]

The ANPS commits the Government to delivering the third runway “within the UK’s climate change obligations” [595] and air quality obligations [82], yet in 2026, when the new runway is due to be open [242], the Court heard evidence from the Climate Change Committee (CCC) 2016 Progress Report that:

Current policy in the UK is not enough to deliver the existing carbon budgets that Parliament has set … Current policies would at best deliver around half of the emissions reductions required by 2030, with no current policies to address the other half” [583].

Similarly, even if aviation emissions in 2050 were no higher than the level of 2005 (known as the Aviation Target) and are included at this level in the aggregate 2050 carbon budget, as they are required to be [572], then compliance with the 2050 target can only be achieved through reducing emissions in other sectors by 85% on 1990 levels [574].

The Court heard CCC advice that this reduction of 85% “is at the limit of what is feasible, with limited confidence about the scope for going beyond this” [574].

The Court also heard that in responding to CCC concerns over the impact of a third runway at Heathrow, the Secretary of State reminded the CCC “that the proposed ANPS made clear that an increase in carbon emissions that would have a material impact on the ability of Government to meet its carbon reduction targets would be a reason to refuse development consent; and the Government was confident that the measures and requirements outlined in the ANPS provided a strong basis for mitigating the environmental impacts of expansion. He indicated that these issues would be considered as part of the Aviation Strategy” [601].

In short, then, even on facts that appear to offer a strong case for the application of the precautionary principle to a major development, and even with some of London’s most senior barristers lined up to argue that case, the dismissal of all 22 grounds in Heathrow offers a drastic illustration of the limits of public law to affect Government climate change policy.

That said, the case is nonetheless a valuable addition to the fledgling common law on climate change, as well as an authority (for now) on what that law is, what it is not, and where Government obligation and liability in climate change lie. Below are some of the main points from the case as related to UK climate change law.


What laws govern the planning of a project that will impact on climate change?

Part 2, section 5(1) of the PA 2008 empowers the Secretary of State to designate a National Policy Statement (NPS) for development falling within the scope of the Act [26].

Section 5(8) includes the imperative that an NPS “must (in particular) include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change” [27].

Section 7(2) requires the Secretary of State to “carry out such consultation, and arrange for such publicity, as the Secretary of State thinks appropriate in relation to the proposal.” As the Court noted: “That gives the Secretary of State a broad discretion” [124].
And as formulated in the Gunning principles, endorsed by the Supreme Court in Moseley [2014], “the product of consultation must be conscientiously taken into account in finalising any statutory proposals” [125].

In addition, under the heading “Sustainable development”, section 10(1)–(3) of the PA 2008 says the Secretary of State “must” in exercising functions under section 5, “do so with the objective of contributing to the achievement of sustainable development”, which includes an obligation to “have regard to the desirability of … mitigating, and adapting to, climate change” [28].

Sustainable development is not defined in the CCA 2008, but is found in paragraph 7 of the National Planning Policy Framework (July 2018) (the NPPF), which adopts the definition used in Resolution 42/187 of the United Nations General Assembly (“the Brundtland definition”) stating:
At a very high level, the objective of sustainable development can be summarised as meeting the needs of the present without compromising the ability of future generations to meet their own needs” [635].

The NPPF goes on to say that achieving sustainable development means that a planning system has three overarching objectives, which are interdependent and need to be pursued in mutually supportive ways, namely an environmental objective, an economic objective and a social objective (paragraph 8). [635]

Under section 104(4) PA 2008, the Secretary of State is constrained when determining an application for a Development Consent Order (DCO) arising from an NPS if “deciding the application in accordance with any relevant [NPS] would lead to the United Kingdom being in breach of any of its international obligations.” [37]

In addition, there is a requirement to carry out a strategic environmental assessment (SEA) under Directive 2001/42/EC of the European Parliament and of the Council on the assessment of the effects of certain plans and programmes on the environment (the SEA Directive) as transposed by the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004 No 1633) (the SEA Regulations). [30]
Regulation 12(2) of the SEA Regulations also requires that the SEA report “identify, describe and evaluate the likely significant effects on the environment of (a) implementing the plan or programme; and (b) reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme” [399].

Furthermore, under normal planning procedures an environmental impact assessment (EIA) is also required under Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment as amended (the EIA Directive), as currently transposed by the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017 No 571).

However, the EIA Regulations only apply when there was a particular development for which development consent was sought, at the Development Consent Order (DCO) stage. [378] The SEA Regulations concern the environmental impact of plans and programmes, and thus applied to the ANPS [378].

How is the adequacy of Government planning that impacts climate change tested in public law?

The Heathrow judgment confirmed that the public law test for the compliance of Government decision making under the substantive requirements set out above remains the 1948 Wednesbury unreasonable standard, being a decision “so unreasonable that no reasonable person acting reasonably could have made it.

The contemporary authority is the so-called Blewett approach from 2003, dealing with the legal adequacy of an environmental statement for the purposes of an EIA of a development project under the EIA Directive and Regulations. In this regard, the Court in Heathrow noted that: “It is said that the test under the Blewett approach for judging whether an environmental statement is legally inadequate (i.e. non-compliant with the Directive) comes from the final sentence of the passage cited, namely the document must be so deficient that it could not reasonably be described as an environmental statement.” [404] It additionally commented that: “There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations…, but they are likely to be few and far between.” [403]

The court heard submissions that Blewett does not apply when determining whether an environmental report complies with the SEA Directive, because such a report must comply with the mandatory requirements of the SEA Directive, for which the test is one of “sufficient quality”, which involves ensuring that it is “based on proper information and expertise and covers all potential effects of the plan or programme in question” (see Forest Heath [2011])

The court considered the leading authorities on the issue, including Forest Heath [2011], Blewett [2004], Shadwell [2013], Edwards [2009], St Albans [2009], Ashdown Forest [2016], Seaport Investments [2008], and Gladman Developments [2014] and concluded, “it is plain that the Blewett approach is not a freestanding standard or principle: it is no more and no less than a practical application of conventional Wednesbury principles of judicial review.”

In particular, it stated: “The information in article 5(1) and Annex I which is to be included in an environmental report is that which “may reasonably be required (article 5(2)). That connotes a judgment on the part of the authority responsible for preparing the plan or programme. Such a judgment is a matter for the evaluative assessment of the authority subject only to review on normal public law principles, including Wednesbury unreasonableness.” [433]

Where an authority fails to give any consideration at all to a matter which it is explicitly required by the SEA Directive to address, such as whether there are reasonable alternatives to the proposed policy, the court may conclude that there has been non-compliance with the Directive. Otherwise, decisions on the inclusion or non-inclusion in the environmental report of information on a particular subject, or the nature or level of detail of that information, or the nature or extent of the analysis carried out, are matters of judgment for the plan-making authority … The established principle is that the decision-maker’s judgment in such circumstances can only be challenged on the grounds of irrationality … The Blewett approach is simply an application of this public law principle.” [434]

What are the UK’s binding climate change laws?

The court confirmed that the only legally binding targets directly related to climate change that the UK Government must meet are those set out in the CCA 2008.

Section 1 sets the overall target: “It is the duty of the Secretary of State to ensure that the net carbon account for the year 2050 is at least 80% lower than the 1990 baseline”. [566]

Section 5(1)(a) is the only other binding target set by the Act itself, being a carbon budget “for the budgetary period including the year 2020, must be such that the annual equivalent of the carbon budget for the period is at least 26% lower than the 1990 baseline”.

Section 4(1)(a)(b) requires the Secretary of State to “set for each succeeding period of five years beginning with the period 2008-2012 … an amount for the net UK carbon account … and to ensure that the net UK carbon account for a budgetary period does not exceed the carbon budget.”

Is the Paris Agreement target legally binding on the UK?

No. The court found the CCA 2008 was Parliament’s response to the international commitment, under the UNFCCC and the subsequent Kyoto Protocol, to keep global temperature rise to 2°C above pre-industrial levels in 2050. [562-566]

The court confirmed that under the UK’s dualist legal system international law or an international treaty only has legal force at the domestic level after it has been implemented by a national statute. [606]

In essence, then, the CCA 2008 was the UK’s implementation of Kyoto. However, the Court made clear that the more ambitious target under the 2016 Paris Agreement of holding global warming to 1.5°C, and to “well below” 2°C, has not been incorporated by the CCA 2008, and so is not legally binding.

Plan B Earth pressed the Secretary of State for BEIS to revise the 2050 carbon target under the CCA 2008 on the basis that, following the Paris Agreement, he was obliged to do so [584]. That argument was rejected by the court: “The Paris Agreement imposes no obligation upon any individual state to limit global temperatures or to implement the objective in any particular way. It expresses global objectives, and aspirations in respect of national contributions to meet those objectives; and it obliges each state party to “prepare, communicate and maintain successive nationally determined contributions that it intends to achieve’” [607].

In designating the ANPS in favour of Heathrow, the Secretary of State did not err in “failing to take into account the Paris Agreement, or the premise upon which that Agreement was made namely that the temperature rise should be limited to 1.5°C and “well below” 2°C … Nor was he otherwise obliged to have taken into account the Paris Agreement limits or the evolving knowledge and analysis of climate change that resulted in that Agreement.” [619]

Section 2(1) CCA 2008 empowers the Secretary of State to amend the target percentage, “if it appears to him that there have been significant developments in scientific knowledge about climate change since the passing of the Act, or developments in European or international law or policy.” (section 2(2) and (3)) [567]. But, following Supperstone J’s refusal of permission at an oral hearing ([2018] EWHC 1892 (Admin)), the Court held section 2 confers a power to amend the 2050 target, not a duty [585]. Thus, for the public law purposes of deciding the legality of Government decision making on climate change, the Paris Agreement target of 1.5°C can be lawfully ignored:

Nor is there anything in the PA 2008 or elsewhere that suggests that he was required to take international commitments into account. In our view – and clearly – international commitments were a consideration in respect of which he had a discretion as to whether he took them into account or not.” [647]

Does climate change engage human rights law?

Not for the purposes of public law, yet.

The court noted that the link between the use of fossil fuels and the rise in global temperatures “is now generally accepted – and accepted by all parties before the court”, and “has resulted in (amongst other things) sea level change; a decline in glaciers, the Antarctic ice sheet and Arctic sea ice; alterations to various ecosystems; and in some areas a threat to food and water supplies. It is potentially catastrophic.” [559]

The judgment also included the main conclusion of the IPCC Special Report on Global Warming of 1.5°C published on 8 October 2018. The report concludes that limiting global warming to 1.5°C above pre-industrial levels, as opposed to 2°C, would significantly reduce the risks of “challenging impacts” on ecosystems and human health and well-being; and that meeting a 1.5°C target is possible but would require “deep emissions reductions” and “rapid, far-reaching.” [590]

For global warming to be limited to 1.5°C, global net emissions of CO2 would need to fall by about 45% from 2010 levels by 2030, reaching zero by 2050 [590]. The UK’s 5th carbon budget for the period covering 2030 aims to meet that higher target of 45% reductions on 2010 levels.
However, just a few paragraphs earlier, the court included the CCC’s own 2016 Progress Report that current UK Government policies “would at best deliver around half of the emissions reductions required by 2030, with no current policies to address the other half. This carbon policy gap must be closed to meet the existing carbon budgets, and to prepare for the 2050 target and net zero emissions in the longer term.” [583]
In other words, the court recognises evidence that current Government policy on climate change increases the risk of exposing future citizens to grave and foreseeable harm. However, as noted above, there is nothing unlawful about the UK Government failing to pursue the safer target of 1.5°C, and the Court was brisk in dismissing attempts to use human rights law as grounds of challenge.

The judgment cites Supperstone J that the alleged failure of the Secretary of State to take preventative measures in the face of climate change was not arguably a breach of article 2 or 8, or of article 1 of the First Protocol (“A1P1) to, the European Convention on Human Rights (“ECHR”), and thus the Human Rights Act 1998. [585]

And in dismissing the alleged breach by the ANPS designation of Article 8 of the ECHR, and thus the Human Rights Act, the Court held that “it is well-established that the state has a wide margin of discretion in the assessment of where the balance between rights and interests (including the public interest) lies” [664]. It went on that this is: “Particularly given that the rights and interests of those residents will be at the forefront of the planning consideration of the scheme at the DCO stage – and given the scope of section 104 (see paragraph 37 above) – it is simply not arguable that, in designating the ANPS, the Secretary of State breached either article 8 or A1P1.” [664]

Is there a legally binding target for air pollution?

Effectively, yes. The judgment in Heathrow clarifies that if value limits on air pollution are breached, the Government is legally obliged to produce a plan and timetable to meet the target, and that plan must contain measures to ensure local authorities do so. Indeed, it is arguable that air quality laws now form part of the UK’s binding law on climate change, as many of the pollutants covered by air quality laws are also greenhouse gases.

The Air Quality Standards Regulations 2010 transposed Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 (the Air Quality Directive) on ambient air quality and cleaner air for Europe. Article 1(1) of the Directive imposes “binding commitments” on the UK for “ambient air quality to avoid, prevent or reduce harmful effects on human health and the environment as a whole”. [220]

Article 13 of the Directive imposes limit values on certain air pollutants, and courts have subsequently ruled the exceeding of these limits is “in itself sufficient for a finding to be made that there has been an infringement of article 13” [225]

The Government’s Air Quality Plan (AQP) has three times been declared unlawful by the courts on grounds that it failed to contain measures sufficient to ensure compliance with the Air Quality Standards Regulations 2010 [230-232].

The court heard that in 2010, the year the UK’s Air Quality Regulations was incorporated into law, 40 of the 43 UK zones subject to the Regulations were in breach of at least one of the limit values for Nitrogen Dioxide (NO2) [230]. Under the EU’s Air Quality Directive, NO2 limit values were to be achieved by 1 January 2010 [226]. After seeking an extension of time from the European Commission, the Secretary of State for the Environment was made subject of a mandatory order of the Supreme Court requiring him to prepare new AQPs in accordance with a defined timetable (ClientEarth [2015]).

The second AQP was published in December 2015, but it too was challenged and held by Garnham J to be deficient (ClientEarth [2016]). He made an order that the SSE must publish an AQP which complied with the Air Quality Directive and Regulations by 31 July 2017 [231].

That third AQP was published on 26 July 2017. It too was challenged, and Garnham J again found it to be deficient in that, although 45 local authorities (none of which was an authority concerned with these claims) were expected to achieve compliance within three years, there was no requirement that they did so and no measures to ensure they did so. The AQP 2017 was therefore found to be unlawful; but it was not quashed. It was remitted to the Secretary of State for Environment for revision to cure the identified legal defect. The AQP 2017 is therefore the current plan [232]. The AQP 2017 is said to be likely to achieve compliance with the limit values in London in 2025. [233]

In his judgments, Garnham J found – and firmly emphasised – that, where a Member State is in breach of article 13(1), it is required to prepare an AQP in accordance with the Air Quality Directive, including measures to ensure that the period the limit values is exceeded is as short as possible. In each of the ClientEarth cases, the SSE was directed to prepare an AQP that complied with the Directive within a particular period [234]. However, in the 2019 case of Shirley, the Court of Appeal held that a “demonstrable breach of article 13 does not generate some unspecified obligation beyond the preparation and implementation of an [AQP] that complies with article 23” [235].

The Heathrow judgment confirmed that, “the Court of Appeal made clear that nothing in the Air Quality Directive requires an application for consent for development which may add to the burden of pollutants to be rejected simply because of a Member State’s failure to comply with the requirements of article 13” [237].

In other words, even if a development like the third runway at Heathrow will add to air pollution, and the UK is already in breach of its own Air Quality Regulations, that in itself is not sufficient reason that the project cannot lawfully proceed.

The Hillingdon Claimants challenge the ANPS’s approach and conclusion in respect of air quality on five grounds, including:

ii) Ground 4 : In reaching the conclusion that the NWR Scheme could be undertaken without a breach of the UK’s obligations under the Air Quality Directive, the Secretary of State failed to apply the precautionary principle.

iii) Ground 5 : It was irrational to adopt and designate the ANPS in circumstances in which it was known that, if constructed and used to full capacity from 2026, there would be a high risk that the air quality obligations will be breached in the period 2026-30. [255]

A report in May 2015 by external experts, which conducted studies and analyses at the behest of the Airports Commission on air quality and noise impact, “concluded that the NWR Scheme (the third runway) would not cause any new exceedances of the limit level or air quality objective for NO2” [240].

A further report in 2017 projected that Greater London with the third runway would be compliant with the Air Quality Regulations limit values by the time the new runway is due to open in 2026 [242] and that the risk was “primarily dependent upon action to reduce emissions from road vehicles on the wider road network not upon the contribution from any airport expansion” [259].

In a somewhat Kafka-esq paragraph of judgment, the Court in Heathrow held that there was “no scope for the exercise of the precautionary principle” because:

there is no possibility of there being a breach of the air quality requirements under the ANPS in practice, because the policy itself expressly provides that “expansion must be deliverable… in accordance with legal obligations on air quality” (paragraph 2.8) … There is no risk: as a policy, the ANPS cannot result in any possible breach of the UK’s obligations under the Air Quality Directive.” [265]

Do emissions from aviation count towards the UK’s carbon budgets?

The court in Heathrow noted that section 10(2) CCA 2008 sets out various matters which are required to be taken into account when the Secretary of State sets, or the CCC advises upon, any carbon budget, including: “(i) the estimated amount of reportable emissions from international aviation and international shipping” [570].

The court continued: “Therefore, although for the purposes of the CCA 2008 emissions from GHGs from international aviation do not generally count as emissions from UK sources (section 30(1)), by virtue of section 10(2)(i), in relation to any carbon budget, the Secretary of State for BEIS and CCC must take such emissions into account” [571].

However, the Aviation Target was confirmed as not UK Government policy for the purposes of the ANPS designation. [631]

The court heard that: “The CCC has advised that, to meet the 2050 target on that basis, emissions from UK aviation (domestic and international) in 2050 should be no higher than 2005 levels, i.e. 37.5 megatons (million tonnes) of CO2 (MtCO2). This is referred to by the Claimants as “the Aviation Target”. However, the APF explains that the Government decided not to take a decision on whether to include international aviation emissions in its carbon budgets, simply leaving sufficient headroom in those budgets consistent with meeting the 2050 target including such emissions, but otherwise deferring a decision for consideration as part of the emerging Aviation Strategy. The Aviation Strategy is due tore-examine how the aviation sector can best contribute its fair share to emissions reductions at both UK and global level” (paragraph 9 of the Climate Change Annex to the Agreed Statement). It is due to be finalised and adopted later this year” [572].

Co-authored by Frances Lawson and Hugh Macleod


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Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC, Christopher Badger and Mark Davies consider the UK’s commitment to be carbon neutral by 2050, the end of the road for the M4 relief road project and substantial financial penalties for an oil refinery operator and contractor following an explosion in 2011.


Carbon neutral by 2050

Theresa May may not have achieved Brexit but she is seeking to create some form of legacy by enshrining in law a commitment from the UK to reach net zero carbon emissions by 2050. In doing so, the UK will be the first major economy to take that step. The commitment will be made by way of a change to the Climate Change Act 2008 by virtue of the snappily titled draft Climate Change Act 2008 (2050 Target Amendment) Order 2019.

Philip Hammond reportedly warned Theresa May against this step, highlighting concerns about its cost. The Committee on Climate Change has estimated that the cost of meeting the net-zero target will be 1-2% of GDP (£20 – 40 billion a year), the same figure as was previously predicted for the current 80% target found in the Act, due to what it said were rapid cost reductions in key technologies such as offshore wind. However, the Department for Business, Energy and Industrial Strategy estimated that the cost would be in excess of £1 trillion (or £70 billion per year), prompting a letter from Philip Hammond warning that this would mean less money for schools, police and hospitals. He also warned that some industries would become “economically uncompetitive” unless other countries that the UK competes with also follow suit and adopt the target.

Green campaigners highlight that the figures for costs do not include any figures for benefits resulting from the change, which are likely to include new jobs in new green industries and cleaner air and it also ignores the potential significant cost of inaction.

A full impact assessment has not been produced. The explanatory memorandum confirms that the Secretary of State has obtained the advice of the Committee on Climate Change, and took into account representations made by the Scottish Ministers, the Welsh Ministers and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland. The devolved administrations did not raise any issues with the amendment proposed.

Interestingly, the UK is currently seeking to host COP26, due to be staged in December 2020. The decision on venue will be made on 27 June in talks at Bonn. Italy, Belgium and Turkey also want to host the climate summit. Setting the net-zero target may tip the balance in favour of post-Brexit Britain.

In addition, Theresa May has rejected the CCC’s advice on international carbon credits. John Gummer, the CCC Chair, had said that it was “essential” that such credits were not used. However, the Government has stated that use of international carbon credits will ensure that the UK maximises the value of each pound spent on climate change mitigation.

So expect the following:

  • Phasing out gas use and moving to renewable energy;
  • Increased use of carbon capture and storage if the UK is to continue to use fossil fuels;
  • Increased electrification of the transport network and bringing forward the target for phasing out petrol and diesel cars;
  • An alternative to the use of concrete;
  • Significant pressure on farmers, as more than a tenth of greenhouse gas emissions come from agriculture;
  • Moving to a low meat diet;
  • Stopping biodegradable food waste from going to landfill.

Hitting the target will not be an easy task. The UK is not currently on track to hit the 80% goal and so the change to net-zero will require ambitious policy changes. The CBI has stated:

Some sectors will need clear pathways to enable investment in low-carbon technologies, and it is vital that there is cross-government coordination on the policies and regulation needed to deliver a clean future.

These tough decisions, however, seem to be for another day. For instance, critics may remember that one of grounds of challenge in the Heathrow judicial reviews was that the new draft Airport NPS is based on the 80% figure, and not the figure of 100% that the Paris Agreement would expect the government to adopt. The proposed answer is that we can deal with that later:

… For now, therefore, we will continue to leave headroom for emissions from international aviation and shipping in carbon budgets to ensure that emissions reduction strategies for international aviation and shipping can be developed within International Maritime Organisation and International Civil Aviation Organisation frameworks at the appropriate pace, and so that the UK can remain on the right trajectory for net zero greenhouse gas emissions across the whole economy.


The end of the road?

After years of preparation, and a year-long public inquiry, the First Minister of Wales has refused to confirm the Schemes, Line Order, Side Road Orders and Compulsory Purchase Orders needed to allow the 14 miles of the M4 Relief Road around Newport to be built (see link here).

The headlines have emphasised that the Minister attached greater weight than the inspector did to the adverse impacts that the project would have on the environment, in particular the protected Gwent Levels and their historic landscape. This will no doubt encourage those who are arguing against the proposals such as those for the A303 tunnel at Stonehenge, the A27 Arundel bypass or the new road in the Oxford-Cambridge growth corridor. But it would be wrong to see this decision as spelling the end of new road building in the name of the environment. The main reason actually looks to be a more traditional reason – finance. On its face, there were many good reasons for this project and the Minister did not question the Inspector’s conclusion that it would constitute at least sound value for money, and in all probability good value for money. But the Welsh Cabinet decided in April not to fund the Project in the context of the Welsh Government’s overall capital budget. This “fundamental change of circumstances from those considered by the Inspector” meant that the Minister concluded that there was now no prospect of the Project being implemented in the foreseeable future, which took away the argument that there was a compelling case to expropriate the land that was subject to the CPOs or that it would be appropriate or expedient to make the other Schemes and Orders. Having failed to satisfy those basic questions, it would have been surprising if the overall balancing exercise had not also changed fundamentally.


Oil refinery operator and contractor fined following explosion in 2011

Valero Energy UK and B&A Contracts have both been fined for breaching health and safety legislation following an explosion at the Pembroke Refinery in 2011. The explosion occurred when employees were cleaning a chemical storage tank and flammable gases that had built up inside it ignited. The subsequent explosion killed four people and severely injured a fifth. The fines handed down provide an interesting comparison to those meted out in environmental cases.

The court was reportedly told in the sentencing hearing of five broad areas of failure, which were referred to as ‘overlapping systemic failures’, with the risk of the accumulation of hydrocarbons in the storage tank failing to have been foreseen and acted upon.

Valero Energy UK were fined £5 million plus prosecution costs of £1 million whilst B&A Contracts were fined £120,000 plus prosecution costs of £40,000.

That is not, however, the full story as the fine and prosecution costs to be paid by Valero are being borne by Chevron, the owner and operator of the refinery at the time of the explosion. This no doubt raised interesting issues for the sentencing court who will have had to address the turnover and operating profit of a company substantially larger than the company actually before it.

To which end, with systematic failures having been noted (and nothing to suggest that the judge did not accept the submission), the fine of £5 million for Chevron, the company bearing the fine and one with (presumably) a turnover into the billions of pounds and (say when compared with a water utility company being sentenced for environmental offences) a relatively healthy operating profit, one might question whether this level of fine meets the step three test of being sufficiently substantial so as to have a ‘real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation’.


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Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan and Christopher Badger consider prison sentences for serial flytippers, objections to the new Rivers Authorities Bill and further detail surrounding the new Environment Bill and the Joint Unit for Waste Crime.


Prison sentences for serial flytippers

A pair of serial flytippers have been sentenced to prison and a third received a suspended sentence for dumping waste on a commercial scale across Barking, Havering, Hertfordshire and Essex between 2012 and 2014. Confiscation orders to the value of £226,755 were also made by the Court.

CCTV at a site in Choats Road in Barking showed the three men, William Jones, Glenn Harper and Shaun Collard, dumping a mix of household waste, wood and textiles from a lorry with false number plates.

CCTV at another site showed Glenn Harper and Shaun Collard dumping waste at a printing works in Thurrock, Essex. Over several nights an articulated lorry was used to tip 640 tonnes of aggregate, stones, rubble, earth clay and chalk at a site in Oliver Road, costing the owners more than £120,000 to clear.

William Jones was convicted of illegally depositing and storing baled rotting waste at a site rented from Network Rail at Waltham Cross in Hertfordshire. This site cost nearly £360,000 to clear.

Further waste was dumped at a site in Abbey Road, Barking. Shaun Collard was seen dumping waste at a construction site, having been followed by EA officers. William Jones and Glenn Harper were stopped by police trailing the lorry in a Citroen van.

Finally, surveillance evidence demonstrated Glenn Harper and Shaun Collard forcing their way in to an old landfill site in Rainham, Essex, by moving concrete blocks designed to prevent access and them dumping waste on multiple occasions.

HHJ Lees, sitting at Snaresbrook Crown Court, said that the trio’s behaviour was motivated by money, with a financial cost to landowners, residents and the public purse, as well as causing environmental damage. She sentenced William Jones to 13 months imprisonment, coupled with a confiscation order for £80,000. Glenn Harper was sentenced to 12 months imprisonment, with a confiscation order for £146,755. Shaun Collard was sentenced to 8 months imprisonment, suspended for 2 years, 200 hours of unpaid work, a curfew and ordered to pay £10,000 in costs.

The EA’s press release can be found here

Christopher Badger acted on behalf of the Environment Agency.


Torrent of objections to new Rivers Authorities Bill

Our blog posted on 18 February 2019 included a piece about the Rivers Authorities and Land Drainage Bill 2019, not a measure which one would have thought particularly controversial in comparison to such measures as the Environment (Principles and Governance) Bill 2018 or indeed the European Union (Withdrawal) Act 2018. The Bill is a private member’s bill which has enjoyed cross-party support – but not from the House of Lords. In its 54th Report of Sessions 2017-19 the House of Lords Delegated Powers and Regulatory Reform Committee has come down on the Bill like the proverbial ton of bricks, accusing the Bill of including “delegations which, in our view, are designed to allow Ministers to create a significant public body without requiring a hybrid bill”, an approach which is described as a “ploy” and “an attempt, upon flimsy grounds, to set aside the procedures which Parliament has put in place to protect the interests of citizens who would be unfairly affected by legislation”. The body in gestation is the Somerset Rivers Authority, the unofficial creation of which and its subsequent success prompted the Bill in the first place, as our earlier piece related.

A hybrid bill (at its shortest) is one containing both public measures and private measures (e.g. HS2). The special committee procedure applicable to such bills permits participation by those private individuals most directly affected. This would not be available for a private member’s bill. “We deprecate the subversion of those procedures and the troubling precedent that it would set”, says the Committee.

At the heart of the controversy are the proposed precepting powers to be given to the new rivers authorities (Somerset being the only one in contemplation). The Committee considers that there is inadequate provision for independent scrutiny of the exercise of these powers. Instead of Ministerial powers subject to the affirmative procedure, it wants a framework created by subordinate legislation subject to the negative procedure.

The Report also savages the proposals for a new system of valuation of non-agricultural land for the purposes of drainage rates levied by internal drainage boards and associated provisions for disclosure of HMRC information, each of which contain “Henry VIII powers” described as “inappropriate”.

Whilst this constitutional spat is unlikely to depose Brexit from the headlines, it is a fascinating example of democracy in action and a reminder that much other business is still being painstakingly transacted in Parliament.

Update: on 10 June 2019 in its 22nd Report of Session 2017-2019 the House of Lords Select Committee on the Constitution lent its support to the criticisms of the Delegated Powers and Regulatory Reform Committee: “We agree with the Delegated Powers and Regulatory Reform Committee and reiterate our view that it is constitutionally inappropriate to establish public bodies through delegated powers—particularly if the purpose of doing so is to avoid the bill having to go through the hybrid bill procedure.


The form of the new Environment Bill and the Joint Unit for Waste Crime

Minutes of an Environment Agency meeting held on 16 May 2019 have been published which shed a little light on the form of the new Environment Bill. The minutes record that the Environment Bill is being developed under five main chapters. These are:

  1. Governance and Accountability (including Environmental Principles and Governance and 25 Year Environment Plan statutory basis and targets);
  2. Air quality (linked to the air quality strategy);
  3. Nature (including net gain, habitat mapping and planning, forestry enforcement, urban trees, conservation covenants);
  4. Resources and Waste (linked to the Resources and Waste strategy);
  5. Water (including abstraction reform, water resources management plans, wastewater management, OFWAT responsibilities, land drainage).

It is intended that the Bill will be introduced to Parliament in June or July this year. It will place the 25 Year Environment Plan on a statutory footing. It also appears that the Bill will contain statutory environmental targets in the Governance and Accountability section. Unfortunately the minutes don’t give much of the detail away, but it will be interesting to see the extent to which these targets will be legal binding, potentially in a similar vein to the Climate Change Act 2008.

The same minutes identify that the EA has been working with the police and HMRC to develop and establish a Joint Unit for Waste Crime (“JUWC”). The JUWC will be led by the Environment Agency, chaired by the EA’s Executive Director of Operations and be overseen by a Board with a senior representative from each partner organisation. Plans for the JUWC will be presented National Police Chief Council Crime Operations Committee this month.

The minutes can be found here


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Environmental Law Podcast – May 2019

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

In this short update Charles and Chris consider and discuss:

–      legal action brought by Friends of the Earth (FoE) against Shell, for its alleged role in climate change

–      progress under the Government’s 25 Year Environment Plan, and

–      the potential prosecution of up to 1130 climate protesters following Extinction Rebellion


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


Definitely not a Treaty, but a declaratory Global Pact for the Environment

Posted by: Frances Lawson

The outcome from an intense set of intergovernmental negotiations in Nairobi was dimly predictable and all-too-familiar. Following on from the post on this blog of 11th January 2019, the not-so-neatly titled “ad hoc open-ended working group” (AHOEWG) established by General Assembly Resolution GA Res 72/772 “Towards a Global Pact for the Environment” concluded its latest and last session in Nairobi with an outcome lacking any of the ambition hoped for by proponents of a Pact. Against hopes of a legal binding treaty or instrument to give some much-needed clarity and clout to international environmental law, there is likely only to be a “political declaration” in 2022.

The 2022 date for the political declaration is not anodyne, rather it will mark the 50th anniversary of the 1972 Declaration of the United Nations on the Human Environment (“the Stockholm Declaration”), the first declaration of its kind on the human impact on the natural environment, commonly considered as heralding the start of “international environmental law”.

As Co-Chair Ambassador Duarte Lopes noted, the final outcome was a ‘weak result but consensual’. In particular, the recommendations:

  1. Simply acknowledge the value of “discussions” on the principles of international environmental law, instead of recognising the need for such principles to be codified as is the case with principles of international trade law and international humanitarian law;
  2. Call for “renewed efforts at all levels” to enhance the implementation of existing obligations and commitments under international environmental law yet shy away from any binding legal instrument to catalyse such “renewed efforts”;
  3. Stress, seemingly without irony, the importance “enhanced ambition regarding means of implementation” while in themselves representing a significant reduction in the ambition of the original GPE initiative as promoted by President Macron;
  4. Call for “enhanced cooperation” between the bodies overseeing the numerous different Multilateral Environmental Agreements (MEAs) whilst remaining silent on the means to finance and enable such enhanced cooperation;
  5. Similarly, inviting the governing bodies and secretariats of the MEAs to consider “identifying and addressing implementation challenges” in their regimes, again whilst failing to acknowledge the resource implications of such work.

Those backing a Global Pact for the Environment will continue their campaigning, backed by a small but growing list of ‘celebrity backers”. On the basis of the recommendations above, however, a quick comparative exercise between the Stockholm Declaration and the political declaration envisaged in 2022 is likely to highlight the staggering lack of progress in international environmental law over that 50-year period.

The recommendations of the AHOEWG can be found here

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Gordon Wignall and Natasha Hausdorff consider the anxiety over water resources in the UK, a DEFRA report into the progress of the reform of water abstraction in England and a challenge from ClientEarth over Highways England’s lack of progress over plans to cut pollution on its road network.


Saving it for a rainless day

Our contributor resident in the north-east of England has constant difficulty in persuading his southern colleagues that Newcastle upon Tyne suffers no more rainfall than London, as is in fact the case here

The map reveals that the true divide in this respect is not north-south but east-west, for the simple reason that the prevailing westerly winds blow in from the Atlantic and shed most of their load on reaching land. East of the Pennine Hills, there is a water shadow. One consequence is that the eastern regions suffer the greater risk of drought, and this year is proving no exception. Today, water company CEOs will join Sir James Bevan, chief executive of the Environment Agency to discuss current anxieties over water resources. You may not have noticed, but there’s been a bit of a drought already this spring (a good pub quiz question: what is statistically the driest month of the year in London? Answer: March). Last summer and autumn were also exceptionally dry. The result is that some rivers in the south-east presently have only 20% of typical flow. Indeed, so severe is the position that even United Utilities and Welsh Water, in the wetter west, are at some, albeit lesser, risk. Not for nothing did Sir James deliver a speech in March about water shortages entitled “Escaping the Jaws of Death: ensuring enough water in 2050”.

Ironically, one of the regions least at risk on resources is the north-east of England. Not because of its natural rainfall (see above) but thanks to Kielder Water. Located in north-west Northumberland, it is northern Europe’s largest man-made lake and an asset of Northumbrian Water (valued at £1 on privatisation). It holds ten times as much water as the largest reservoir in Yorkshire. As noted by Lord Bridge in the House of Lords in National Rivers Authority v The Newcastle & Gateshead Water Company [1990] RVR 48: “The Kielder facilities are described in the judgment of the Court of Appeal as a white elephant since, up to 1989, the natural flow of the region’s rivers had proved sufficient to meet the region’s demands for water without augmentation. In the summer of 1990, however, while the rest of the country was suffering a severe drought, the Kielder facilities enabled the authority’s area to escape its effects.”

This has remained the case ever since. Indeed during the drought of 1995, water from the Northumbrian system contributed to saving Yorkshire Water (and indeed Yorkshire itself) from disaster. Older readers may recollect the news footage of an endless fleet of tankers (designed for carrying everything from milk to petrol) streaming down the A1 in convoy 24/7 to replenish local reservoirs, where the scene resembled a “tanker city”. The area around Bradford came within two weeks of a rota of alternate days of water connection and disconnection. There was even a plan for mass evacuation. Since then, the Northumbrian network has been linked by pipework to the Yorkshire network at a cost of £50m so that Kielder can if need be supply Yorkshire rivers via the river Tees in a more orderly manner, thereby escaping the Jaws of Death. The rest of the country remains in a less fortunate position at times of water stress and there is no room for complacency that the circumstances in Yorkshire in 1995 could not be repeated elsewhere.


DEFRA water abstraction report May 2019

DEFRA has recently published its report into the progress of the reform of water abstraction in England, a report required by s.57 of the Water Act 2014.

The requirement for reform of the abstraction system has been a primary consideration of Parliament in relation to water since the Flood and Water Management Act 2010 and the December 2011 Water White Paper. DEFRA described proposals as unambitious, and the original timescale was brought forward.

DEFRA’s intention, at the hands of the EA as regulator, is to achieve “sustainable abstraction”. The aim is for its reforms to be brought about on a voluntary basis, but if regulatory intervention is needed, then the EA will exercise its formidable and wide discretionary powers.

One aim is to revoke unused abstraction licences, DEFRA being concerned that if they start to be used then this will impact on the deterioration of water stocks. 650 licences have been revoked, the EA having written to 4,500 abstractors inviting them to consider reducing or surrendering their licences.

282 licences have been amended or revoked under the Restoring Sustainable Abstraction programme in order to rectify environmental damage, and the programme will be completed by 2020.

1,077 of the 2,300 abstraction licences due to end by 2021 have been reviewed, the EA having an opportunity to make changes when a licence comes to an end and a new application has to be made. 5,000 of the 17,500 licences in force are time-limited.

In 2018 the EA selected four of the most challenging of the 80-odd catchments in England in order to encourage collaborative work. These are all in the east of England where there is heavy demand from the agricultural sector. A local catchment-based system is intended to inform a system of governance and stems ultimately from the Water Framework Directive. It is intended to be in place across the country in a final form by 2027 and will ultimately inform the EA’s approach to licensing and the contents of the permits which it is prepared to grant.

Licences will become permits by way of the transfer of the abstraction system to the complex Environmental Permitting Regulations, a statutory instrument which already runs to more than 500 A4 pages and 29 Schedules, and which covers radioactive substance activities, flood risk activities and anything in-between.

As to the current system of abstraction exemptions, many ‘significant’ exemptions (20 cubic metres per day and above) will require a “New Authorisation”. Transitional provisions are in place and all exempt activities which will need such an authorisation should apply by 31 December 2019, or they will be subject to new rules.

The Environment Agency has been acting under a tight timetable, hitherto without significant controversy. However, the requirements of government policy are beginning to have a more pronounced day-to-day effect on the water requirements of the consumer (via industrial undertakings), and the positions of the regulator and industry are becoming more hard-edged.

The government’s 25 Year Environment Plan places an emphasis on “unsustainable abstraction” reflecting on damage to plant and animal life. At some point, with continuing dry weather, there will be limits to which increased efficiencies (such as ‘trading’, storage and reduced leakage) will be able to ameliorate impending clashes between the consumer demand of today and the wider environment.


ClientEarth challenges Highways England over lack of action

In a letter to the government last week, ClientEarth has called out Highways England for not setting out how they plan to cut pollution across the road network. The latest figures across a small number of Highways England roads show that over a third have illegal levels of nitrogen dioxide; in some instances, the level is more than one and a half times the limit.

This step has coincided with reports that Highways England has only so far spent £7.7 million of its £100 million air quality fund, established under the Road Investment Strategy to address pollution hotspots along the 3000km of motorway and 4100km of major A-roads that it maintains. Highways England responded that they were aware of the letter and that they “remain committed to investing the £75m air quality fund through to the end of March 2020, as set out in the Government’s Road Investment Strategy”.

The Times has reported that nitrogen dioxide levels on 113 stretches of Highways England’s strategic road network exceed the legal limit. The latest available government monitoring data from 2017 suggests that the worst road, the M4 in Hounslow, West London, is more than 50 per cent over the limit.

Katie Nield speaking for ClientEarth said: “Thousands of people across the country are breathing toxic air which is making them sick. Children are particularly vulnerable. Illegal levels of pollution from traffic on major roads are a part of the problem, so it’s hard to understand why ministers are trying to shirk their legal and moral responsibility to do something about it.”

ClientEarth has said that by issuing directives to local authorities, including for the implementation of Clean Air Zones, the Government has “dumped the problem” on local authorities. It is also argued that this has led to an inconsistent approach and deadlines being missed. The organisation has called on Government to include in the proposed Environment Bill a duty for all public bodies to act on air pollution and to direct Highways England to produce a legally compliant plan with concrete time-bound proposals as soon as possible.

The campaign group has previously resorted to to court over illegal levels of NO2 across the country, to force action from ministers. It has won three previous rulings that the government’s air quality plans were inadequate.


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