Environmental Law News Update

In this latest Environmental Law News Update Christopher Badger considers plans to host the COP 26 climate summit in Glasgow, publication of the Nuclear Decommissioning Authority’s radioactive waste strategy and the announcement of a review of bio-waste sites by the Environment Agency.

 

Glasgow to host COP 26

On 10 September the UK government announced that it had received international backing to host the COP 26 climate summit in 2020 in Glasgow. The event will bring together over 30,000 delegates from around the world, including climate experts, business leaders and citizens to agree ambitious action to tackle climate change.

The nomination is in partnership with Italy, who will host preparatory events and a significant youth event as part of the agreement.

The conference has been described as the most important gathering on climate change since the Paris agreement was signed in 2015. Lasting for 2 weeks, it will be the largest summit that the UK has ever hosted, with up to 200 world leaders expected to attend on the final weekend. There will no doubt be major security concerns and a need for additional funding but this is an extraordinary opportunity for the UK to be at the very forefront of tackling climate change at a global level.

Meanwhile Greta Thunberg delivered an impassioned speech at the UN’s climate summit, describing world leaders as failing her and her generation. There was a compelling moment when Donald Trump sauntered into the conference to the furious stare of Ms Thunberg. At the summit, India, China and the EU promised to deliver tougher carbon-curbing plans in 2020. Finland declared that it would be the first industrialised nation to absorb more carbon than it emits and Pakistan promised to plant 10 billion trees in the next 5 years.

Amazon have also promised to become carbon neutral by 2040, to increase its energy from renewable sources to 100% by 2030, to invest $100 million to restore wetlands and forests and has ordered 100,000 electric delivery vehicles to reduce its fuel consumption, to enter into service in 2021.

There is, however, real criticism that the steps that are being promised are simply not enough. Many green groups are adamant that the commitments from major nations are nowhere near what is needed to stabilise the climate.

 

Nuclear Decommissioning Authority publishes radioactive waste strategy

The Nuclear Decommissioning Authority published its radioactive waste strategy on 16 September 2019. The purpose is to ensure that wastes are managed in a manner that protects people and the environment, now and in the future, and in ways that comply with government policies and provide value for money.

The key objectives of this strategy are to:

  • drive application of the waste hierarchy where it is practicable and appropriate to do so, recognising that hazard and risk reduction and nuclear safety priorities may limit its application in certain circumstances;
  • provide a robust and sustainable infrastructure, essential to the safe and effective delivery of the NDA mission by making best use of existing waste management assets and developing new fit-for-purpose waste management routes as required;
  • drive/facilitate changes in waste management behaviours and culture to ensure waste producers consider all stages in the waste hierarchy;
  • ensure waste management infrastructure is flexible to facilitate prompt decommissioning and remediation of facilities and sites where appropriate;
  • enable risk-informed waste management with greater emphasis placed on the nature of the waste rather than classification, to aid in identifying the most appropriate management route;
  • enable a lifecycle approach to the management of radioactive wastes which will help identify the most appropriate waste management route determined by the risk posed by the waste;
  • make radioactive waste ultimately disposable in a manner that protects people and the environment;
  • consider materials that may become waste in the future and to understand the implications of such scenarios on both the existing waste infrastructure and the requirements, timing and need for new infrastructure.

Disposal is one of the most controversial topics. The strategy states that the UK will need a range of disposal facilities to manage the variety of radioactive wastes, from in situ management, to licensed landfills, to a geological disposal facility for materials requiring geological isolation. It remains the position that a suitable site for a geological disposal facility will only be taken forward if the local community supports it. The NDA has also carried out an initial technical study to investigate the feasibility of near-surface facilities for the disposal of ‘Intermediate Level Waste’, which would not require the engineering and isolation requirements of a geological disposal facility. It is considered that this could provide an opportunity for an earlier disposal solution, to enable site decommissioning and remediation and, in particular, risk and hazard reduction programmes. The question that springs to mind is whether this policy approach is driven by a lack of appetite in local communities to host a geological disposal facility.

The strategy can be found here

 

Environment Agency announces review of bio-waste sites

On 13 September the Environment Agency announced that it is set to launch a review of permitted waste sites within the bio-waste sector, which includes composting, anaerobic digestion and mechanical biological treatment.

The purposes of the review are stated to ensure that there is compliance with best available techniques and emission limits, that any recent changes to legislation are embedded, to improve the quality of recovered material and to improve the performance of the sector. A standard rules consultation will be published in Autumn.

The review will begin with bespoke Installation permits and with sites presenting the highest risk or poor performance being prioritised.

The review follows a call for the evidence on bio-waste sites back in May 2018. That call for evidence identified that the sector has a long history of pollution events and amenity problems. Proposals that are likely to be advanced could include:

  • Increasing the hours that a technically competent manager is required to be present on site;
  • Restrictions to try and prevent emissions of nitrogen and ammonia;
  • Additional attention to be paid to design capacity and the operation of plants;
  • Greater attention to be paid to waste acceptance procedures.

The Environment Agency’s press release can be found here

The May 2018 call for evidence can be found here

 

Six Pump Court shortlisted for Environment/Planning Set of the Year 2019 at the Chambers UK Bar Awards

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Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC, Christopher Badger and William McBarnet consider the implications of air quality factors in planning decisions, a recommendation for flexibility in local authority waste strategies and criticism from the Natural Capital Committee of DEFRA’s environmental “progress”.

 

Getting Air Quality modelling and mitigation right

The Court of Appeal has now upheld the inspector’s decision to refuse planning permission for a housing development where the increased traffic would adversely affect local air quality – Gladman Developments Ltd. v Secretary of State for Communities and Local Government and Swale BC and CPRE Kent [2019] EWCA Civ 1543, 12 September. This upholds the decision of Supperstone J. ([2017] EWHC 2768 (Admin)) which we have previously noted in this blog.

The legal challenge mainly turned, as so many of these court cases do, on the extent to which this was a matter of planning judgement. The inquiry had heard expert air quality evidence, based on future emissions modelling, which was disputed by CPRE Kent. Given that the extra traffic would have some adverse impact on air quality in two local AQMAs, the developer, GDL, offered a substantial financial contribution in line with Defra’s own methodology by way of mitigation. But the Inspector concluded that there was no clear evidence to demonstrate the likely effectiveness of these mitigation measures, and that it might well be that the contributions to fund the measures failed to reflect the full scale of the impacts. In particular, he questioned some of the modelling assumptions, reinforced by the High Court’s finding in ClientEarth (No.2) [2016] EWHC 2740 (when it quashed the national air quality strategy) on the excessive optimism that had been used in future emissions modelling such as this.

The Courts have backed this approach. The inspector did not have to accept that, because the sum had been appropriately calculated, the mitigation measures themselves would be effective. It was for him to consider, in the exercise of his planning judgement, what their impact would be. Nor did he have to cast around for planning conditions that might make the development acceptable if they had not been suggested to him.

The case is an important confirmation of the importance of properly assessing air quality impacts on human health, and their mitigation. It is also notable that the Secretary of State accepted in court that his own duty to produce and implement a national air quality plan does not mean that planning authorities (or even his own inspectors) should presume that the UK will become compliant with the Air Quality Directive in the near future. GDL had attempted to argue that the Inspector should have accepted the assumption in the air quality modelling that the revised national air quality strategy would be in place and working by the time the development was completed. The court was content that the Inspector had to deal with the evidence about the local impacts that was actually before him, and not speculate about the timing and likely effectiveness of the Government’s revisions to the strategy.

(William Upton QC represented the local planning authority at the initial appeal, when the ClientEarth No.2 judgment was published on day 2 of the inquiry. However, the LPA were only the Second Defendant to the section 288 challenge and did not take part in the High Court proceedings).

 

Select Committee advises on local authority waste flexibility

The House of Commons’ Housing, Communities and Local Government Select Committee has held an inquiry into the implications for local authorities arising from the proposals set out in the Government’s Resources and Waste Strategy for England (“the Waste Strategy”) published in December 2018, taking evidence from a wide variety of sources including environmental organisations and local authorities themselves. The Select Committee’s key advice is that rather than enforcing a prescriptive national approach, the Government should allow the flexibility for councils to react to local conditions.

The following points were made:

1. At times, the Waste Strategy seeks to dictate systems that would be better determined by local policy makers – whilst it is reasonable for the Government to determine which materials should be recycled, local authorities should determine how waste is collected.

2. The Government should invite local authorities to review the data informing their funding estimates, publish it and commit to providing additional funding where required – despite Government promises, there is scepticism among local authorities that funding will actually be provided.

3. The Government should commit to the covering costs incurred by local authorities as a result of contract renegotiations arising from the Waste Strategy – it is likely that existing long-term contracts will need to be renegotiated and if private contractors will not cover the cost the Government should.

4. The Government has not made a strong case for the implementation of separate weekly food waste collections – the existing system works perfectly well and the Government’s scheme is likely to involve significant cost.

5. The Government is wrong to insist that local authorities collect residual waste at least every two weeks – this should be a decision for local policy makers, furthermore, the Committee was persuaded of the potential benefits to recycling rates of less frequent residual waste collections.

6. The Government should allow local authorities to retain flexibility in how dry recyclables will be collected – the Government’s suggestion that householders use six separate bins is likely to be unworkable, especially in urban areas where space is limited.

7. The Government should defer the implementation of the Deposit Return Scheme (DRS) – there are significant financial concerns arising from DRS and the Government should not add further complexity and uncertainty into the system.

8. The Government’s proposal to implement an Extended Producer Responsibility (EPR) scheme is welcomed – it is right that producers bear a greater responsibility for the disposal of materials they introduce into the system.

9. A review of EPR funding should take place every two years, with top-up funding to be provided where necessary – the EPR scheme should be a reliable, long-term source of income for council services and there is a risk that it becomes the victim of its own success, with funding declining as producers eventually improve the quality of their packaging.

The Committee found that even today the country’s recycling infrastructure was inadequate for our needs and that significant investment was required. It had praise for the ambition behind Waste Strategy but made it clear that without properly engaging with stakeholders the Government’s plans may not work in practice.

Environmental benefit versus hitting targets remains controversial. The Government’s proposals include a free garden waste collection system rather than the more frequently provided chargeable service given to households that want it. This is part of a strategy of “chasing tonnage” (prioritising the collection of heavy materials – such as garden waste – in order to meet targets), without which the Government would struggle to meet its recycling targets by 2035. The Committee concluded that although a free service might improve the Government’s recycling statistics, the environmental benefits of such a policy were less clear and noted the criticism levelled at the Government by several organisations for openly pursuing such a policy.

 

Natural Capital Committee criticises DEFRA’s environmental “progress”

The Natural Capital Committee has published its response to the 25 Year Environment Plan Progress Report. The third paragraph of the Chair’s message introducing the response reads:

Unfortunately, the Progress Report does not in fact tell us very much about whether and to what extent there has been progress. On the contrary, the Progress Report provides a long list of actions, and presents very little evidence of improvements in the state of our natural capital. This is especially disappointing since 8 years have now passed since the White Paper set its objective.

He then went on to say:

From the ad hoc evidence presented in the Progress Report, not only is there little evidence of progress, but some worrying evidence of declines in environmental quality.”

The key criticism is the lack of baseline against which to assess trends in environmental change, an over-emphasis on actions rather than real measurable outcomes, ambiguity and lack of precision in defining the 10 goals of the 25 Year Environment Plan and the lack of robust targets and milestones against each goal.

The Committee states that although natural capital is at the heart of the 25 Year Environment Plan, not a single indicator used in the Progress Report is a measure of a natural capital asset. It concludes that we are unlikely to be in a position where all of the necessary indicators will be ready prior to the creation of the Office for Environmental Protection in 2021, which will undermine the ability of the OEP to effectively perform its scrutiny function. Furthermore, the status ratings issued for around 80% of the priority actions in the Progress Report are “not fit for purpose”.

The response concludes by recommending that the government should act as soon as possible to ensure that the next Progress Report provides a more rigorous, evidence based assessment of progress. It calls for a 2020 “environmental census”.

 

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Environmental Law News Update

In this latest Environmental Law News Update Christopher Badger and Mark Davies consider turning the page on austerity, imminent compliance deadlines for pension providers to publish social, environmental or ethical considerations used in their investments and ClientEarth writes to local authorities to ask how they intend to meet their environmental obligations.

 

The end of austerity?

On 4 September, Sajid Javid, Chancellor of the Exchequer, delivered his ‘Spending Round’ speech in which he set out the Government’s spending priorities and promised that the UK has “turned the page” on austerity. £13.4 billion is to be added to the plans for total public spending.

Environmental buzzwords included cleaner energy, greener transport and a national priority of decarbonisation.

Key headlines included:

  • DEFRA is to be given £432 million of funding to set “world leading environmental standards”.

This is actually described by the Treasury as “Brexit funding”, intended to deliver a safe and ambitious departure from the European Union while setting global standards in protecting and harnessing value from the natural environment. However, DEFRA has been pledged a 3.3% increase in total funding, which will take DEFRA’s overall annual budget to £2 billion.

  • £30 million in new money is being provided to tackle air quality.
  • Another £30 million for biodiversity, including an expansion of the Blue Belt programme.
  • New funding for BEIS to develop new programmes to meet the net zero commitment by 2050.

No actual detail was provided on how this additional funding will be implemented. The Government will set out further plans for decarbonisation in the National Infrastructure Strategy, due to be published this autumn. The Chair of Natural England has already expressed his disappointment in the level of funding for biodiversity, stating that Natural England cannot do what is necessary without increased investment. Not everyone has been so pessimistic however: although the Chancellor didn’t give a figure, Chris Stark, Chief Executive of the Committee on Climate Change stated that the figure of £30 million to be spent on staff and programme expenditure would be, in his words, a “potentially huge increase in staffing” on net zero.

Of course, this could all be for nothing depending on the results of any forthcoming general election.

 

Deadline approaches for pension schemes

The Occupational Pension Schemes (Investment) Regulations 2005 have been amended to require trustees to update their ‘Statement of Investment Principles’ (“SIP”) to cover “financially material considerations over the appropriate time horizon of investments, including how those considerations are taken into account in the selection, retention and realisation of investments”. Financially material considerations include but are not limited to environmental, social and governance considerations, including climate change, which the trustees of the trust scheme consider to be financially material.

Updates to the SIPs must be in place by 1 October 2019. Any trustee who has failed to take all reasonable steps to secure compliance may be subject to a civil penalty under section 10 of the Pensions Act 1995. The maximum amount in the case of an individual is £5,000 and £50,000 in any other case. Of more importance, potentially, is the stigma that will attach to any particular occupational pension scheme that fails to properly address ESG considerations and the associated reputational risk.

Expect this to be the subject of some scrutiny. ClientEarth has already expressed its interest, writing to the trustees of 14 pension schemes that it described as “in the spotlight” after the Environmental Audit Committee highlighted that some of the UK’s largest pension scheme had a poor understanding of climate risk.

Christopher Badger and Mark Davies have written an article on the amendments which can be found here. This includes reference to pre-existing guidance for local government pension schemes which may prove both relevant and useful.

In a related move, the Institute and Faculty of Actuaries has published a ‘Practical guide to climate change for general insurance practitioners’. Insurance companies have also been a focal point for ClientEarth, who reported three to the Financial Conduct Authority earlier this year for failing to disclose climate risks in their annual reports. The practical guide can be found here

 

ClientEarth puts local authorities on notice over climate inaction

ClientEarth have indicated that they are writing to 100 local authorities currently in the process of developing their local plans to warn them of the risks of legal challenge should they not introduce ‘proper climate change plans’.

The letters reportedly give each local authority eight weeks to explain how ‘evidence-based carbon reduction targets’ will be set and how it will be ensured that these targets are ‘central’ to any new planning policies. There is of course no legal requirement for local authorities to respond to such letters, but they would be well advised to do so given ClientEarth’s history of successful challenges to bodies which fail to comply with environmental obligations.

Echoing a growing consensus that action on climate change should not be the sole preserve of central government but will require action from the individual up, Sam Hunter Jones, a climate lawyer with ClientEarth stated, “There is a collective failure by local authorities across England to plan adequately for climate change. Too often climate change is perceived to be just a national or international issue and therefore solely the responsibility of central government.”

It will be interesting to see if any of the local authorities that ClientEarth write to respond with any measures as drastic as those proposed in the 2015 opinion produced for ‘Clean Air in London’. That opinion proposed that against the backdrop of serious breaches by the UK of the limit values of the Air Quality Directive 2008/50/EC, planning authorities should refuse permission for any development that would cause worsening air quality in an area already in breach.

It would not be envisaged by this author that any local authority would be so bold as to say that there will be a wholesale block on development in order to combat climate change or improve air quality, but there are good arguments to say that local authorities should introduce stricter, greener standards in respect of all developments.

 

Chambers UK Bar Awards 2019

Six Pump Court is delighted to have been nominated for two Environment/Planning awards in this year’s Chambers UK Bar Awards. We have been shortlisted in the Environment/Planning Set of the Year category and Christopher Badger has been nominated as Environment/Planning Junior of the Yearmore here.

 

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