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Posted on: 23 October 2019
Environmental Law News UpdateTweet
In this latest Environmental Law News Update Gordon Wignall, Christopher Badger and Natasha Hausdorff consider the recently published Environment Bill, the European Union (Withdrawal Agreement) Bill and whether public nuisance might provide a means of taking action in cases of climate change.
The Environment Bill is published!
The Environment Bill runs to 233 pages and is too big to cover in any detail in this blog. We are proposing to analyse the Bill in some detail in a separate article to be published soon. However, we thought it would be worth highlighting just a few important aspects of the proposed new legislation.
Significantly the Bill includes provision for the Secretary of State to set, by regulations, long-term targets in respect of the environment, in respect of periods longer than 15 years. Those powers come with a requirement that targets be set in priority areas, including air quality, water, biodiversity, resource efficiency and waste reduction, and that such targets specify the date and standard that is to be achieved, which must be capable of being objectively measured. There is some concern about a lack of short-term targets and the potential unwanted consequence that there does not appear to be any provision for holding the Government to account on these targets until the year 2037.
In setting targets, the Bill requires that the Secretary of State seek advice from independent experts, but also envisages a cost benefit analysis concerning the setting of targets and the environmental, social, economic or other impact. The bill allows the Secretary of State, in filling in the gaps in a post Brexit regulatory environment, a great deal of flexibility.
Secondly, the proposed Office for Environmental Protection (“OEP”) is required to set out in a written strategy how the OEP intends to avoid any overlap with the Committee on Climate Change (“CCC”) and the strategy must include an enforcement policy that sets out amongst other things how it determines whether failures to comply with environmental law are serious. The first point is significant as the CCC has specifically raised concerns about interference in its current relationship with Parliament and a system that it considers works well. The second point is significant as this forms part of the critical threshold test that is likely to determine how effective the enforcement function of the OEP actually is in practice.
Finally, Ministers must now “have due regard to” the core environmental principles. It is questionable whether this is actually an improvement on the previous form of words that simply required Ministers to “have regard to” the principles.
There are other nuggets, if Parliament ever gets down to considering the Bill. Part 4 would strengthen Air Quality control powers. Parts 6 and 7 deal with Nature and Biodiversity issues. Part 6 would see the imposition of a complex planning condition on almost all new development in order to secure net gains, by means of a newly-styled ‘Biodiversity gain plan’. Part 7 would implement the Law Commission’s work on Conservation Covenants.
The Bill can be read in full here
The European Union (Withdrawal Agreement) Bill
In comparison the European Union (Withdrawal Agreement) Bill runs to a mere 110 pages. It doesn’t actually contain the word “environment” in the Bill, which may be one reason why Caroline Flint, Labour MP for Don Valley, asked the Prime Minister to write a “clear non-regression clause” into the Bill. The Prime Minister responded by making that commitment. During the debate in response to a question by Pat McFadden, Labour MP for Wolverhampton South East, the Prime Minister claimed that the UK will not only match the environmental standards that Brussels brings forwards (implying a commitment to closer future alignment of environmental standards) but that the UK has the opportunity “to do better”. He highlighted this by referring to the possibility of strengthening controls on the transport of live animals, something that the PM stated is currently forbidden under EU law.
Theresa May’s Withdrawal Agreement explicitly contained a section on non-regression in the level of environmental protection (See Annex 4). Whilst we commented at the time (see here) on the lack of concrete commitments to particular environmental standards, it is interesting that the commitment to non-regression had been specifically removed from the latest Withdrawal Agreement.
Perhaps the answer is to be found in section 31 of the Withdrawal Agreement, which commits a statement on objectives for the future relationship with the EU to being consistent with the Political Declaration of 19 October 2019. That Political Declaration specifically refers to the need to ensure a “level playing field”, to prevent distortions of trade and unfair competitive advantages. To this end, there is a commitment to uphold and maintain the common high standards applicable on the environment.
The debate at second reading on the European Union (Withdrawal Agreement) Bill can be found here
The new Withdrawal Agreement and Political Declaration can be found here
Is direct legal action on its way?
Can the law of nuisance play a part in contemporary environmental concerns, or are legislative and regulatory developments all that we have?
Reports of real damage caused by climate change and air quality now make their way on to the front pages of all print and social media reports.
The Scotsman, amongst many newspapers this week, reported a study from Kings College London. This noted significant spikes of admissions to hospital on account of strokes, asthma and other acute conditions. These, along with 36,000 deaths a year are said to be attributable to air pollution.
Provisions are already in place to try and control the effects of contemporary causes of pollution, significantly traffic emissions. London’s emissions zone scheme is based ultimately on a series of complex statutory provisions allowing for charging. But this arguably does little more than mitigate the problem and it places no real control in the hands of individuals directly affected.
Public nuisance has traditionally provided a means for individuals to obtain remedies to control pollution. Given that highway authorities have ownership of the highways, it is difficult to see why parents of school-children, for instance, do not have direct private law rights to insist that highway authorities take real action to protect school areas. The likelihood is greater in London given the overall control exercised by TfL (see Southwark LBC v. Transport for London  UKSC 63).
Certain NGOs have examined whether public nuisance might provide a means of taking action in cases of climate change around the globe (for instance in respect of rising sea levels). Causation and rules restricting ‘special damage’ make such actions impracticable. But now that we have more reliable evidence available, at least in the context of air quality, such as the KCL report, will we see individuals insisting on their private law rights in UK courts?
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