Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan and Mark Davies consider a case concerning the legality of an environmental permit and the coverage of environmental issues in the Labour election manifesto.

 

Environmental permits – a soluble problem

In Mott v Environment Agency [2016] 1 WLR 4338 the Court of Appeal recognised that “the court should afford a decision-maker an enhanced margin of appreciation in cases involving scientific, technical and predictive assessments.” (the case, in which members of Six Pump Court appeared, went to the Supreme Court on other issues, see Env Law News 19/2/18).

This principle has been considered in R (BACI Bedfordshire Ltd) v Environment Agency [2019] EWCA Civ 1962, which concerned a challenge to the validity of an environmental permit issued by the Environment Agency for a waste incineration plant. The challenge was supported by evidence from the redoubtable Professor Dr. Jeremy Ramsden. The permit was 220 pages in length and contained numerous conditions addressing the management of bottom ash and the containment of the heavy metals within it. These incorporated by reference a passage from the application to the effect that:

Any heavy metals within the [bottom ash] will be present as salts. These salts will be retained in solution when mixed with water and would not be expected to dissolve.”

It does not require much, if any, scientific knowledge to see that the second sentence is internally inconsistent, since something “in solution” is indeed “dissolved” as a matter of plain use of English. It was this fact, as much as the Environment Agency’s undoubted grasp of the chemical properties of heavy metal salts (including the elementary fact that they are soluble in water) which led the Court of Appeal to uphold the decision of Lang J. concluding that the Environment Agency had neither been misled by the error nor itself committed the same error and thereby wrongly assessed the risks of fugitive emissions via the surface water drainage system. Indeed the error had been expressly drawn to the Environment Agency’s attention by Professor Ramsden during the consultation process and duly noted. The permit read as a whole made it clear that the Environment Agency proceeded on the basis that the salts were soluble and had approached the assessment of the application entirely properly.

The central thrust of the decision is that the challenge, properly analysed, did not really concern “margin of appreciation” at all, but rather whether or not the decision had actually proceeded on a fundamental misunderstanding of basic physical chemistry. The judgment of Lindblom LJ, with whom Henderson and Peter Jackson LJJ agreed, contains also some interesting observations on the proper interpretation of an “all practicable measures” qualification to a condition in a permit and its reconciliation with EU requirements of an absolute nature, and the law relating to mistakes of fact in public-law decision-making.

 

The environment in Labour’s Manifesto

Labour’s manifesto for the 2019 General Election (our third in four years, let us not forget) runs to around 105 pages. Pleasingly, the section entitled ‘A Green Industrial Revolution’ takes up around 14 or so pages, which is subdivided into ‘Economy and Energy’, ‘Transport’, ‘Environment’ and ‘Animal Welfare’. Readers should note that the Labour manifesto has been covered because it was published first, not for any other reason!

Starting with the ‘Economy and Energy’ section, this contains bold statements about ‘kick-starting’ a Green Industrial Revolution by a ‘Green New Deal’, with the laudable aim of halving emissions by 2030 in accordance with recommendations from the IPCC. The introductory section finishes, ‘[Labour] have turned [the global movement on climate change’s] demands into detailed, credible plans for real change’.

The ‘detailed and credible plan’ starts with the creation of a Sustainable Investment Board (the Chancellor, Business Secretary and Governor of the Bank of England) to oversee and co-ordinate investment, with the Office for Budget Responsibility incorporating climate and environment impacts into its forecasts. A £400 billion National Transformation Fund (£250 billion of which will directly fund a Green Transformation Fund) will be launched and the Treasury’s investment rules will be re-written to guarantee that ‘every penny spent’ is compatible with climate change targets. A national Investment Bank, supported by a network of Regional Development Banks, will provided £250 billion of lending for ‘enterprise, infrastructure and innovation over 10 years’. There is also a suggestion that the rules of listing on the London Stock Exchange will be changed so that large carbon emitters will be delisted.

In relation to energy use, Labour promises 7,000 new offshore wind turbines 2,000 new onshore wind turbines, 22,000 football pitches worth of solar panels (if a football pitch is roughly an 1.76 acres, that’s 38,720 acres of solar panels – the City of London covers 716.80 acres), new nuclear power for energy security, trial and expansion of tidal energy, investment and reduction in the costs of renewable and low-carbon hydrogen production and an upgrade to the highest standards of energy-efficiency for all of the UK’s 27 million homes by 2030. A tax will be introduced on oil companies.

The section on ‘Economy and Energy’ goes on…

The section on ‘Transport’ reveals that Labour’s transport policies will be driven by cutting emissions, however most of the proposed policies (public ownership of the railways, etc.) do not reference to how they will achieve a cut in emissions. There are, however, commitments to position the UK ‘at the forefront of the development and manufacture of ultra-low emission vehicles’ and an assertion that ‘any expansion of airports must pass our tests on air qualify, noise pollution and climate change obligations and countrywide benefits’. Labour aims to end the sale of combustion engine vehicles by 2030.

The section on the ‘Environment’ is complemented by Labour’s Plan for Nature. It states that a Climate and Environment Emergency Bill, setting out in law robust, binding new standards for decarbonisation, nature recovery, environmental quality and habitats and species protection, will be introduced, and that existing EU standards of environmental regulation will be maintained and continuously improved. Other issues covered are a healthy environment, nature restoration, land, food and waste and recycling.

The final section concerns ‘Animal Welfare’. It is the shortest of all the sections (really only three paragraphs in length, although it does have a nice picture of a badger) and commits to prohibiting fox hunting and ending the cull of badgers. An animal welfare commissioner would be introduced and the sale of snares and glue traps prohibited.

In relation to the environment, all in all, Labour’s manifesto starts well with the environment playing a central role in economic policy, but then it rather fizzles out. Lots of bold claims are made but, despite the promise of ‘detailed and credible plans’, no such information is forthcoming; there is no detail as to how promises will be funded (cf. the tax on oil companies, which is a bald statement) and some of the proposals are plainly popular vote winning manifesto pledges. Grade: B-

 

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Environmental Law Podcast – November 2019

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

In this podcast, Chris and Mark consider:-

  • The Financial Conduct Authority’s (FCA) feedback statement, following discussion paper on ‘Climate Change and Green Finance’;
  • The Environment Agency’s pollution statistics for 2018; and
  • Whether nuisance might play a role in contemporary environmental concerns.

 

To listen to the podcast, click here:-

 

 

 

FCA’s feedback statement following discussion paper on ‘Climate Change and Green Finance’ – listen from 0.39 mins

The Environment Agency’s pollution statistics for 2018 – listen from 3.43 mins

Whether nuisance might play a role in contemporary environmental concerns – listen from 7.13 mins

Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger considers a successful appeal for the disclosure of privileged instructions to Counsel under the Environmental Information Regulations 2004, the adoption of legislative reforms on sustainable finance and investments by the European Council and Greenpeace claims that the UK will miss environmental targets for 2020 and beyond.

 

Environmental Information Regulations 2004 trump Legal Professional Privilege

An appellant has successfully argued that privileged instructions to Counsel should be disclosed to the public under the Environmental Information Regulations 2004.

This is part of a long-running dispute amongst residents of Malton in Yorkshire and councillors as to which site should be developed as a supermarket. The dispute culminated in a judicial review quashing the decision of the Council. The instructions had been sent to Counsel in late December 2011/early January 2012. The appellant had actually wanted the advice itself but it was acknowledged during the proceedings that this fell outside of the scope of the appeal, which centred on the instructions.

The issue for the appeal was whether the public interest favoured disclosure, notwithstanding the fact that the instructions were privileged.

The tribunal accepted that there was a clear public interest built into maintaining LPP.

However, the Appellant had strong competing arguments. She had asserted that the Council had consistently acted unlawfully and against the interests of its electorate. As part of the planning permission process, a report prepared by a planning officer had been “significantly” misleading, which resulted in powerful judicial criticisms of the Council’s decision and the quashing of that decision. Legal advice privilege should be applied where there is a genuine need for advice but never when it is used to aid misfeasance. The disclosure of the instructions would reveal whether the Council “was genuinely seeking an independent opinion or seeking corroboration of their existing view”.

The tribunal was provided with the instructions prior to making its decision and had noted that they canvassed two broad issues, neither of which were legally or factually complicated.

Despite the fact that some of these criticisms were held to be “wide of the mark” (for example, the Council were not found guilty of deliberate wrongdoing during the course of the judicial review), nonetheless the tribunal held that the public interest favoured disclosure for the following reasons (amongst others):

  1. Considerable time had elapsed since the instructions had been sent;
  2. The need to protect privilege is less compelling where the public body is really seeking advice on general points of law and the advice does not depend on any particular set of facts;
  3. To the extent that the matters canvassed were relevant to how the Council conducts itself in the future, these were matters where there was every reason for members and residents to understand the broad issues;
  4. The exception in the EIR Regulations is a qualified exception;
  5. There was an emphasis on providing maximum transparency in these circumstances;
  6. If the Appellant was expecting to find a ‘smoking gun’, they were likely to be disappointed. However, there can be a public interest in showing that a public authority acted properly in a particular respect, so that unwarranted suspicions can be allayed.

The decision, in the view of the author, is surprising. Even if the exception in the EIR Regulations is a qualified exception and therefore not absolute, there must be the inherent risk that this decision could undermine the fundamental confidence that currently exists in being able to consult lawyers without fear of subsequent disclosure, irrespective of how many years have passed. In this case, the Council appears to have lost the faith of its residents to such an extent that disclosure has been ordered, at least in part, as a means of demonstrating that on this occasion, the authority acted properly. Assessing the content of the request for legal advice also appears to be a dangerous and potentially slippery slope.

The judgement can be found here

 

European Council adopts legislative reforms on sustainable finance and investments

On 8 November the European Council adopted a set of legislative reforms which concern:

  • the creation of a new category of benchmarks contributing to sustainable finance;
  • transparency obligations for sustainable investments;
  • a new prudential framework for investment firms;
  • a harmonised framework for covered bonds;
  • rules promoting access to SME growth markets.

The texts will be signed in the week of 25 November and the published in the Official Journal of the European Union.

One of the key aspects of the reforms is that, as part of the legislative agenda driving green finance, it is intended to impose obligations on financial market participants. This includes:

  1. The publication on their website of either a) where the participant considers principal adverse impacts of investment decisions on sustainability factors, a statement of the due diligence policies with respect to these principal adverse impacts or b) where the participant does not consider adverse impacts of investment decisions on sustainability factors, clear reasons for not doing so;
  2. 1. above includes information on policies, a description of the principal adverse sustainability impacts and actions taken, engagement policies and references to adherence to Codes and Standards;
  3. Details of how remuneration policies are consistent with the integration of sustainability risks;
  4. Specific obligations in respect of financial products.

The Financial Conduct Authority has already specifically recognised the benefit of common benchmarks, standards and metrics for environmentally sustainable products and activities and has already committed to reviewing these reforms. It will be engaging with the work that results from the European Union’s ‘Action Plan on Sustainable Finance’ in Q1 2020. The standards and requirements being developed at EU level are expected to underpin approaches taken across the UK financial sector.

The press release can be found here

 

Greenpeace identifies that the UK will miss environmental targets for 2020 and beyond

According to Greenpeace and the Financial Times, the UK is on track to miss a whole range of environmental targets in the early 2020s, including many that are legally binding and come from the EU.

In particular:

  • PM2.5 emissions (fine particulate matter) are not falling fast enough to meet the 2020 or 2030 target. Households are identified as the biggest source of PM2.5, as the popularity for burning wood at home is one the rise;
  • Currently only 11% of the UK’s energy is produced through renewables. The target for 2020 is 15%;
  • Government projections see UK emissions overshooting the 4th and 5th carbon budgets;
  • Just 14% of the UK’s rivers are meeting good or better status under the Water Framework Directive. That is down from 17% in 2014;
  • The current rate of tree planting will miss the 2022 target by just under 2 million trees;
  • UK household recycling rates are at 45%, short of the 2020 target of 50%.

The report calls for critical changes in policy and government commitment to get back on track.

The report can be found here

 

 

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Environmental Law News Update

In this latest Environmental Law News Update Mark Davies and William McBarnet consider the end of government support for fracking, a criminal behaviour order imposed for noise nuisance and new Forestry Commission guidance for ‘Managing England’s woodlands in a climate emergency’.

 

Government ends support for fracking in England

At the beginning of November the government announced that it will be withdrawing its support for fracking in England (it already being banned in Wales, Scotland and Northern Ireland).

It follows a report by the Oil and Gas Authority that concludes that ‘it is not possible with current technology to accurately predict the probability of tremors associated with fracking’. So, until further evidence can be provided that fracking (and indeed the exploratory stages of it) can be carried out safely, that appears to be that for the fracking industry.

However, not all is as it seems, just two days after the government’s announcement, the Ministry of Housing, Communities and Local Government published its response to a consultation on permitted development rights for shale gas exploration. That response states:

“It should be noted that the Government has made clear in a separate Written Statement that on the basis of the current scientific evidence, and in the absence of compelling new evidence, it has taken a presumption against issuing any further Hydraulic Fracturing Consents. While future applications will be considered on their own merits by the Secretary of State in accordance with the law, the shale gas industry should take the Government’s position into account when considering new developments.”

The withdrawal of support by the government isn’t therefore, as it might seem at first glance, the death knell for the fracking industry in England, but rather a warning to them: absent a new way of doing things that doesn’t cause tremors, or a new way of accurately predicting the probability of those tremors occurring, you can still apply, but you’re unlikely to be consented. It should of course be noted that ‘compelling evidence’ isn’t defined anywhere.

The fracking industry in England would no doubt also point to the need to reconsider the very low limit for tremors, breach of which means they have to stop exploration, imposed in this country (0.5 of the Richter scale) compared to the higher limits in other countries (the limit in the US, for example, is 4). This low limit has demonstrably stymied the fracking industry and while it remains in place, even if the tremors are predictable, it will likely continue to do so.

The government’s announcement and report may be found here and here

 

Criminal behaviour order imposed for noise nuisance

In a blow to fans of playing music really loudly and generally annoying your neighbours to the point of distraction, a 55-year-old man in Manchester has been made the subject of a criminal behaviour order for repeated statutory noise nuisance offences.

Mr Taylor was reported to have blasted out music during the working week, at weekends and well into the early hours of the morning. When the CBO was imposed he had already of course been the subject of an abatement notice (which obviously he entirely ignored) leading to the seizure of his stereo equipment, TV and other accoutrements-de-annoyance on two occasions.

The CBO will last for a period of 5 years and of course comes with the possibility of time in prison if it is breached. A fine of £1,500 was also imposed.

Mr Taylor’s song of choice? ‘Born Slippy’ by Underworld as used in the seminal 1996 film Trainspotting, based on the novel by Irvine Welsh. To quote the book: “Some people are easier to love when you don’t have to be around them.” Presumably Mr Taylor’s neighbours will find it easier to live without his noisy behaviour and if he can’t abide by that, he won’t be around them for much longer.

‘Born Slippy’ may be enjoyed (quietly) here

 

New Forestry Commission’s guide to ‘Managing England’s woodlands in a climate emergency’

New guidance has been published by the Forestry Commission to provide practical advice to landowners on ways they can better manage their woodland to combat the effects of climate change. The risk to English woodlands is made more acute by the fact that they are dominated by relatively few varieties of tree: five conifer species account for 88% of the softwood forests and five broadleaf species make up over 72% of the hardwood woodland resource.

The guidance highlights that there is a risk that natural selection processes will be unable to keep pace with environmental change. It identifies the likely impacts of climate change on England’s woodlands and recommends a range of possible adaption strategies that include planting different stocks of tree and embedding biosecurity (precautions that aim to prevent the introduction and spread of harmful organisms) in practice to the same extent as health and safety.

The guidance has been published at the same time as the launch of the Government’s new £50 million tree-planting scheme which encourages farmers and landowners to plant trees in return for payments as those trees grow. The aim is to encourage investment in carbon sequestration and to reap other ecosystem benefits such as preventing flood risk, soil conservation and boosting biodiversity.

Zac Goldsmith, the Forestry and Climate Adaption Minister, has promoted the creation of new woodland as a way of combating the effects of climate change and has stated that the government is committed to planting 11 million trees by 2022. This guidance will hopefully assist in the creation of woodlands that can survive future conditions.

The announcement and guidance may be found here and here

Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC and Mark Davies consider developments regarding the Environment Bill, leadership in the climate crisis and a case against Exxon Mobil in the US for improper forecasting of the cost of climate regulation to its business.

 

The Environment Bill criticism

The Environment Bill was given a Second Reading in the final days of the last Parliament, and was broadly welcomed by all sides of the House. Bills about the Environmental do not often get given Parliamentary time and it is important to get this one right whilst we can. As it stands, this Bill does not yet deliver on what has been promised. Its limited terms have been roundly criticised in a letter to the Editor of the Telegraph signed by 23 environmental law experts led by Professor Eloise Scotford and Stephen Tromans QC, and co-signed by others such as Prof Philippe Sands QC, Prof Jane Holder, William Upton QC and Charles Morgan see here.

The letter argues that the Environment Bill – which aims to “maintain and improve our environmental protection” after Britain leaves the European Union – neither maintains current environmental protections nor enshrines the highest standards in law. The Bill makes no commitment to non-regression in relation to existing environmental standards (despite the Secretary of State’s words in the debate). It sets out a constrained procedural mechanism for introducing a policy statement on “environmental principles” that will do no more than influence other Government policymaking.

We shall see if the Bill can be improved on its promised return after the General Election.

 

Leadership in the climate crisis

If anyone still doubts that climate issues are not being heard at the heart of government, it is worth noting the speech delivered last week in the presence of the President of the RSA, Princess Anne. The annual President’s lecture was followed by a panel discussion with Sir Ian Cheshire, the Chairman of Barclays UK and the “Government Lead Non-Executive and Lead non-executive director”.

Emma Howard Boyd, Chair of the Environment Agency and UK Commissioner to the Global Commission on Adaptation, spoke about the “The new normal: leadership in the climate crisis”. Her theme was that everyone in society – government, businesses, and individuals – needs to put the climate emergency at the heart of everything they do. One of her points was that this was not just another item on the agenda, but that “the climate crisis is the business of business”. She referred not only to the conclusions of the IPPC, and such figures as David Attenborough and Mark Carney, but also Greta Thunberg and the point made by Extinction Rebellion’s protests – that we must tell the truth about this. Bringing these issues to the front of people’s minds gets us past debating whether or not the latest natural disaster is climate change and focusses minds on what action we must take to reduce the risks and prepare for new extremes.

The full speech is available here and the RSA’s video of it and the subsequent discussion is also available here.

 

Exxon faces suit in New York about the risk of climate regulation

In an action being brought by the State of New York, Exxon Mobil is accused of misleading investors about the potential costs of climate regulation to its business. Filed in 2018, the suit is a fraud case hinging on internal documents that New York says show that Exxon purposely used lower forecasts for costs associated with climate regulation in order to make investments appear more attractive to investors.

Exxon, in response, do not deny that they used two forecasting methods (adopting the lower) but rather argue that the calculations were ‘proprietary’ and that ‘reasonable investors’ who reviewed the disclosures pertaining to the investments would have seen that climate risk had been evaluated, which, the company says, is ‘all that could have mattered to them’.

It will be interesting to see if the point made by Emma Howard Boyd (see above) that “the climate crisis is the business of business”, is essentially proven in this case. New York has to show that the information kept from investors would have mattered to them (it has sought to do this in evidence by calling an activist investor, a representative of New York City’s pension fund and a market analyst). If a finding is made that the issue would have mattered to those investors it will presumably set down a marker for other companies to consider when taking decisions about disclosures in investment opportunities. Even if it isn’t shown to have mattered to investors in this case, it would presumably not stop similar actions being brought in the future where investors had a more clearly defined investment policy on climate risk.

Closing statements are expected in the next few days.

 

Chambers congratulates Christopher Badger on winning Environment/Planning Junior of the Year at the 2019 Chambers UK Bar Awards.

 

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