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Posted on: 19 November 2019

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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