Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Gordon Wignall and Christopher Badger assess our blog predictions made back in January, the progress of the European Green Deal and this year’s selection of Christmas songs for environmental lawyers.

 

Our predictions – how did we do?

As we approach the end of the year, we assess the predictions we made back on 7 January. They were:

  • A shake-up of the approach to waste crime
  • More interest in the environmental impacts of the chemical sector
  • A redundant Environment Bill

Waste crime – a frustrating year

The Environment Agency published its Corporate Scorecard back in August 2019. This showed that during the fourth quarter, active high risk waste sites increased from 233 to 250, against a target for the EA of just 196. This then rose to 260 in the first quarter of 2020/2021. However, the EA have pointed to additional funding of £30 million and that they expect this additional support to help deliver against their challenging target in the future. The EA also highlighted the new Joint Unit for Waste Crime, through which over 140 cases had been referred to HMRC with over 50 resulting in working cases.

Chemical regulation – dominated by Brexit

A year of frustration and uncertainty, as the chemical industry looked desperately for some form of concrete guidance from Government that simply didn’t materialise. Urged to prepare for a no deal Brexit, as of October it was reported that some 48% of UK chemical companies had not transferred their REACH registrations to EU-based entities.

The environmental impacts of the chemicals sector remain critically important. By way of example, a recent survey by PwC identified that sustainability impacts outweigh macroeconomic concerns. The top four transformational factors, assessed by PWC, are:

  • Resource and materials substitution;
  • Decarbonisation of the economy
  • Use of renewable energy sources ; and
  • Elimination of waste.

PwC’s report can be found here

A redundant Environment Bill?

At the start of the year, we canvassed the possibility that the heralded Environment Bill may become redundant, either because we didn’t actually Brexit after all or because the UK committed to retaining EU environmental laws. In fact, the Bill never made it through Parliament. It received its Second Reading in the final days of the last Parliament, but despite being broadly welcomed by all sides of the House, the Bill has been scathingly criticised by 23 environmental law experts, who argued that it would neither maintain current environmental standards nor would it enshrine the highest standards into law.

Putting the election rhetoric to one side, the election victory and majority in favour of the Conservatives effectively guarantees Brexit, as well as the creation of the Office for Environmental Protection and the Environment Bill. It doesn’t guarantee environmental standards will not be compromised. If anything, the Bill, its passage through Parliament and whatever form the inevitable Act takes, has just assumed even greater importance.

Future predictions

We will once again set out our environmental law predictions for the coming year in the first post of 2020.

 

The European Green Deal: December 2019 developments

On Wednesday 11 December 2019 the EU Commission published its European Green Deal Communication (COM(2019) 640 Final). This is a lengthy summary of the Commission’s collection of ambitions intended to achieve “no net emissions of greenhouse gases in 2050”.

The Communication is a very important read for anyone who is interested either in future regulatory requirements or in business and industrial opportunities. It should be read together with the very short Conclusions of the Council published on 12 December (CO EUR 31 CONCL 9).

The Commission states that its targets will need a lot of hard policy and legislative decisions to be taken within five years. ‘Not so fast’, were the reported responses of Hungary (which promotes nuclear energy) and Poland (which substantially relies on coal). Accordingly, the Council’s Conclusions record its decision as to a “climate-neutral EU by 2050, in line with the objectives of the Paris Agreement” as follows:

“One Member State, at this stage, cannot commit to implement this objective as far as it is concerned, and the European Council will come back to this in June 2020”.

The Communication itself sets out many detailed (if ‘high-level’) ambitions, in particular for the extraction of minerals, energy-intensive industries (steel, chemicals, cement), transport and chemicals. There is to be a “zero pollution action plan for air, water and soil”.

On construction, the Communication includes extensive building renovation policies, and in the cases of electronics and durables there should be a ‘right to repair’ (policies to “curb the built-in obsolescence of devices”) and measures to encourage the sharing of goods and services.

As to trans-boundary waste shipment: “The EU should stop exporting its waste outside of the EU”.

Altogether there is too much even adequately to be able summarise the contents in this blog.

One aspect of interest which merited both a comment in the Conclusions and substantial press interest, is a brief passage in the Communication which recognises the need to control “the risk of carbon leakage in a WTO compatible way” by means of “a carbon border adjustment mechanism for selected sectors” (for which read “tariffs”).

The Communication succinctly explains the underlying problem as perceived by the Commission thus:

“As long as many international partners do not share the same ambition as the EU, there is a risk of carbon leakage, either because production is transferred from the EU to other countries with lower ambition for emission reduction, or because EU products are replaced by more carbon-intensive imports. If this risk materialises, there will be no reduction in global emissions, and this will frustrate the efforts of the EU and its industries to meet the global climate objectives of the Paris Agreement”.

Overall, the Commission has recognised that its Communication is not just a set of environmental policies. It extends to specific EU competences in diverse areas including, fiscal and finance (subsidies for industry and individuals who can afford higher prices), trade and competition.

The Communication can be found here
The Conclusions here

 

This year’s Christmas songs for environmental lawyers

We return to our annual theme of Christmas songs for the environmental lawyer. We’ve decided this year to focus on songs relating to noise nuisance, in a thinly-disguised ploy to mention again the Six Pump Court involvement in Coventry v Lawrence (and many other cases). Job done.

There is no doubt that Silent Night (The Shepherds feat. Joseph, Mary & Child) got things off to a cracking start in ancient times, setting a definitive 0 dB reference point and with early use of the criterion of a peaceful night’s sleep as a threshold test for nuisance (“Heavenly hosts singing Alleluia!” being an apparently acceptable level of intrusion). At the same location and on the same occasion, Away In A Manger (verse 2) relates noise levels from cattle at a volume sufficient to wake a young Child (fortunately without tears) – an illustration of the difficult issues which can result from mixed-use barn conversions.

By Victorian times The Twelve Days of Christmas invites us to imagine the simultaneous festive clamour of ten pipers piping and nine drummers drumming. Once we enter the 20th Century, the richer and more legally pertinent pickings are to be found in the wider song catalogue. Lazy Sunday (The Small Faces) summarises succinctly the classic residential noise dispute: “Wouldn’t it be nice to get on with me neighbours, but they make it very clear they’ve got no room for ravers. They stop me from groovin’, they bang on me wall …”. Noise by the Kinks (itself not the quietest of songs, presumably to make the point) refers to noise at work, at home and in the street (from traffic and street works) and the wearing cumulative effect on the singer, arriving at the conclusion that “There oughta be a law”, in evident ignorance of the already extant provisions of section 58(1) of the Control of Pollution Act 1974, the precursor to section 79(1)(g) of the Environmental Protection Act 1990.

Not all songs lament noise. Slade’s Cum on Feel the Noize celebrates it; so does Beautiful Noise by Neil Diamond, which begins with an orchestral rendition of the sound of car horns and rejoices in the background rhythm of noisy urban activity, describing it as “the music of life”. AC/DC defend their art in Rock and Roll Ain’t Noise Pollution and the lyrics of The Tubes’ Let’s Make Some Noise consist almost entirely of the repetition of the title (37 times) – although it’s at least possible that these last two songs are written in the language of innuendo.

The Sound of Silence (Simon & Garfunkel) is essentially a modern take on the Biblical theme, and leads nicely into what for lawyers is perhaps the most interesting noise-in-song-related tale of all. Songwriter Mike Batt (Bright Eyes, Remember You’re a Womble, Only A Winter’s Tale etc. etc.) recorded a track called A One Minute Silence, which consists of exactly what its title suggests. He was sued by the estate of the late John Cage, alleging infringement of Cage’s work 4’33”, a rather longer version of much the same thing, having perhaps rather mischievously invited this by crediting composition to “Batt/Cage”. The dispute was settled by a six-figure contribution to the John Cage Trust, Batt stating at the time: “Mine is a much better silent piece. I have been able to say in one minute what Cage could only say in four minutes and 33 seconds.”

We Wish You a Wombling Merry Christmas!

 

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Environmental Law News Update

In this latest Environmental Law News Update, Charles MorganChristopher Badger and Gordon Wignall consider a call for evidence on the sixth climate budget from the Committee on Climate Change, a dramatic increase in the carbon price used for calculating civil penalties, a case considering the effect of arrangements entered into between a local authority and Thames Water relating to water supply and the rise in private law climate change actions in nuisance.

 

Committee on Climate Change launches a call for evidence on the sixth climate budget

As everyone is aware, the UK has adopted a target of net zero greenhouse gas emissions by 2050. The Climate Change Act 2008 requires the Committee on Climate Change to provide advice to the Government about the appropriate level for each carbon budget on the path to the long term target.

The Committee must provide its advice on the sixth carbon budget before the end of 2020. In order to do this, it has launched its call for evidence, with a deadline of 5 February 2020.

The call for evidence questions are divided into five sections:

  • Climate science and international circumstances;
  • The path to the 2050 target
  • Delivering carbon budgets
  • Wales, Scotland and Northern Ireland
  • Sector-specific questions

This of course follows extensive criticism by the Natural Capital Committee on DEFRA’s environmental progress. Essentially, there is very little evidence of any actual improvements in the state of our natural capital. According to the NCC, there is in fact worrying evidence of declines in environmental quality.

And it follows the fact that the Committee on Climate Change has already reported that current policies and plans are insufficient to meet the fourth and fifth carbon budgets, covering 2023-2027 and 2028-2032.

Transitioning to net zero will be disruptive. One issue is that the later concrete plans are left to take the UK to net zero, the more disruptive those plans will inevitably have to be. There is a strong argument that the relevant regulators and the government have to take a much tougher stance now, rather than require a cliff edge reduction in emissions in say five years from now.

This also comes at a time when the European Environment Agency has published its latest five-yearly report and forecast, warning that a drastic change of direction is required to meet existing policy goals.

On a slightly different note, the Committee on Climate Change also doesn’t appear to be all that enamoured with the idea of the Office for Environmental Protection. There is a concern that the OEP will use the reports written by the Committee on Climate Change as a basis for enforcement action against the Government. This in turn risks causing the Committee on Climate Change to be less frank in its language with the Government and may have the unintended consequence of reducing the effectiveness of the Committee.

But can’t that be solved? The answer may lie in ensuring that any memorandum of understanding drawn up between the OEP and the CCC requires the OEP to consider the evidence supporting any CCC report rather than the report itself.

The call for evidence can be found here

 

BEIS dramatically increases the carbon price for UK civil penalties in 2020

On 29 November 2019, the Secretary of State for Business, Energy and Industrial Strategy determined that the carbon price for the purpose of calculating civil penalties under the EU Emissions Trading System (EU ETS) in the UK for the year beginning 1 January 2020 would be £21.93. The price in 2019 was £12.61. The new figure reflects a 42% increase.

The same carbon price in 2018 was just £4.86.

The determination is linked to the futures price traded for carbon, principally over the course of 2019. This is only increasing, as attitudes towards carbon turn more and more negative.

Regulation 52 of the Greenhouse Gas Emissions Trading Scheme Regulations 2012 sets out the formula for calculating the penalty for carrying out a regulated activity without a permit. It requires an estimated amount of the costs avoided by the offender as a result of carrying out a regulated activity without a permit to be added to the multiple of the estimated amount of reportable emissions multiplied by the carbon price. That penalty can also be increased by a percentage to ensure that any economic benefit obtained as a result of failing to have the necessary permit is removed. With an increasing carbon price, it won’t take much for potential penalties to become highly significant.

It should be noted that Regulation 51 provides the Regulator with a discretion in respect of imposing civil penalties.

The determination can be found here

 

Water surprise

In Royal Borough of Kingston-upon-Thames v Moss [2019] EWHC 3261 (Ch) Morgan J. had to consider the effect of arrangements entered into between the local authority and Thames Water relating to the supply of water to council houses and flats. Under those arrangements Thames Water did not render bills to individual tenants (as it would have been entitled to do under its charges scheme) and instead charged the Council the global amount due for the properties under the scheme, with agreed reductions in those charges to provide both a “voids allowance” (3.5%) and a “commission” (9.3%), the latter being intended to reflect the fact that under the arrangements the Council relieved Thames Water of the entire administration of the collection process and assumed that burden itself as well as the risk of non-recovery. The Council charged its tenants the full, undiscounted charges.

Having considered earlier case law, Morgan J. concluded that under the arrangements the Council was not acting as an agent or assignee of Thames Water but was itself reselling water to its tenants. The consequence of that conclusion was that the activity engaged the Water Resale Orders 2001 and 2006, which very strictly circumscribe the ability of a reseller to “mark up” supplies of water to dwelling houses. In the result, the Council was held under the original arrangements to be obliged to pass on to its tenants the benefit of both the voids allowance and the commission. A later variation was held to allow the Council to retain the benefit of the voids allowance but not the commission. This outcome was wholly unforeseen when the arrangements were made and effectively a windfall for the tenants at the Council’s expense.

Of note also is that Morgan J. (obiter) held to be ultra vires provisions in the Thames Water charges scheme purporting to render landlords of short lets liable for water charges instead of the occupiers. Occupation has been the traditional touchstone of liability to pay water rates and charges and Morgan J. held that nothing in sections 142-144 of the Water Industry Act 1991entitled an undertaker to depart from that principle in the manner contained in the Thames Water scheme (and doubtless others). (The position will to some extent be modified by section 144C of the Water Industry Act 1991, currently only in force in Wales).

This decision is of potentially wide application to both local authorities and undertakers.

 

Nuisance and climate change

Private law climate change actions in nuisance have been active for more than 15 years in the US. They are beginning to be seen elsewhere in Europe, and it is only a matter of time before they are made in the UK. Claimants seek damages from fossil fuel undertakings where they face immediate threats in their localities (such as coastal erosion). Gordon Wignall examines some of the formidable challenges encountered by this class of the litigation in a short briefing document here. The first in the series concerns the ‘legislative displacement principle’ which holds that these cases cannot be heard at all as private actions, but must be determined under national climate change legislation.

 

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Environmental Law Podcast – December 2019

The final environmental law news podcast of 2019 presented by Christopher Badger and Mark Davies in association with LexisPSL, is now available.

In this podcast, Chris and Mark consider:-

  • a look at the relationship between requests for disclosure under the Environmental Information Regulations 2004 and legal professional privilege;
  • the Committee on Climate Change’s (CCC) most recent call for evidence; and
  • the latest EU developments on green finance

 

To listen to the podcast, click here:-

 

The relationship between requests for disclosure under the Environmental Information Regulations 2004 and legal professional privilege- listen from 0.40 seconds

CCC call for evidence- listen from 5.18 mins

EU developments on green finance – listen from 8.29 mins

 

Environmental Law News Update

In this latest Environmental Law News Update, Mark Davies, Angelica Rokad and William McBarnet consider the first ever televised climate change debate, coverage of environmental issues in the Conservative election manifesto and the recent prosecution of Weetabix for polluting the River Ise.

 

First ever televised climate change debate

Last week, in a first of its kind, UK party leaders attended a ‘climate debate’ hosted by Channel 4. Absent were Boris Johnson of the Conservatives and Nigel Farage of the Brexit Party who were represented by melting ice sculptures.

The topics debated included net zero carbon emissions targets, food production, aviation, energy efficiency in the home, energy production, biodiversity and trees. Whilst there was general agreement that something needed to be done, the party leaders were sometimes at odds over how to do it.

The main items to emerge from the debate are as follows:

With regard to national energy production, Jeremy Corbyn signalled his support for further investment in nuclear energy, which attracted criticism from the other leaders, although he claimed its role would only be to produce a “baseline” of energy production. All party leaders seemed united in viewing offshore wind energy as a major opportunity, although Nicola Sturgeon of the Scottish National Party highlighted that there needed to be a “just transition” to green energy, recalling the social effects of deindustrialisation in the West of Scotland when she was growing up.

The party leaders were also in agreement that the reduction in UK biodiversity was an important issue which deserved greater attention. Linked to this is a proposal many parties have adopted – the planting of more trees. As the discussion with Adam Price of Plaid Cymru indicated though, there is a balance to be struck with agriculture, although farmers could be forgiven if they were left a little confused as to how exactly that would be achieved. Sian Berry of the Green Party said that she had spent years arguing against development of infrastructure through significant areas of countryside, signalling that a new approach was necessary. In terms of legislative proposals, Jo Swinson stated that strict legal targets needed to be set with a Nature Act and a new Office of Environmental Protection to enforce them.

Environmental issues have gathered momentum in recent times and are now a significant feature of this General Election. Each party leader was keen to demonstrate that the scale of the problem was not lost on them and stress that their future actions would match their rhetoric. In a year in which Extinction Rebellion and Greta Thunberg have grabbed the headlines, this election may prove a turning point rather than another instance of various pledges being left on dusty shelves.

 

The environment in the Conservative’s Manifesto

Having covered Labour’s manifesto in last week’s blog, this week we examine the Conservative’s. It starts with two rather bemusing similes, first that the country has felt like ‘a lion trapped in a cage’ and secondly that it is like a ‘super-green supercar blocked by traffic’. However, the unbelievably naff introduction aside, there are various statements of note in relation to the environment throughout:

  • Investment of £1 billion in completing a fast-charging network to ensure that everyone is within 30 miles of a rapid electric vehicle charging station;
  • A consultation on the earliest date that the sale of new conventional petrol and diesel cars can be phased out;
  • Building on Britain’s pioneering work in electric and low-carbon flight;
  • The creation of environmentally friendly homes with all new streets to be lined with trees;
  • The protection and enhancement of the green belt with increased biodiversity, easier access to the countryside and continued prioritisation of brownfield development;
  • Use of the £1 billion Ayrton Fund to develop affordable and accessible clean energy;
  • The continuation of the Environment Bill to guarantee that our natural environment is protected and restored after the UK leave the EU;
  • The establishment of the Office for Environmental Protection and the introduction of legal targets, including on air quality;
  • A £640 million Nature for Climate Fund;
  • The creation of a Great Northumberland Forest with an additional 75,000 acres of trees to be planted in each year of Parliament, as well as the restoration of peatlands;
  • The creation of new National Parks and Areas of Outstanding Natural Beauty;
  • A levy to increase the proportion of recyclable plastics in packaging;
  • Banning the export of plastic waste to non-OECD countries;
  • Increases in the penalties for fly-tipping and the introduction of a deposit return scheme;
  • Tougher sentences for animal cruelty with a crackdown on the illegal smuggling of dogs and puppies;
  • The setting up of a new international partnership to tackle deforestation;
  • A £500 million Blue Planet Fund to protect our oceans from plastic pollution, warning sea temperatures and overfishing, as well as an extension to the Blue Belt programme;
  • A focus on the environment in the first Budget with £4 billion for new flood defences;
  • Two million new high-quality jobs in clean growth;
  • £800 million to build the first fully developed carbon capture and storage cluster by the mid-2020s;
  • £500 million to help energy-intensive industries move to low-carbon technologies;
  • Support for gas for hydrogen production and nuclear energy; and
  • An investment of £9.2 billion in the energy efficiency of homes, schools and hospitals.

The verdict? No great surprises from the party currently in power with lots of well-meaning promises; should the Conservatives secure a majority on 12 December it will be very interesting to see if their first budget really does have a focus on the environment. As with Labour’s manifesto, many of the big spending policies don’t appear to be properly costed. Grade: B-

 

Cereal Offender: Weetabix Fined for Polluting River Ise

On 10 November 2016, 23,000 litres of diesel fuel leaked from disused tanks contained in a bund on a Weetabix site into the River Isle, Northamptonshire.

The leak occurred due to a problem with the secondary valves that controlled the flow of fuel from decommissioned storage tanks above ground. It was reported that the company, which has an annual turnover of £300 million, failed to act upon advice from the Environment Agency that had suggested, as early as 2007, removing the valves and associated pipework from the tanks in order to reduce the risk of water pollution.

The leak, which took place at the company’s plant in Burton Latimer, risked putting fish and plant life at “significant” risk. Fortunately, and only by chance, the wet weather, coupled with the flow of the river at the time of the incident, reduced the potential impact of the pollution.

Sentencing, Judge Rupert Mayo sitting at Northampton Crown Court, issued a fine of £130,694.72 to the company, following a guilty plea. In his ruling, the Judge concluded that Weetabix had been negligent in failing to carry out appropriate checks on pipes and valves in storage facilities on the plant and keep proper records of them.

The company’s failure to act was described in Court as tantamount to “corporate amnesia” – an expensive error given that the resulting clean-up operation has also cost Weetabix £400,000 to remedy.

 

Wiglaw: A Short Guide to Nuisance

By the time this blog has been circulated, our readers should also be able to access a “Short Guide to Nuisance” at www.wiglaw.co.uk. It will be maintained by Gordon Wignall, and is intended primarily to assist non-professional clients, as well, perhaps, as some professional colleagues, to navigate a way round this sometimes complex area. So far as private nuisance is concerned, it starts with the premise that the law can more easily understood if one of four sets of principles is applied to any factual circumstances. There are also two short areas summarising key issues which concern public and statutory nuisance. At the time of writing, the site is not open, and Gordon would very much welcome any feedback, directed either to the contact details provided on the website or to his chambers’ email address.

 

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