Environmental Law Podcast – January 2020

The first environmental law news podcast of 2020 presented by Christopher Badger and Mark Davies in association with LexisPSL, is now available.

In this podcast, Chris and Mark consider:-

  • Predictions for hot topics in environmental law in 2020;
  • Urgenda’s success in the Dutch Supreme Court; and
  • The Upper Tribunal’s decision in the ongoing ‘fluff’ litigation.

 

To listen to the podcast, click here:-

 

Predictions for 2020 – listen from 0.34 mins

Urgenda’s success in the Dutch Supreme Court – listen from 4.34 mins

The Upper Tribunal’s decision in the ongoing ‘fluff’ litigation – listen from 7.03 mins

Environmental Law News Update

In this latest Environmental Law News Update Christopher Badger considers a new report from the Committee on Climate Change, progress of the Agriculture Bill and a briefing paper from DEFRA putting plastic waste back on the agenda.

 

Committee on Climate Change publish new report

On 23 January 2020, the Committee on Climate Change (“CCC”) published ‘Land use: Policies for a Net Zero’. The report represents the CCC’s first ever in-depth advice on UK agricultural and land use policies. Unsurprisingly, the key finding is that the UK requires a transformation in land use across the UK if we are to hit net-zero by 2050.

Recommendations include:

  • Farmers and land managers must be well supported in the move to net zero. It is anticipated that there will be added costs for farmers and land managers of £1.4 billion annually to 2050;
  • Low carbon farming practices should be promoted. Measures under existing cross-compliance rules that have benefited climate change mitigation should be mandatory, irrespective of whether farmers are in receipt of public money;
  • UK forestry cover should be increased from the current 13% to at least 17% by 2050 (that means planting 90-120 million trees);
  • Introduce a UK emissions trading scheme for forestry, putting a price on carbon stored by woodland and providing an incentive to encourage landowners to establish and manage forests in a way that increases carbon storage;
  • Restore 50% of upland peat and 25% of lowland peat, potentially through a positive obligation imposed on water companies and banning the sale of peat for horticultural use;
  • Develop and strengthen the energy crop market, introducing biomass to hydrogen production and biofuels into the aviation industry.

There are quite a few interesting facts to be found within the report. For example, transitioning from grassland to forestland would increase the soil carbon stock by 25 tonnes of carbon per hectare (on average across England) once long-term equilibrium is established, although this may take many decades to be reached. This is additional to the large amounts of carbon that would be stored in the biomass of the trees themselves. In contrast, land-use change from grassland to cropland would actually reduce the land’s soil and biomass carbon stock by around 23 tonnes of carbon per hectare on average across England, although overall emissions could still be reduced if this land was used for the planting of bio-energy crops for use in the energy system.

It is anticipated that realising the necessary reductions to emissions would deliver a net lifetime benefit of £80 billion to the UK.

The report can be found here

 

The Agriculture Bill 2019-2020

The Agriculture Bill 2019-2020 received its first reading in the House of Commons on 16 January 2020. It represents a massive shift away from the Common Agricultural Policy’s (“CAP”) approach of direct payments to farmers based on the amount of land that they manage. This particular feature of the CAP had been the subject of stringent criticism for pushing up land prices, creating an entry barrier for young farmers and benefiting large landowners disproportionately.

UK policy now moves to a new system of environmental land management contracts. Whilst it is yet to be worked out in practice, the Bill provides for financial support to be provided in connection with one or more of the following purposes

(a) managing land or water in a way that protects or improves the environment;
(b) supporting public access to and enjoyment of the countryside, farmland or
woodland and better understanding of the environment;
(c) managing land or water in a way that maintains, restores or enhances cultural
or natural heritage;
(d) managing land, water or livestock in a way that mitigates or adapts to climate change;
(e) managing land or water in a way that prevents, reduces or protects from environmental hazards;
(f) protecting or improving the health or welfare of livestock;
(g) conserving native livestock, native equines or genetic resources relating to any
such animal;
(h) protecting or improving the health of plants;
(i) conserving plants grown or used in carrying on an agricultural, horticultural or forestry activity, their wild relatives or genetic resources relating to any such plant;
(j) protecting or improving the quality of soil.

What isn’t clear is how the Agriculture Bill or the move to decarbonise the rural economy fits in with future UK trade policy and the need to strike trade deals after we leave the EU. Will there be any incentive to protect farmers from low cost foreign imports when negotiating with other economies? What will be the effect on food prices for UK citizens? And to what extent do we need public support and a change in the practices and diets of each of us to support the transition?

The Bill can be found here

 

Waste plastic back on the agenda

It was widely reported that Malaysia is returning a large number of containers housing illegally imported plastic waste to countries including the UK. The South East Asian Country has seen a large increase in foreign plastic waste since China announced a ban back in 2017.

The Government published a wide-ranging briefing paper on plastic waste earlier this month (ahead of the return of the Environment Bill which is expected at the end of the month). Local authorities are struggling to find alternative end destinations for waste, which has resulted in increased costs. In a recent survey by the Local Government Association (“LGA”), some of the Councils that have been most impacted by the China waste import bans warned that their recycling costs have increased by £500,000 on average over the course of a year as a result of the restrictions.

It is reported that there is not enough value in local authorities and waste management providers collecting lower grade waste plastic. The LGA has warned that it is essential for manufacturers to prevent such material from entering into the economy in the first place.

DEFRA’s national statistics identify that 43.8 percent of all local authority waste actually ends up being incinerated – that’s a total of 11.2 million tonnes. This exceeds the amount of waste that is sent by local authorities for recycling (10.9 million tonnes). The inevitable consequence of further restrictions on the export of plastic waste is that even more waste will be disposed of by way of incineration, unless an affordable alternative strategy is identified.

The briefing paper can be found here

DEFRA’s national statistics can be found here

 

To keep up-to-date follow us on Twitter @6pumpcourt or 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

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan and Nicholas Ostrowski consider the launch of a new Waste Crime Task Force, a case upholding the Environment Agency’s charging scheme for vessels and a successful appeal regarding the landfill tax treatment of ‘fluff’.

 

Waste Crime Task Force

In 2016 Sir James Bevan, then, as now, CEO of the Environment Agency, described waste crime as “the new narcotics”. Quite apart from the scourge of unlicensed landfills and waste reception sites, fly-tipping on an industrial scale and the illegal export of waste, some regulatory régimes in the sector have unintentionally created almost literally a licence to print money (in the form of false WEEE evidence notes or packaging waste recovery notes, for example). This has led to an increasing incidence, in the context of waste regulation, of more broadly-distributed criminality such as fraud – the familiar province of the police than the Environment Agency.

Last week, following the Defra report of November 2018 on “Independent review into serious and organised crime in the waste sector”, the Government announced the launch of a task force dedicated to tackling “serious and organised waste crime”. The Joint Unit for Waste Crime will bring together law enforcement agencies, environmental regulators, HMRC and the National Crime Agency to co-ordinate the whole process of enforcement from site inspection through to prosecution, conviction, sentencing and proceeds of crime recovery.

The past few years have seen the grant of increasing powers to the Environment Agency (eg sections 109A -109N of the Environment Act 1995 concerning “restriction notices”) coupled with a reduction of resources which has inhibited the effective exercise of those powers. For example, the Environment Agency announced at the start of the year that it was reducing the number of PRN site inspections. It remains to be seen if the new Joint Unit will reverse this trend or otherwise overcome the inherent resulting problems.

 

Environment Agency’s charging scheme for vessels upheld by High Court

Shortly before Christmas the High Court (Nicol J) dismissed a challenge by the owner of a vessel against the Agency’s charging scheme for vessels made under the Environment Agency (Inland Waterways) Order 2010.

In a judgment (Sunman v Environment Agency [2019] EWHC 3654, [2020] WLR 8) which will be of some financial significance to the Agency (and which was keenly watched by some members of the boating community) the High Court upheld the Agency’s system which requires vessels to pay particular sums based on the size of the vessel for every vessel moored on specified rivers.

Nicol J considered the complex statutory background to the charging scheme which included a so-called Henry VIII clause permitting the Secretary of State through the Environment Agency (Inland Waterways) Order 2010 (a statutory instrument) to amend primary legislation – in this case the Anglian Water Authority Act 1977.

The judge agreed with the Appellant that this was an issue he could have raised despite having already pleaded guilty to an offence of not registering his vessel and the judge also agreed that a vessel-owner could claim, in a criminal prosecution, that the amount of any charge levied on him under the 2010 Order was excessive. In this case though, upon finding that the Agency had the relevant statutory authority despite the Henry VIII clause, the Agency had acted lawfully and the criminal conviction could not be impugned. The judge went on to dismiss the assertion that the amount of the registration fee charged by the Agency was unlawful as there was no evidence before him or the Crown Court that the amount of registration fee imposed by the Agency was Wednesbury unreasonable.

Nicholas Ostrowski appeared for the Agency.

 

‘Fluff’ is not subject to landfill tax

In May 2018 we reported that the HMRC had successfully persuaded the First Tier Tribunal (Tax Chamber) that ‘fluff’, which is normally black bag waste from domestic premises that is used as part of a base layer to protect the liner of the landfill cell, was waste and hence was subject to landfill tax.

That decision was recently overturned on appeal though in the Upper Tribunal by Fancourt J and UTJ Herrington in [2020] UKUT 0001 (TCC).

At first instance the First Tier Tribunal had held that while, in one sense, the black bag waste was “used” to protect the lining system, this was not the end of the matter. All of the material was destined for landfill, in the main body of landfilled waste if it was not to be ‘fluff’. ‘Use’ was not considered to be an antonym for ‘discard’ – the fact that the material continued to serve a useful function after it had been disposed of did not affect this conclusion.

The Upper Tribunal held that that First Tier Tribunal’s decision misinterpreted the ruling in Waste Recycling Group Ltd v HMRC [2008] EWCA Civ 849 and found that ‘use’ really is the opposite of ‘discard’ and if a site operator uses black bag waste for a particular purpose then they are not discarding it: “if a site operator disposes of material at a landfill site, but in doing so intends to and does make use of its properties for his own purposes, including compliance with regulations, licenses, permits or any other requirements for the site, that use means that the operator does not make the disposal with the intention of discarding the material”.

New provisions dealing with this material were introduced in the Finance Act 2018 with effect from April 2018 so there are no ongoing issues arising from fluff. Nevertheless, the financial consequences of this decision in relation to material previously categorised as landfill waste and subject to tax are said to run into hundreds of millions of pounds and HMRC are reportedly considering appealing the judgment to the Court of Appeal.

 

 

To keep up-to-date follow us on Twitter @6pumpcourt or 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

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Gordon Wignall and Mark Davies consider the Wellbeing of Future Generations Bill, the Dutch Supreme Court’s ruling in the Urgenda litigation and the role of local authorities in climate change and nuisance law.

 

Wellbeing of Future Generations Bill

The private members’ Wellbeing of Future Generations Bill received its first reading in the House of Lords last week. It might be termed “anti-short-termism” legislation.

Part 2 of the Bill introduces the “future generations principle”, requiring public bodies to act “in a manner which seeks to ensure that the needs of the present are met without compromising the ability of future generations to meet their own needs.” That is accompanied by a new attempt at a definition of “sustainable development” as “the process of improving the economic, social, environmental and cultural wellbeing of the United Kingdom by taking action, in accordance with the future generations principle, aimed at achieving the wellbeing goals …” Those goals must be set by the Secretary of State after public consultation and the convening of a Citizen’s Assembly. Public bodies must in turn “carry out” sustainable development by setting, publishing and meeting “wellbeing objectives” aimed at contributing to achievement of the wellbeing goals. Public bodies are specifically required to take account, amongst other things, of “the importance of balancing short-term needs with the need to safeguard the ability to meet long-term needs, especially where things done to meet short term needs may have detrimental long-term effect”.

The Secretary of State will be required to publish an annual “wellbeing goals report” and also, within a year of the election of a new Parliament or appointment of a new Prime Minister, a “future trends and risks report”, which must address, amongst other things, environmental risks. Ministers will be required collectively to produce an annual “wellbeing objectives report”. The Secretary of State is also required to issue guidance to public bodies about the exercise of their functions under Part 2, which public bodies must take into account.

Part 3 provides for the creation of a Future Generations Commissioner and Part 4 provides for the creation of a Joint Committee on Future Generations, which must produce annual reports. Needless to say, the future wellbeing of the Commissioner and Committee members is itself assured by provisions for their remuneration, allowances, gratuities and pensions.

Part 5 is entitled “Wellbeing and Companies” and requires the Secretary of State to produce regulations requiring the inclusion in the directors’ reports of certain companies of “an explanation as to whether, and how, each of the strategically significant activities of the company advances, detracts from, or is neutral with respect to the wellbeing goals …”. This is an interesting example of the current trend towards compelling companies to think about the wider, non-economic aspects of their behaviour.

Part 6 addresses “Wellbeing and Procurement” and Part 7 miscellaneous other matters.

It is fortunate that words are not regarded as a form of pollution; the enactment of this Bill will certainly generate lots of them. Its underlying and commendable philosophy appears to be that by making people think about things and articulate that thinking and their justification for their acts, appropriate action will emerge and prevail. In legal terms, the various duties created in the Bill are at a very high level of abstraction and likely to be regarded as of the “aims” variety rather than provisions directly giving rise to specific, readily enforceable requirements. They will create a further context to decision-making by public bodies, to be weighed in the balance in any challenge.

The full text of the Bill may be found here.

 

Urgenda succeed in the Dutch Supreme Court

Shortly before Christmas the Dutch Supreme Court upheld the District Court and Court of Appeal’s decisions in the Urgenda litigation, brought on behalf of 886 Dutch citizens, finding that the Dutch government has a legal duty to prevent dangerous climate change.

The decision marks the culmination of half a decade of litigation in which the District Court of the Hague initially ruled on 24 June 2015 that the government must cut its greenhouse gas emissions by at least 25% by the end of 2020 against a 1990 baseline. The Dutch Government’s appeal was rejected on 9 October 2018 in the Court of Appeal and on 20 December 2019 the Supreme Court dismissed the final appeal.

Whilst the Supreme Court ruling does represent a momentous victory for Urgenda, the ambit of the disagreement in the case was relatively narrow. Both Urgenda and the Dutch state accepted that greenhouse gas emissions should be reduced quickly, but they disagreed as to the rate at which that reduction should take place. The Dutch State’s target was for a reduction of 20% by 2020 against a 1990 baseline, whilst Urgenda argued successfully that it should be 25%.

The Supreme Court’s decision is based on the UN Climate Convention and on the Dutch State’s legal duties under the European Convention for the Protection of Human Rights and Fundamental Freedoms insofar as dangerous climate change poses a risk of serious impacts on the rights to life and well-being of residents of the Netherlands.

Whether a similar case would succeed in England and Wales is an interesting question and surely one which will inevitably be posed. As a country around one third of the Netherlands lies below sea level, with much more being at sea level or just above, and therefore the country as a whole is placed at serious risk from sea level rise caused by climate change. With England and Wales less susceptible to such risks it must be that very careful consideration would have to be given to show how climate change poses risks of serious impacts on the right to life for such a case to succeed.

 

Climate Change and Nuisance Law: the role of local authorities

Climate change litigation in the common law nuisance context continues to develop incrementally in the US.  So far as we are aware, no global climate change case has yet succeeded in the US, but we like to keep an eye on how these cases are progressing, in the event that they say something about such cases in England and Wales. Uncertainty about how climate change cases should be presented is shown by the ‘tactical’ manoeuvres still being played out.  In particular, the parties, plaintiff and defendant, continue to skirmish as to whether these are federal or state cases.
This skirmishing is relevant, in part at least, because defendants have discovered the existence of early ‘knock-out’ blows depending on whether domestic legislation provides a ready answer to the control of climate change (displacing the common law), or whether the principle against ‘extraterritorial’ should apply, prohibiting determinations by domestic juries.  There is a real question as to how any domestic tribunal should determine the balancing exercise required to be made between rival parties in any nuisance case (given the global context), and this argument is attractive to US courts.  All of these issues would be relevant within the jurisdiction of England and Wales.
A striking feature of the US nuisance claims is that the state is commonly the plaintiff.  In England and Wales, a local authority has the power, like the Attorney-General, to act on behalf of the general public to maintain a case of public nuisance.  However, in England and Wales, local authorities would have to adopt this role much more aggressively than they currently do if they want to take up the climate change cudgels.
US states have had long enjoyed a role parentis patriae, and this is the basis of their role as claimants.  They have an eye to the enormous costs they are likely to incur having to deal with public health issues, infrastructure damage and many other likely demands on their purses.
For a fuller account of recent relevant cases in the US covering these issues, see the article on the Chambers website 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

Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Mark Davies consider predictions for the year ahead, new legal limits on sulphur in shipping fuel and Mark Carney’s call for action on climate change disclosures.

 

Environmental Law Predictions for 2020

We begin this year as we did the last: with our predictions for environmental law in the forthcoming year.

 

The Environment Act 2020

The forthcoming Act offers the Government the chance to safeguard our environment for future generations. The key question is whether or not the Government will seize that chance. Key concerns include the failure to set out the policy framework within which the environmental principles will be applied in practice, the fragility of the Office for Environmental Protection and whether or not the body will be sufficiently resourced in order to be able to meet its objective and the date of 2037 as the date to achieve environmental targets when many agree that there is a current climate emergency.

The Queen’s Speech identified that the Act will set legally binding targets, including a commitment to improving air quality and banning the export of plastic to countries outside of the OECD. There was no suggestion that the Government intends to make any major changes to the current shape of the legislation. We therefore predict:

  • Little substantive change to the current shape of the Bill;
  • The Government’s commitment to a ‘level playing field’ will not amount to equivalence with EU standards and in fact opens a path towards divergence which may well be significant in an era of expected major infrastructure projects;
  • No non-regression clause;
  • Few effective means of monitoring domestic progress towards the hitting of future environmental targets.

 

Heathrow’s third runway

We predict that the current appeal by Plan B and Friends of the Earth against the expansion of Heathrow will fail by a majority in the Court of Appeal, resulting in the case inevitably being heard in the Supreme Court, albeit not before the retirement of specialist environmental Justice, Lord Carnwath.

At the Supreme Court we predict that a refreshed panel of Justices will also reject the appeal. Environmental protection objectives, enshrined by way of example in the Paris agreement, will not prove sufficient to prevent expansion. Instead, and at the risk of oversimplifying the extremely complex arguments that will be advanced, we predict that the Supreme Court will rule that the carbon budget commitments imposed on the UK Government and its commitment to the Paris Agreement allow for the reconsideration of the Airports National Policy Statement at a future point in time, based on future scientific evidence, and do not immediately require the derailment of the expansion project.

 

Expansion of producer responsibility schemes

The expansion of producer responsibility schemes is one way of the Government addressing some environmental concerns, namely the environmental impact of placing products on the market, without having to pay to achieve potential environmental benefits.

By way of example, the Government’s consultation on the UK packaging producer responsibility system closed back in February 2019. Responses have not yet been published, but it is intended that the scheme will be reformed in 2021 and become operational in 2023. The proposal is that businesses will bear the full net cost of managing the packaging they handle or place on the market at end of life.

We therefore predict that there will be a significant policy development that businesses are going to be required to respond to, incentivising the use of recyclable packaging but at a cost to business. Expect policy to extend to the world of chemical and pharmaceutical regulation, where producer responsibility could be used to attempt to regulate end of life drugs and chemicals which may otherwise end up in the natural environment.

 

New requirements on sulphur limits in shipping

From 1 January 2020, the limit for sulphur in fuel oil used on board ships operating outside designated emission control areas has been reduced to 0.50% mass by mass. This is intended to significantly reduce the amount of sulphur oxides emanating from ships and have major health and environmental benefits, particularly for those living close to ports and coasts.

The main type of “bunker” oil for ships is heavy fuel oil, derived as a residue from crude oil distillation. Crude oil contains sulphur which, following combustion in the engine, ends up in ship emissions. Sulphur oxides (SOx) are known to be harmful to human health, causing respiratory symptoms and lung disease. In the atmosphere, SOx can lead to acid rain, which can harm crops, forests and aquatic species, and contributes to the acidification of the oceans.

These Regulations are at the instigation of the International Maritime Organisation (“IMO”). Ships must be issued with an International Air Pollution Prevention (IAPP) Certificate by their Flag State. This certificate included a section stating that the ship uses fuel oil with a sulphur content that does not exceed the applicable limit value. However, there is a concern about enforcement. The IMO does not set fines or sanctions. Instead enforcement is down to the individual State Party. There is also some concern that there is not sufficient compliant fuel oil to meet projected demand.

 

Mark Carney wants to see action on climate change finance disclosures

In what will be one his last interviews as Governor of the Bank of England, Mark Carney told the BBC Radio 4 Today programme (as part of the episode edited by Greta Thunberg) that the Bank wants action by companies on climate related financial disclosure, so much so that it should become ‘the norm’.

What is interesting is that Mr Carney considers climate related financial disclosures are necessary, not so that institutional investors can understand the impacts of large investments, but so that, in his words, ‘you and I… can understand how our money is being invested’ and whether that money is being invested ‘in accordance with the transition path’ that is ‘the law of the land’.

Of course, what the ‘transition path’ comprises is still being agreed and what you and I might think of as green, or indeed dirty, investment might differ. Shortly before Christmas the European Parliament approved a compromise to the EU’s sustainable finance rulebook (at the insistence of the UK, France and a host of Eastern European countries including Poland, Hungary and the Czech Republic) to recognise nuclear and gas as ‘transition’ sources of energy.

This is interesting because when Mr Carney was asked in the interview about whether he considered there to be enough ‘truth in our political debate’, he responded to say that on climate change he thought that there should be a ‘cross-party, non-partisan approach’ so that information provided is ‘absolutely clear’.

Whilst it is not suggested that countries should not be able to debate and determine whether nuclear and gas energy should be considered as ‘transition’ sources of energy, for example, it would seem that if Mr Carney’s wish for you and me to understand whether our money is being invested greenly or not, there is going to need to be some education as to what constitutes a green investment in the eyes of the state. Whether that may differ from what you and I consider to be a green investment will remain to be seen.

Either way, expect to see a lot more discussion as to whether investments are ‘in accordance with the transition path’; it’s the law of the land.

 

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