Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC, Christopher Badger and Natasha Hausdorff consider the publication of the EU’s mandate for UK trade deal negotiations, difficult choices ahead for flood planning and new UK and international environment appointments.

EU publishes its mandate for negotiation with the UK on trade

The EU today published its mandate for the negotiation of a new partnership with the UK and Northern Ireland.

Under the heading ‘Level Playing Field and Sustainability’ the EU want robust commitments to ensure a level playing field. The envisaged agreement should “uphold common high standards and corresponding high standards over time with Union standards as a reference point” in areas including environmental standards and climate change. A governing body is to be empowered to modify the level playing field commitments in order to include additional areas or to lay down higher standards over time.

Corresponding high standards implies regulatory equivalence, if not regulatory alignment. The phrase “over time” is undefined. However, by insisting on using Union standards as a reference point, this gives force to the argument that the EU are to insist on dynamic alignment after the end of the transition period in areas such as environmental protection. Union standards are inevitably interpreted by the European Court of Justice. The implication is that the EU will seek to tie the UK to its own environmental standards and laws.

Frustratingly, this proposal is not detailed further in the mandate. Under the sub-heading ‘Environment and health, the document records:

The envisaged partnership should ensure that the common level of environmental protection provided by laws, regulations and practices is not reduced below the level provided by the common standards applicable within the Union and the United Kingdom at the end of the transition period…

This amounts to a non-regression clause but doesn’t reference dynamic alignment.

The document then goes on to list a large number of environmental areas such as public participation and access to justice in environmental matters, nature and biodiversity management and waste management. It goes on to state:

The envisaged partnership should lay down minimum commitments reflecting standards, including targets, in place at the end of the transition period in those areas, where relevant.

The Government is likely to argue that it has already factored these in to the current Environment Bill.

According to the mandate, the Parties should consider linking greenhouse gas emissions trading systems and that, at least, the UK should ensure that it has a system of carbon pricing of the same effectiveness and scope as provided by common standards, including targets, agreed within the Union before the end of the transition period.

The document goes on to state that where the Parties increase their level of environmental, social and labour and climate protection beyond the commitments in the mandate, the envisaged partnership should prevent them from lowering these additional levels in order to encourage trade and investment. This thereby prevents the UK from reducing improved standards in the future in an effort to reach a separate trade deal, even where those higher standards have been set by either the governing body (using Union standards as a reference point) or, in the case of a dispute, by a binding independent arbitration tribunal. As attractive as it may be to promote high environmental standards, this is unlikely to sit well with the UK Government.

The issue may lie with “using EU standards as a reference point”. If a common goal is to seek to improve environmental standards, is it necessary to insist that the EU provide the benchmark? Given the cross-border nature of environmental issues, is this the time to establish a pan-European environmental body or an international environmental court, with the UK adopting a leading role? Alternatively, the UK is likely to argue that, if a commitment is given on non-regression from the standards in force at the end of the transition period, why should there be any obligation for the UK to continue to refer to EU standards and laws? However, it appears that the EU doesn’t necessarily trust the UK not to sacrifice environmental standards in the pursuit of potential trade deals.

It is of note that the EU mandate goes further than the Political Declaration of 19 October 2019, which referred to “appropriate and relevant Union and international standards” and “relevant internationally agreed principles and rules … including the Paris Agreement” without providing for any priority in their application or relevance.

The mandate can be found in full here

Flood Resilience or Flood Protection – the choices ahead

This has been a difficult time for those dealing with the bad floods that have been caused by Storms Ciara and Dennis. There has been a record number of flood warnings and alerts in England this week. One way forward may be provided by the manifesto commitment to invest £4 billion in flood and coastal defences, over the next five years. The Budget is due in March and is likely to include considerable investment commitments to new infrastructure. Indeed, a National Infrastructure Strategy is also expected.

It is into this difficult situation that a recent joint letter to the Secretary of State for Environment, Food and Rural Affairs has come. You don’t often see a joint letter written by the leadership of the National Infrastructure Commission, the Committee on Climate Change and Flood Re (the insurance body), and their message is an important one.

The problem the UK faces is that “we cannot afford to continue to build our way out of future climate risks in many places”. This applies to all climate futures, including a net zero world. Their letter promotes the use of national standards for flood resilience as the way forward. Using national standards will be more equitable, support adaptation to climate change and should ensure that society as a whole is better off, with the benefits exceeding costs.

Most people would probably think that “resilience” sounds like a Good Idea. The Environment Agency’s draft National Flood & Coastal Erosion Risk Management (FCERM) Strategy certainly does and uses the word “resilience” or “resilient” 210 times in its 64 pages. But it is not a simple policy to adopt. The hard questions remain about who bears the individual costs on the ground. Looking at the recent headlines, the popular desire still seems to be to spend the money to increase protection, and to try to eliminate all flooding. More resilience is not the idea that comes to mind when you see people sweeping out their flooded shops and houses yet again. In addition to the Budget, we need to keep an eye on the FCERM, which still needs Ministerial approval before it can be laid before Parliament.

On a final note, it is being reported that Sir James Bevan, head of the Environment Agency, is to give a speech warning against the building of new homes on flood plains. He will also raise the prospect that some communities would be better off moving out of harm’s way, as some places will simply prove too hard to protect.

The new environment team: Environment Secretary George Eustice and COP26 President Alok Sharma

As part of Prime Minister Boris Johnson’s February 2020 cabinet reshuffle, George Eustice has succeeded Theresa Villiers as Environment Secretary and Alok Sharma has been appointed COP26 President, alongside his new position as Secretary of State for Business, Energy and Industrial Strategy.

Eustice’s experience in Environmental matters spans the last decade. He served as a Member of the Environment, Food and Rural Affairs Select Committee between 2010 and 2013, before being appointed to advise David Cameron on Energy and Environment issues. In 2013 he appointed Parliamentary Under-Secretary of State for Agriculture, Fisheries and Food. He was thereafter, in 2015, promoted to Minister of State within the same department, in which capacity he served until 2019. Eustice has called his new appointment to Secretary of State for Environment, Food and Rural Affairs his “dream job”. Over the weekend George Eustice was tasked with defending the government on flood defences, disputing in an interview on Sky News that property prices inform the flood defence spending formula and that urban zones were disproportionally financed in comparison with rural areas.

Sharma’s experience in international diplomacy as the former Secretary of State at the Department for International Development, is said to be a significant advantage in driving ambitious climate action from countries attending the COP26 conference in Glasgow this November. His appointment came despite Michael Gove and Zac Goldsmith being heavily linked with the position. Sharma was part of the UK delegation that attended the UN Climate Summit last year, where he spoke to the General Assembly. His stated intention is that the November conference will speed up the global journey to net zero carbon, by building on efforts to urge all countries to bring forward ambitious plans to curb their emissions ahead of the event itself. Last week Sharma hosted a high-profile meeting with UN Deputy Secretary General Amina Mohammed, where they committed to working closely together towards a successful, globally ambitious summit. COP26 will be the largest summit the UK has ever hosted, with over 30,000 delegates, including world leaders, experts, campaigners and government officials.

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 Natasha Hausdorff consider recent flooding events in the UK, the Tate Gallery viewing platform case and the rise in fly-tipping and organised crime.

Flood of the century?

The last few days have seen residents of flood-stricken towns and villages understandably protesting that defences built to withstand a “one in a hundred years flood event” have failed them more than once in the past few years. What are the odds of that?

Anyone who wants to know the full answer is referred to the Wikipedia article “100-year flood” (all four A4 pages of it if converted to PDF). Like most things statistical, the concept is not at all straightforward to digest. The starting point is the definition: “a flood event of a magnitude which has a 1 in 100 chance of being equalled or exceeded in any given year”. One then has to go on to determine that magnitude for a particular location, by reference to historic data, which must then be “tweaked” to reflect a prediction as to the manner in which the future behaviour of the weather might differ from that to date. The scope for uncertainty is obvious and many previous assessments have failed, for example, to take any or sufficient account of climate change.

The next point to take on board is that such an event, once defined and attributed a magnitude, is not bound to occur even in any full period of 100 years. (The likelihood of it so occurring is in fact about 63.4%). Conversely, such an event can indeed occur in two consecutive years, although that is very unlikely (0.01%). If such an event does occur repeatedly within a return period much shorter than 100 years then one has to start questioning the correctness of either the historical data from which the threshold magnitude was determined or the predictions made as to future weather behaviour and the hydraulic performance of the catchment area in question.

The Met Office has just announced investment of £1.2bn into a new supercomputer which will predict weather by reference to grids only 100m square (as opposed to the current 1500m square). Such high resolution, if made available to the Environment Agency and other bodies concerned with the design of flood defences, should enable much improved determinations of the 1-in-a-100-years figures. Whether the resources will then be available to build to the more accurately-determined standards is a different matter altogether. Rather than greater resources, there may well need to be greater realism.

Privacy and private nuisance

(1) “Overlooking” a person’s private property cannot give rise to a claim in private nuisance, and (2) an Article 8 right to privacy cannot be superimposed on the tort of private nuisance.

These are the headlines of the Tate Gallery viewing platform case, recently before the Court of Appeal (Fearn v. The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104).  This was the case which concerned the tens of thousands of prying visitors at Tate Modern who liked to enjoy the view into the flats of Richard Rogers’ glass masterpiece next door as much as the views of the rest of London.

There is no right not to be overlooked because the previous cases say so.  This was the judgment of the Court of Appeal.  Moreover, there is no Article 8 right because Article 8 is not always about property rights, whereas the tort of private nuisance is so restricted.

About every ten years or so the higher courts like to assert that nuisance responds to the varying social and economic circumstances of the era.  But it is extraordinarily difficult to think of any case in which the court has ever demonstrated such a response.

Indeed, judges always seem pleased to take up the opportunity to discuss what is meant by Bramwell B in Bamford v. Turnley (1862) 3 B&S 66 when he said: “Those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action”.   There is a usefully pragmatic assessment of this phrase by this Court of Appeal for those who are interested.

The Court of Appeal dismissed the appeal against the trial judge’s order in language which would have pleased any 19th century jurist.

When the courts do appear to move nuisance incrementally forwards, what they are more likely to be doing is to make some error as to the traditional understanding of the relevant principles.

There is a good case for saying that the Court of Appeal mixed up the rules when it decided in Williams v. Network Rail Infrastructure Ltd [2019] QB 601 that undue sensitiveness does not affect the assessment of whether or not there is a nuisance.  Plainly in the case of a nuisance by emanation (such as noise, dust, smell), this is a relevant factor, since it goes to the overriding question of “reasonableness” or give and take.

There was an opportunity to set matters straight in this case, but unfortunately it was lost, in an otherwise typically conservative approach to what is meant by a “nuisance”.

The rise in fly-tipping and organised crime

The increasing problem of large-scale fly-tipping across England has recently been blamed on organised criminal gangs. The illegal and uncontrolled disposal of waste can cause serious pollution of the environment, risk to human health and harm to wildlife and farm animals. The costs to local authorities and landowners in clearing up waste have been spiralling and the practice has been undermining legitimate waste management companies who are undercut by illegal operators.

The BBC has reported on the issue, noting an increase in fake companies hiring out, or breaking into, buildings in order to dump clients’ waste, which has cost local authorities almost £60m in clean-up costs since 2012. The crisis caused by illegal waste removal services has hit parts of London and Manchester. It is thought that the introduction of fees at many recycling centres has prompted the rise of organised criminal fly-tipping.

Marc Lidderth, an area manager for the Environment Agency (“EA”), indicated on BBC radio that fly-tipping crime was “the new narcotics“, with the EA estimating the cost to the economy of at least £600m a year. Sir James Bevan, chief executive of the EA, has said organised crime gangs linked to slavery, drugs and firearms were exploiting the waste industry in massive fraud and fly-tipping schemes.

The relevant offences under the Environmental Protection Act 1990 (“EPA”) are: (i) waste deposit offences under Section 33 of the EPA; (ii) waste duty of care offences under Section 34 of the EPA; and (iii) failure to remove waste as required under Section 59 of the EPA. Although anyone can bring a prosecution for fly-tipping under the EPA, they are most commonly brought by the Environment Agency, in the case of larger scale fly-tipping, hazardous waste and fly-tipping by organised gangs, and by local authorities which investigate, prosecute and clear small scale fly-tipping on public land (including public highways). Councils have been clamouring for further funding in order to combat this growing problem, as Defra recorded that more than half of all local authorities in England posted an increase in the number of large fly-tipping incidents recorded between 2011-12 and 2018-19.

In accordance with the 2014 ‘Environmental Offences – Definitive Guideline’ published by the Sentencing Council, for the worse offences, individual offenders face a maximum of five years custody and corporations unlimited fines. Nevertheless, Countryside Alliance head of policy Sarah Lee called for tougher sentences to address the crisis.

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Environmental Law News Update

In this Environmental Law News Update, Christopher Badger and Mark Davies take a look at the recently published Environment Bill.


Structure

The Bill is split into eight Parts, with Part 1 containing three separate chapters. Part 1 concerns Environmental Guidance, Part 2 Environmental Governance in Northern Ireland, Part 3 Waste and Resource Efficiency, Part 4 Air Quality and Environmental Recall, Part 5 Water, Part 6 Nature and Biodiversity, Part 7 Conservation Covenants and, last but not least, Part 8, the ever exciting, Miscellaneous and General Provisions.

It looks like a fairly comprehensive piece of legislation, although it has only been through its first reading in the House of Commons, so its contents might change.

The Government certainly thinks its comprehensive. When it was published, environment secretary Theresa Villiers said that it formed part of the ‘pitch to be a world leader on the environment as we leave the EU’, with it setting ‘a gold standard for improving air quality, protecting nature, increasing recycling and cutting down on plastic waste’.

 

Environmental targets

The Bill requires the Secretary of State to introduce long term targets for priority areas of air quality, water, biodiversity, resource efficiency and waste reduction. These targets are set for 15 years in the future and the Secretary of State is under an express duty to endure that the targets are met.

There is to be a review of these targets by 31 January 2023 and subsequent five yearly reviews. The purpose of the review is to consider whether the targets would significantly improve the natural environment in England. The purpose of the review is not to see whether or not the targets are on course to be met, nor does the Bill specify any corrective action if it is evident that targets are or are likely to be missed.

Progress is to be reported annually in a report to be laid before Parliament. However it is important to remember that, for example, the Natural Capital Committee has been scathing in its criticism of recent ‘Progress Reports’ against the 25 Year Environment Plan. The net effect? Put simply, the Bill doesn’t yet require meaningful progress reports.

Does that mean that the “targets” are arguably misleading? Is their effect to essentially delay the urgency and necessity of environmental improvements to a date 15 years in the future? If there is no continuing public system of review to see whether we are ‘on target’, there is always the risk that the Bill simply kicks the can down the road. But surely that cannot be the intention.

There is a power to either revoke or lower targets. This can be done if the Secretary of State is satisfied that ‘meeting the existing target would have no significant benefit compared with not meeting it or with meeting a lower target’ or ‘because of changes in circumstances since the existing target was set or last amended the environmental, social, economic or other costs of meeting it would be disproportionate to the benefits.’

This raises the potential prospect that the Government will exercise a discretion to license heavily polluting projects on the basis they make economic sense. For example, can Heathrow be justified on the basis of its economic benefit, despite the potential environmental cost? Lowering the target requires a change in circumstances, but there doesn’t appear to be any materiality threshold that must be reached, only that the Secretary of State must consider that the ‘cost’ of meeting the target is disproportionate to the benefits. That ‘cost’ could include a lost opportunity cost or a loss of predicted economic benefits resulting from a major infrastructure project.

One welcome addition from a previous draft is the introduction of a two-yearly review of “significant developments in international legislation on the environment” that will then be “factored into the Environmental Improvement Plan and environment target setting process.” Whilst this doesn’t guarantee alignment (expressly ruled out by the current Government in the context of the UK-EU relationship) it does keep our place on the world stage closely under review.

 

Environmental principles

The Secretary of State must prepare a policy statement on environmental principles, explaining how the principles should be interpreted and proportionately applied by Ministers of the Crown when making policy.

The environmental principles have been reduced to just 5. These are:

(a) the principle that environmental protection should be integrated into the making of policies,
(b) the principle of preventative action to avert environmental damage,
(c) the precautionary principle, so far as relating to the environment,
(d) the principle that environmental damage should as a priority be rectified at source, and
(e) the polluter pays principle.

A Minister of the Crown is now required to “have due regard” to the policy statement on environmental principles currently in effect. This is a slight change in wording from the previous draft, that only required Ministers to “have regard to” the environmental principles.

This raises the question as to what “due regard” actually means. It’s arguably a step up, potentially introducing a more objective element into the legal test to be applied. Due regard implies a degree of weight behind the decision-making process that was completely absent before. However, it is a long way from the establishment of an overarching environmental objective which a number of commentators actively campaigned for.

This legal framework is also a considerable distance from current EU law, which enshrines environmental principles in a constitutional treaty as a legal requirement, with a direct impact on all areas of EU policy that link with environmental protection.

Article 11 of the Treaty on the Functioning of the European Union reads:

Environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development.”

Article 191 of the TFEU begins with:

1. Union policy on the environment shall contribute to pursuit of the following objectives:
preserving, protecting and improving the quality of the environment,
– protecting human health,
– prudent and rational utilisation of natural resources,
– promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

Part of the difference is that EU law has at its heart that overarching objective to improve the quality of the environment. The current draft of the Environment Bill sets out a method of influencing policy, but only where it is not considered disproportionate and apparently yielding little by way of result if the Minister of the Crown decides, after “due” consideration, that the proposed policy should not be restricted by an environmental concern.

 

The Office for Environmental Protection

The Environment Bill creates the OEP, whose principle objective will be to contribute to environmental protection and the improvement of the natural environment.

The OEP will have to prepare a strategy that sets out how it intends to exercise its functions and how it intends to avoid any overlap between itself and the Committee on Climate Change. The relationship between the OEP and the CCC is likely to be particularly important, not least because the CCC appears to be concerned that the OEP will have the effect of forcing it to dilute its environmental message.

The same strategy must also set out the OEP’s enforcement policy, in particular that sets out how it will determine whether failures to comply with environmental law are serious. And it appears to be envisaged that the OEP will uphold environmental standards predominantly through direct engagement and formal notices. Don’t expect the OEP to take many cases to Court.

The Government has committed to having the OEP up and running by 1 January 2021 but there is a huge amount of work to do. One key area is on the implementation of environmental law. The European Commission has historically looked not only at the extent to which law was transposed but also how it operated in practice. In theory, developing closer relationships with local authorities may yield quicker environmental results. However, the emphasis on local authorities may also pose a problem. Taking air quality as an example, if the principal obligations on tackling air quality are to fall on local authorities and their already stretched budgets, is the existence of the OEP likely to spur them to action?

And the Bill doesn’t address those concerns that have been raised about the independence of the OEP and its funding. So much of this is going to depend on how the OEP develops in practice.

 

The excluded matters

Matters that remain excluded from the scope of the Bill are disclosure of or access to information, the armed forces or national security and taxation, spending or the allocation of resources within government.

This has been the subject of much criticism already. In addition, there is no non-regression clause. However, Ministers must make a statement that, in their view, new Bills will not have the effect of reducing the level of environmental protection provided for by any existing environmental law or a statement that the Minister is not able to take that view.

 

Some specific highlights

Just quickly, because we are running out of time, to highlight three specific matters:

  • There are powers to impose producer responsibility obligations under Schedule 4;
  • Financial penalties will be able to be imposed for the emission of smoke in smoke-controlled areas in England, up to £300;
  • The Environmental Protection Act 1990 is amended to allow for regulations to be introduced that will establish an electronic waste tracking system.

 

The verdict

The Bill is a step in the right direction in terms of providing a much needed update on the legislative framework for the environment in the UK. However, there are real concerns about the efficacy of the Office for Environmental Protection; but well have to wait and see how that develops. It’s also worth mentioning that the Bill of course contains the usual statement that the Minister, in this case Theresa Villiers, is satisfied that the provisions of the Bill are compatible with the European Convention on Human Rights – after the success of Urgenda in the Netherlands, this raises the prospect of similar human rights challenges against the finalised Act.

Critically, because net zero is now enshrined in law, policy and practice going forwards have to promote environmental objectives, otherwise in just a few years time the UK will have to implement a wall of legislation, bringing with it serious potential economic costs. It may be easy to point out certain arguable flaws in the drafting of the Bill but ultimately there can be only one direction of travel.

 

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