Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC and Mark Davies consider a challenge from Plan B over the ‘unlawful allocation’ of Government and Bank of England funds, a commitment by Apple to achieve carbon neutrality by 2030 and liability for environmental damage from land drainage.

Plan B challenge the ‘unlawful allocation’ of Government and Bank of England funds

Readers may recall that last week we covered the ‘build back greener’ announcement and concluded that, although it is a step in the right direction, it is still a sticking plaster when compared to the recent recommendations of the Committee on Climate Change. Well…

On 21 July, Plan B sent its latest pre-action protocol letter to the Government. It alleges the unlawful allocation of UK Government and Bank of England funds, as well as the failure to take into account the Climate Change Act, the Paris Agreement, the Human Rights Act and other legal commitments when designing and implementing the COVID Recovery Programme.

As the letter makes clear, the challenge is to the totality of the financial measures designed to support the economy following the interruption caused by the pandemic including:

The UK Treasury’s support for the economy or any section of it that was announced after 1 March 2020; and

Any such future announcements up to and including the anticipated Autumn Budget of the UK Government.

What Plan B seeks to achieve by the judicial review (if it does not receive a satisfactory answer by 4 August) is:

A Declaration that the Recovery Programme must be consistent with the Government’s obligations under the Climate Change Act 2008, the Paris Agreement and the Human Rights Act 1998; and

The quashing of all parts of the Recovery Programme which are inconsistent with such obligations.

This presents a fascinating, extraordinarily wide field of challenge, which could ultimately be part of the challenge’s downfall; the remedy sought could require a court to perform a detailed, ‘red-line’ analysis of months’ worth of Government policy, rather than examining the lawfulness of a single, or even set of, policy choices.

Definitely one to watch unfold. 

Apple commits to carbon neutrality for its supply chain and products by 2030

With very little congratulations, simply ‘well, good’, or perhaps, ‘about time’ might be your response to Apple’s announcement that by 2030 all of its supply chain and products will be carbon neutral. But perhaps the company deserves a little more credit than that.

Apple is already carbon neutral across its own global operations, but this goal, if it can be met, will mean that every Apple device sold will have no impact on the climate. Given that the company’s market capitalisation is over $1 trillion (greater than many countries’ GDP) it is perhaps slightly more of an impressive commitment and one which is praiseworthy.

Apple’s plan is set out in its 2020 Environmental Progress Report, which outlines that it will reduce emissions by 75% by 2030, whilst developing ‘innovative carbon removal solutions’ for the remaining 25%. The company’s 10-year roadmap includes: low carbon product design; expanding energy efficiency; reliance on only renewable energy; innovations in processes and materials; and carbon removal.

So on this occasion (assuming they can stick to it), well done Apple… now it is up to other companies and countries to follow suit.

Liability for environmental damage from land drainage (and other public operations?)

How land drainage should be managed where there are important local nature conservation concerns has been a particular problem issue in recent years.  It has now come to court, in a reference by the German courts to the Court of Justice of the European Union – Naturschutzbund Deutschland– Landesverband Schleswig-Holstein e.V. v Kreis Nordfriesland (Judgment in Case C-297/19 , July 2020).

What we would think of as the local drainage board had been operating a pumping station to help drain land on the Eiderstedt peninsula, for the purposes of habitation and agricultural use.  However, a large part of the area had been designated as a protected area for black tern, a European Protected Species and – importantly – an aquatic bird. The local branch of the well-known NGO, Naturschutzbund Deutschland, considered that, by operating the pumping station, the local board had caused environmental damage harming the black tern and brought an action under the local laws based on the Environmental Liability Directive 2004/35 to get the drainage board to remedy it.

The Directive applies to environmental damage and damage to protected species and natural habitats caused by any occupational activities.  The CJEU has put to rest the argument that this excludes public authorities acting under statutory duties.  The CJEU considers that an “operational activity” in Directive 2004/35 is not limited to market-related activities but would include all activities carried out in an occupational context – including those carried out by a public body under its statutory powers and duties. However, the other argument was that the pumping station was exempt from this liability as it resulted from the ‘normal management’ of the site concerned (an exemption allowed for in the Directive).  The CJEU has agreed with this, but only to the extent that the management takes account of the objectives and obligations laid down in the Habitats Directive and the Birds Directive, and not just the established farming practices.  It can only be regarded as ‘normal’ if it does. It is not enough therefore to show that the management measures are long-established and can be regarded as usual for the site concerned, as this will be insufficient if they call into question compliance with the objectives and obligations laid down in the Habitats Directive and the Birds Directive.  That is a difficult standard to meet in practice. The case now goes back to the German court to decide on the facts. But it leaves you wondering how many established practices and procedures will need reconsidering.

Please also view our Covid-19 Guidance Tracker and Blog – new resources set up by the Regulatory team to enable businesses and legal professionals to more easily navigate to the applicable Covid-19 guidance that is most relevant to their area of work.

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 Mark Davies consider ongoing worries over water supply, delays to the planned incorporation of sewage sludge use within permitting regulations and plans to ‘build back greener’ after the lockdown.

Ongoing worries over water supply

“The responsible bodies – the Department for Environment, Food & Rural Affairs, the Environment Agency and Ofwat – have collectively taken their eye of the ball and urgent action is now required if we are to have a reliable water supply in the years ahead.”

That is the stark message from the House of Commons Public Accounts Committee in its report ‘Water supply and demand management’ published on 10 July. Depressingly, none of the underlying reasons are new; they are the usual culprits: unremedied leakage (20% of supply), increasing demand and inadequate resources. The Committee says in terms that the involvement of so many bodies (including the water companies themselves) has resulted in a lack of ownership of the problems. The dynamics of the quinquennial price-setting process create confusion as to the proper achievement of balance between improved performance, acceptable bills and the statutory entitlement of the companies to achieve a reasonable return on their assets.

Amongst the Committee’s recommendations are that Defra should publish an annual league tables of reductions in leakage and consumption. It starts the ball rolling by publishing in the report a table of losses by leakage per kilometre of pipe, which reveals a five-fold difference between the worst performer (Thames) and the best (Anglian). The Committee quotes Ofwat as saying that the water companies would “surprise themselves” at what they can achieve. The Committee says that it will be surprised if they do, without further incentives. It also concludes that water efficiency lags far behind energy efficiency in policy and public perception. A national message on the need to reduce water consumption is called for.

There are further interesting passages on the industry aim for net-zero by 2030 and on damage to the environment, with particular reference to the threats posed by HS2, which the Environment Agency has required to be specifically identified and mitigated.

Sticky times for sewage sludge

In our update for 25 March 2020 we commented upon the Environment Agency’s plans to bring the use of sewage sludge within the framework of the Environmental Permitting Regulations by 2021. Quite apart from the problems caused by the irreducible need to put the stuff somewhere, the ENDS Report reveals that the plan has now hit the buffers, or at any rate moved onto the slow line, for a quite distinct reason: the Covid-19 pandemic. It is now expected to be implemented in 2023 rather than 2021. At least that will provide more time for the underlying challenges to be satisfactorily addressed. Meanwhile, the Augean Stables continue to pour forth, as a recent drive down the A1 through the well-fertilised fields of County Durham and Yorkshire in an open-topped car made only too apparent at regular intervals. Sometimes it’s difficult to escape from one’s work.

Plans to ‘build back greener’

As the government’s plans to reopen following the lockdown continue to pick up pace, announcements as to what shape that recovery is going to take are being made.

In the Chancellor’s ‘summer statement’ several notable, welcome, commitments to support a green recovery were made:

  • A ‘kickstart’ jobs scheme as well as a new apprenticeship scheme to provide incentives to existing green companies;
  • £2bn in the form of green home grants (expected to cover insulation, glazing, boilers and other forms of energy efficiency in homes);
  • £1bn to improve the energy efficiency of public sector buildings; and
  • £50m to pilot the decarbonisation of social housing.

These measures, in concert, are expected to cut carbon emissions by more than half a megatonne a year, support thousands of ‘green’ jobs and make many thousands of homes more energy efficient.

Is it a bit of a sticking plaster when compared with some of the recent recommendations set out in Committee on Climate Change’s latest report? Yes.

Does it show that the government is moving in the right direction as we reopen then economy? Yes.

All in all, it’s not a bad start.

Please also view our Covid-19 Guidance Tracker and Blog – new resources set up by the Regulatory team to enable businesses and legal professionals to more easily navigate to the applicable Covid-19 guidance that is most relevant to their area of work.

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

COVID-19, employers and Government guidance

by Gordon Menzies

As the requirements to close premises and businesses of particular types are eased, the amount of governmental guidance for those business that can reopen (or will soon reopen) has correspondingly and substantially increased.

The starting point for any business is the gov.uk guidance produced by central government. The principal sets of guidance follow a set layout, beginning with a section dealing with ‘thinking about risk’, which emphasises the importance of carrying out a COVID-19 specific risk assessment, followed by a section which deals with ‘managing risk’ focused on reducing such risk to the lowest reasonably practicable level by taking preventative measures in order of priority.

Such an approach is uncontroversial and will be familiar to those involved in discharging the health and safety functions of an employer. The principle that risk assessments are not about creating large amounts of paperwork and that ‘the people who do the work are often the best people to understand the risks in the workplace and will have a view on how to work safely’ is clearly acknowledged at this point in the guidance available.

However, the difficulty that arises comes from the sections that follow. Again, the pattern adopted is generally the same. There are a series of sections which deal with identifying who should go to work, social distancing at work and managing particular aspects of what happens whilst at work. The formulation that is used again and again is to identify sections of particularised control measures as ‘steps that will usually be needed’. This appears to go much further than the type of industry and HSE guidance which those responsible for health and safety within an organisation may be familiar. This is because what is proposed in the gov.uk guidance is the setting down of a detailed list of steps that would be expected rather than matters to be considered in all the circumstances. For example, in the gov.uk guidance for factories, plants and warehouses, steps that will usually be needed include providing additional parking or facilities, having more entry points into a building and changing systems for processing those who pass through those entry and exit points. These specific ‘steps that will be usually needed’ are repeated in other sets of guidance such as those for offices, restaurants and shops. However, such expected ‘steps’ can be potentially onerous and require measures that may in the circumstances not usually be needed at all. However, the formulation adopted in the Guidance tends to suggest that there is a presumption or expectation that such steps are to be taken and a business will be assessed by any enforcing authority accordingly.

It seems that one practical answer is for businesses, in tandem with carrying out a risk assessment as they would for any other specific risk, to create a separate compliance document based on the government guidance. The risk assessment would  identify the risks and the controls that are going to be adopted in the usual way whilst the compliance document would deal with the controls identified in the government guidance that are not going to be adopted. This document could be used to identify the various ‘steps that would usually be needed’ which are either not applicable or, if they are, to record why a decision has been taken not to implement them. Thus, a business will be able to demonstrate, at a glance, that the government guidance has been taken into account and why steps that would usually be needed are not, in fact, needed.

The difficulties with the guidance are compounded by the fact that there is also industry led guidance which has been adopted by government and published on its website which sits beside the gov.uk guidance. These do not always appear to be consistent with each other. Taking the guidance available for the hospitality industry as an example, the gov.uk guidance formulates control measures in terms of ‘steps that will usually be needed’ but then refers the reader to ‘fuller’ industry guidance. The industry guidance that is on the Department of Culture, Media and Sport website is that produced by UK Hospitality in partnership with the DCMS. However, on one reading, the industry guidance is actually much less prescriptive than the gov.uk guidance. Social distancing may be the best example of this tension. As with other areas the gov.uk guidance is firmly anchored in identified ‘steps that will usually be needed’ whilst the language used in the industry guidance is much more flexible; for example, it notes that social distancing ‘will be a difficult subject but below are a few thoughts on what could be applied…’ and ‘consideration needs to be given to how social distancing measures can be applied’ .

Thus, the problem for business is having to deal with two sets of guidance, one which may be more exacting than the other. The less prescriptive approach taken by the available industry guidance is arguably far more consistent with the general established principles in health and safety law, namely that the responsibility for identifying what control measures will usually be needed is actually for the business who knows its activities best. These principles are acknowledged in the introductory sections of the gov.uk sets of guidance but are apparently in a degree of tension with what follows in terms of ‘steps that will usually be needed’.

The prudent employer will, no doubt, wish to err on the side of caution and comply with the higher standard if there is a conflict. Producing a compliance document which shows that an employer has properly considered, if only to reject, ‘steps that will usually be needed’ will also go a long way to being able to demonstrate compliance. However, it is disappointing that a raft of guidance which is designed to assist employers may in some cases actually make their task more difficult.

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Gordon Wignall and Natasha Hausdorff consider the extent of overflows from the sewerage system, the assessment of waste within the Transfrontier Shipment Regulations and new legislation making e-scooters legal.

More leaky pipes?

Much has been said recently about escapes from the amount of leakage from the pipes of water undertakers. Now attention is turning (not for the first time) to what might be seen as designed “leakage” from the pipes owned and operated by the sewerage undertakers (in most cases the same entities as the water undertakers in any particular region).

The two systems differ fundamentally. The inputs to the water supply system are capable of very precise control and such leaks as occur, however numerous, are unintended and represent some physical or operational failure within the system. Hence the strict liability of water undertakers for damage caused by escapes from their pipes (s.209, Water Industry Act 1991). In contrast, the combined system of sewers which endures from the Victorian era in this country is designed to overflow. That is because, as well as the (reasonably predictable) flows of domestic and industrial waste water the same pipes receive also the (highly variable and unpredictable) flows from rainwater drainage systems, the latter being capable of overwhelming the capacity of the pipes. To create a system capable of carrying to treatment all flows at all times would be at the least extremely expensive and probably physically impracticable. Hence the need for designed overflows, as mentioned in the context of bathing water quality in our blog on 24 June 2020. These are accordingly permitted by the Urban Wastewater Treatment Directive “during situations such as unusually heavy rainfall” (subsequently interpreted by the CJEU in Case C-301/10 Commission v UK as being limited in effect to “exceptional circumstances”).

The Guardian (1 July 2020) has established via environmental information requests that such situations arose on “more than 200,000 occasions last year”. Many overflows are still unmonitored. One enduring problem remains that of “deemed consents”. On the eve of privatisation in 1989 the Government woke up to the fact that many pre-existing overflows (c. 10,000) were not the subject of any formal consent at all. In order to ensure that the new sewerage undertakers were not born into “original sin”, the legality of such discharges was ensured by the wholesale granting of temporary consents to discharges from scheduled overflows, with only the broadest of conditions of general application. The plan was that these would be systematically replaced by more detailed bespoke consents more precisely defining the parameters of permitted discharges with due regard to their environmental impact. Until then, there was in effect “deemed consent” to the discharges in fact taking place.

The Environment Agency then set about the enormous task of individually “permitting” the overflows in question, in particular during the AMP3 period. However by 2010 approximately 4,000 remained the subject of “deemed consents”. The EA then sought to impose a new, improved set of “blanket” conditions but appeals by six sewerage undertakers resulted in a much diluted (*) standard suite of conditions being substituted by the Inspector determining the appeals. It seems unlikely that much progress has been achieved since given the strictures upon the EA’s expenditure and one suspects that these overflows are making a significant contribution to the numbers reported by The Guardian (or contributing further uncounted instances of overflow).

Enter in February 2020 the Sewage (Inland Waters) Bill 2019-21, a private members’ bill introduced by Philip Dunne MP and described as “A Bill to place a duty on water companies to ensure that untreated sewage is not discharged into rivers and other inland waters; and for connected purposes.” Its first (undebated) reading was on 5 February 2020 and its second reading will take place on 13 November 2020. No text of the bill is yet available. If it sets out to achieve what its title literally suggests, then it appears to be seeking to go further than the Urban Waste Water Directive by imposing an absolute prohibition without even the “get-out-of-jail-free” card of “exceptional circumstances”. Watch this space.

*yet another aqueous metaphor, sorry.

Transfrontier Shipment Regulations

In a criminal prosecution, what evidence is admissible to show that the process of recovery of waste at a receiving plant is relevant for the assessment of its waste characteristics when it is exported?

This was the key question of the recent Court of Appeal decision in R. v. Biffa Waste Services Ltd [2020] EWCA Crim 827 (3 July 2020), Biffa having appealed against two convictions contrary to the Transfrontier Shipment Regulations 2007.

Biffa had sorted out mixed household waste received at its Edmonton plant.  It then sold consignments of the waste on as green list scrap paper to China.  On examination at Felixstowe, the consignments were found to contain a quantity of soiled nappies, incontinence pads, sanitary towels and other contaminants.

The prosecution explicitly relied solely on the argument that the material being exported was household waste (a Y46 categorisation).  Although household waste can become green list waste, whether there has been such a transformation is a question of the quality of the sorting process which takes place in the country of export.  Exportation begins when a consignment starts its journey.

It is perhaps easy now, with the benefit of hindsight, to say that the legal outcome was clear-cut once the Crown had pinned its colours to a prosecution on the basis that what was consigned was household waste (given the detailed wording of the underlying EU Regulation, 1013/2006).  This is because the export of household waste to a country such as China (and other ‘non-OECD’ countries) is expressly prohibited.

That said, part of the notes to the EU Regulation specify that B3020 and other green list waste is only prohibited for export if contamination levels “[prevent] the recovery of the waste in an environmentally sound manner”.  The Holy Grail of a defence to a prosecution is to be able to argue that recovery of such waste in the country of importation is therefore relevant to a criminal tribunal’s assessment.  However, as the Court of Appeal has bluntly confirmed, the Regulation cannot be read to import this defence, available only in respect of one type of waste as categorised under the Regulation (i.e. green list waste) into that section of the Regulation which concerns other riskier types of wastes (in this context, household waste).  Ultimately, this is by reason of the classification system which applies under the exports prohibition as mapped out by Article 36 (in particular under Article 36(1)(b) as distinct from 36(1)(g)).

The Court of Appeal has also gone on to provide guidance, should a tribunal of fact ever decide that waste material, once sorted by the exporter to become a green list waste (such as waste paper), nevertheless contains a small quantity of contaminants.  In such a case, evidence may be admissible to show that the nature and character of the contaminants is such that recovery of the waste will not be impeded in an environmentally safe manner.  This would protect a shipper where the tribunal might be offended by the nature of the contaminants (such as soiled nappies).  (This was not the type of case which the court was considering.)

R. v. Biffa Waste Services Ltd does not provide a particular gloss or clarification on the ECJ judgment in C-654/18, Interseroh (recently covered in this blog).  That case too, however, included speculation as to the point at which contaminants might cease to be considered de minimis, and also with the problem whether the recovery process is relevant to the classification of waste when exported.

The judgment is of interest for other reasons.  First, it sets out the judge’s direction as to the factual assessment to be carried out.  Secondly, it shows the manner of the dismissal of Biffa’s appeal against the judge’s ruling that Biffa’s previous convictions could be adduced to the jury in order to correct the false impression a witness had given that it was not the sort of company to commit an offence, whilst at the same time avoiding the risk of any unfair prejudice which might have arisen from evidence about the company’s various previous convictions (s.105, Criminal Justice Act 2003).

Rental e-scooters made legal with legislative revisions prompted by pandemic

This week rental e-scooters became legal on roads in Great Britain in a concerted effort to ease pressure on public transport during the pandemic. In order to help support the green restart of local travel, trials will soon be operational, following the changes to legislation, which came into force on 4 July 2020.

E-scooters have been found to fall within the definition of “motor vehicle” under Section 185(1) of the Road Traffic Act 1988 (RTA), as “a mechanically propelled vehicle intended or adapted for use on roads” (DPP v Saddington [2000] 10 WLUK 691).  The Department for Transport (DfT) this week published guidance for e-scooter-for-hire firms.

The e-scooter will continue to fall within the statutory definition of a “motor vehicle”, as a new sub-category providing that it:

  • is fitted with no motor other than an electric motor with a maximum continuous power rating of 500W and is not fitted with pedals that are capable of propelling the vehicle;
  • is designed to carry no more than one person;
  • has a maximum speed not exceeding 15.5 mph;
  • has 2 wheels, 1 front and 1 rear, aligned along the direction of travel;
  • has a mass including the battery, but excluding the rider, not exceeding 55kg;
  • has means of directional control via the use of handlebars that are mechanically linked to the steered wheel; and
  • has means of controlling the speed via hand controls and a power control that defaults to the ‘off’ position.

Vehicle orders will be issued under s44 and s63(5)–(7) of the RTA for vehicles of particular operators assessed as being suitable to participate in trials. The approach to regulation is similar to that established for electrically assisted pedal cycles (EAPCs).

Under the new regime, local authorities and devolved administrations in England, Scotland and Wales can allow or run e-scooter sharing schemes in their areas as part of 12-month trials. Some 50 local authorities have expressed an interest to the government in having e-scooter trials, which were originally meant to run in 2021, but have been brought forward to encourage alternatives to public transport.

The vehicles are banned on pavements and limited in speed. There is a recommendation, but not a requirement, that riders wear helmets. Riders under the schemes will need a full or provisional car, motorcycle or moped licence to use the vehicles, and they must be aged 16 or over. Privately owned e-scooters remain illegal on roads. The DfT said in a statement that the regulations only cover rental schemes “to avoid a flood of poor-quality scooters onto the streets”.

Covid-19 Guidance Tracker: Environment

Please also have a look at the Environment section of our Covid-19 Guidance Tracker  which tracks the official guidance being published in a wide range of sectors including coverage of the environment sector.

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, Nicholas Ostrowski, Natasha Hausdorff and Mark Davies consider a new consultation on the England Tree Strategy, a progress report from the Committee on Climate Change and the launch of a new National Framework for Water Resources.

Consultation on the England Tree Strategy

The Department for Environment, Food & Rural Affairs, Forestry Commission has launched a public consultation as part of its strategy for trees, woodland and forestry in England. The March Budget saw the new ‘Nature for Climate Fund’ of £640million earmarked for projects including the England Tree Strategy, to deliver manifesto tree planting commitments, alongside peatland restoration and wider nature recovery.

Running for 12 weeks, until 11 September 2020, the initiative seeks views on how to increase tree planting and tree and woodland management, as part of the Government’s initiative to combat biodiversity and climate crises. The new strategy envisages policies to expand tree cover, support woodland management and increase public engagement with trees and woodlands. It is of course closely concerned with the Government’s tree planting commitment, which is to increase tree planting to 30,000 hectares per year across the UK by 2025.

The consultation seeks information on:

  • How to improve the management and protection of existing public and private trees and ancient woodlands;
  • How best to further connect people to nature;
  • How to accelerate tree planting to combat climate change;
  • How to further connect people to nature to enhance personal wellbeing; and
  • How to enhance the role that trees and woodlands play in supporting the economy.

Close cooperation with the devolved administrations, communities and landowners has been recognised as integral to these plans to design a strategy that increases and balances the different benefits that woodlands provide, to nature, the public and to the economy. The consultation widens the pool of desired input to include farmers, foresters and land managers, experts and environmental organisations, as well as ordinary members of the public. The opinions sought on the future creation and management of trees, woodlands and forests also have a view to the target of reaching net zero emissions by 2050.

The consultation has a focus on the increased role that trees and woodlands can play in supporting the economy, as part of the recovery from the coronavirus pandemic, building back better, more secure and resilient. Forestry Minister Lord Goldsmith, said of the consultation: “In many ways the coronavirus pandemic has shone a light on the importance of nature. Growing and protecting our nation’s forests will be an integral part of our recovery, and the England Tree Strategy will give us the tools to do this.

Committee on Climate Change: 2020 Progress Report

On 25 June the Committee on Climate Change published its report to, ‘Reducing UK emissions: Progress Report to Parliament’ under section 36 of the Climate Change Act 2008. It is 196 pages of excellent, sometimes surprisingly direct, optimistically spun grim reading.

The report is structured, for the first time, with a section immediately after the text of the Executive Summary comprising tables that break down the Committee’s recommendations into steps that each Government Department(s) (Cabinet Office and No.10, FCO, BEIS and DFID, etc.) should take and by when. This is a clever move by the Committee, and one which should be welcomed; there can now be no excuse from Government for not implementing (or at least no excuse for not explaining why it is not implementing) the Committee’s recommendations when they have been so carefully set out in a clear and easily digestible manner.

The report then moves through to consider the impact of COVID-19 on the climate challenge (chap. 1) (in summary, short term: priority, medium term: opportunity, long term: no change to the Net Zero target) before looking at progress and lessons learned since 2008 (chaps. 2-3), progress in the last 12 months (chap. 4), planning a resilient recovery (chap. 5) and finally ‘What is needed now – UK climate policy’ (chap. 6).

The final chapter, ‘What is needed now’ is broken down into three core recommendations that are then explained in more detail:

  1. Net Zero needs to be integrated into all Government policy;
  2. Adaptation needs to be integrated into all Government policy; and
  3. Departments must work together to deliver ambitious policy.

“Act courageously – it’s there for the taking,” is the suggestion to the Government by the Committee as to how they should approach its recommendations.

“For heaven’s sake, just get on with it,” would be this author’s alternative suggestion.

The National Framework for Water Resources

In the Spring, the Environment Agency launched a National Framework for Water Resources which it described as a long-term plan for meeting the challenges facing water supplies as a result of climate change and population growth.

It is an ambitious undertaking which (contrary to the direction of travel over the last decade in planning policy) is a move towards strategic regional planning. The framework brings together all the water companies in each part of the country and requires them to produce a regional plan which takes into account increasing resilience to drought, greater environmental improvement, reducing long term water usage, reducing leakage, reducing the use of drought permits and orders and increasing supplies.

The genesis for this new approach stems from a realisation that water companies’ Water Resources Management Plans, which they are required to produce every five years, has meant that water companies are not required to take a wider regional view but can concentrate solely on their own patch which has obvious limitations.

The requirement for operators to co-operate and develop new supplies across their regions is, perhaps, the most interesting and controversial part of the Framework. The summary emphasises that 700 Mega Litres per day comes from unsustainable river abstractions and that that water will need to be replaced from alternative sources along with additional supplies to take account of population growth and to withstand drought. So, where will all the additional water come from? While new reservoirs and desalination plants may seem like the obvious answer, it is often suggested that new reservoirs and desalination plants (which, although expensive, are assets which increase the value of a water company) could be reduced or avoided if water companies in water-stressed regions were willing to buy more water through bulk transfers from water companies outside their catchment or region. This is a particularly hot topic in the South East region where there are well organised groups campaigning against reservoir development who suggest that the gap in supply could be filled from bulk transfers of water to the Thames from the Severn which is less water-stressed.

The framework plainly encourages further exploration of this topic and makes clear that regional groups should ‘scope a wide range of supply options such as reservoirs, water reuse and desalination [and]…investigate the potential for increasing connectivity within and between regions through –longer distance transfers, such as those over 100km in length.’

Although at the moment the regional plans will have no statutory basis and there is no formal requirement to consult, the Framework authors note that this may change as the Environment Bill includes a proposal that the Minister may direct that water undertakers prepare and publish joint (i.e. regional) proposals.

Covid-19 Guidance Tracker: Environment

Please also have a look at the Environment section of our Covid-19 Guidance Tracker  which tracks the official guidance being published in a wide range of sectors including coverage of the environment sector.

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