Environmental Law News Update

In this latest Environmental Law News Update, Gordon Wignall, Christopher Badger and Mark Davies consider clarification on the sentencing guidelines from the Court of Appeal, measures to tackle misleading environmental claims and the announcement of the Government’s Ten Point Plan for a Green Industrial Revolution.

Court of Appeal reminds us: they are guidelines, not tramlines

In R v Lawrence [2020] EWCA Crim 1465, the Court of Appeal took the opportunity to reiterate that the Definitive Guideline for sentencing environmental offences is not a statute and can, where cases merit it, afford a great deal of flexibility to the sentencing Judge.

In this case, the appellant was the operations director and technically competent person of a waste business that suffered multiple waste fires. He had pleaded guilty to four offences, two in relation to the first fire in December 2012 and two in relation to the second fire in June 2013.

The Judge at the sentencing hearing found that culpability and harm for the first fire was negligent category 3. A small fine was imposed and no complaint was made about this.

For the second fire, the Judge found that culpability was highly reckless due to the risks that must have been apparent after the first fire. He also found that all five category 2 harm criteria were met, albeit that there were no category 1 features. He did find that the cumulative effect of the category 2 features had the potential to raise the overall harm into category 1 and that there were multiple aggravating features. The sentence imposed was 9 months imprisonment, suspended for 2 years and 180 hours of unpaid work.

The central submission of the appellant was that the Guideline did not permit the Judge to aggregate the features of the offence to the level of a category 1 harm case.

The submission was roundly rejected. The Court found that there were ample findings made by the Judge to justify finding harm at the top of category 2 with other features available in the offending to aggravate the offending well beyond that. The Guideline explicitly states that “in some cases, having considered these [aggravating] factors, it may be appropriate to move outside the category range”.

Perhaps more importantly, the Court then went on to state that irrespective of this wording, no one committing such offences should think that multiple aspects of his/her wrongdoing, however grave, will receive no punishment because they all fall within one category of harm. Despite this element of hyperbole, the Court of Appeal rightly drew attention to multiple authorities that stress that it is not sensible to construe the Guidelines as if they are a statute. Whilst not new, it’s a helpful reminder that sentencing is still a matter of judgement and discretion, not simply a tick box exercise.

Misleading environmental claims

On 2 November the CMA (Competition and Markets Authority) announced that it was commencing an investigation to better understand how consumer protection legislation can be used to tackle false or misleading environmental claims that affect consumers.

The end result of the investigation appears to be a broad one, both “to produce guidance for businesses on how they can be transparent in the way that they market goods and services in relation to any claims made about environmental impact”, as well as to provide advice to government.

Most regulation about claims as to the environmental benefits of particular goods and services are enforced by way either of trading standards regulations (see the Consumer Protection from Unfair Trading Regulations 2008) or by means of the broadcasting or non-broadcasting codes of the Advertising Standards Authority.

Defra provided relevant guidance in its Green Claims Guidance dated February 2011.

The CMA has an important role overseeing consumer protection issues, and it should be noted that on 5 May 2020 the EU’s Consumer Protection Co-Operation Regulation ((EU) 2017/2394) was given effect by means of the Consumer Protection (Enforcement) (Amendment etc.) (EU Exit) Regulations 2019/203, giving the CMA enforcement powers in respect of digital representations made on-line (by amendments to the Enterprise Act 2002).

The CMA welcomes responses from consumers and business to: misleadinggreenclaims@cma.gov.uk.

https://www.gov.uk/government/news/cma-to-examine-if-eco-friendly-claims-are-misleading announces: “the CMA intends to publish guidance for businesses next Summer to help them support the transition to a low carbon economy without misleading consumers. At this early stage, the CMA has not reached a view as to whether or not consumer protection law has been broken. However, if it finds evidence that businesses are misleading consumers, then it will take appropriate action.”

Government announces its Ten Point Plan for a Green Industrial Revolution

At 22:30 on Tuesday this week, the Government announced its Ten Point Plan for a Green Industrial Revolution. It is described as an ambitious (when are they not?) plan providing a blueprint covering clean energy, transport, nature and innovative technologies that will allow ‘the UK to forge ahead with eradicating its contribution to climate change by 2050’.

It is hoped by the Government that the plan will create up to 250,000 highly-skilled green jobs in the UK (by the mobilisation of £12 billion in government investment), and three times as much private sector investment, by 2030.

The Ten Points are:

  1. Offshore wind: quadrupling our current output to 40GW by 2030, supporting 60,000 jobs;
  2. Hydrogen: 5GW of low carbon hydrogen production by 2030;
  3. Nuclear: development of small and advanced reactors, supporting 10,000 jobs;
  4. Electric vehicles: transforming our national infrastructure to better support electric vehicles [curiously the announcement does not mention the ban on petrol and diesel cars having been brought forwards];
  5. Public transport: making cycling and walking more attractive ways to travel and investing in zero-emission public transport;
  6. Jet Zero and greener maritime: support for research projects for zero-emission plans and ships;
  7. Homes and public buildings: making our homes, schools and hospitals greener, warmer and more efficient, creating 50,000 jobs and installing 600,000 heat pumps every year by 2028;
  8. Carbon capture: capturing 10MT of carbon dioxide by 2030;
  9. Nature: protecting and restoring our natural environment, planting 30,000 hectares of trees every year; and
  10. Innovation and finance: making the City of London the global centre of green finance.

As with many of the Government’s recent announcements in respect of the environment (the 25 Year Plan, the Green Homes Grant Scheme, etc.) the Ten Point Plan is another step in the right direction in terms of addressing climate change and meeting our reduction targets, but that is, sadly, all it is: another step in the right direction. It is not, yet, a blueprint for achieving Net Zero.

The announcement may be found here. If you were curious as to why the Plan was announced at 22:30 on a November Tuesday, it is because it preceded a press conference on the Wednesday. The press conference was nowhere near Four Seasons Total Landscaping (in case you missed it, see 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, Gordon Wignall and Christopher Badger consider the NCC’s Final Response to the 25 Year Environment Plan Progress Report, the legal arrangements between water companies and local authorities for payment for the supply of mains water to tenants, and funding shortages – the effect on the Environment Agency, inspection, enforcement, end-of-waste and the new Office for Environmental Protection.

Funding shortages – the effect on inspection, enforcement, end-of-waste and the new Office for Environmental Protection

The Defra press office maintains a blog used to respond to media stories (“Defra in the media”). 

This week, this Gov.uk blog has been busy (26 October, The Times – critical of the Environment Agency’s prosecution of regulatory breaches, the decline in site inspections, the alleged failure to tackle farming-related river pollution incidents involving slurry and fertiliser; 28 October, Edinburgh Evening News (Friends of the Earth Scotland) – fears over environmental standards in future trade deals; 28 October, BBC – questions over the independence of the new Office for Environmental Protection; and 29 October, The Times – alleged failures adequately to monitor and regulate unconsented sewage overspills into the Thames at Mogden).

Inevitably, even absent current circumstances, a key issue is funding. 

In the 26 October blog, the EA Chair herself was quoted as saying: “ultimately we will get the environment we pay for. A core part of that is funding the Environment Agency properly. The government has an opportunity to do that in this year’s spending review. We hope it will.”

A frequent casualty of retrenchment by the EA has been the Definition of Waste panel and related services (such as the demise of the Wrap Quality Process assessments and their accompanying Regulatory Position Statements, which had the effect of protecting operators from the risk of enforcement). 

With effect from 17 September 2020, it was announced that the Definition of Waste panel will not be offering any opinion as to whether a product has achieved end-of-waste until 1 January “at the earliest”. 

This will be hard on operators in the circular economy, especially since they are likely to be promoting new types of products. The closure of the panel leaves them more at risk of the discretionary decisions of local officers, who will have to make judgments as to the boundaries of the Environmental Permitting Regulations, including operations which are exempt, excluded, or which fall within the scope of current Regulatory Position Statements.

The closure of the panel may also amount to lost opportunities, since after the end of the implementation period, there may also be some flexibility outside the EU to fashion an updated definition as to what constitutes end-of-waste.

The devolved governments offer no better prospect than in England. No end of internal scientific data and legal reassurance will provide the reassurance which a regulator might provide (which has itself been guarded in scope).

Defra’s response to questions about the independence and vigour of the Office for Environmental Protection, which is intended in practical terms to make up the vacuum left by the absence of the EU Commission, includes the promise that “the OEP’s budget will be ring-fenced for each spending review period” (Defra media blog, 28 October).

The spending review in place from 2019 was for one year (2019-2020) and the next spending round will also only be for one year (2020-2021).  This is another area in which the words of the Chair of the EA will ring true: “ultimately we will get the environment we pay for”.

NCC’s Final Response to the 25 Year Environment Plan Progress Report

On 26 October, the Natural Capital Committee (‘NCC’) published its ‘Final Response to the 25 Year Environment Plan Progress Report’.

Previously the NCC has been fairly scathing of the Government’s ‘progress’, citing a lack of appropriate metrics or baseline to be able to measure changes in the environment, a selective approach to results that risked ignoring overall declines in the environment and highlighting the lack of strategic approach by Government to achieve coherent improvements.

This Final Report conducts its own assessment of the state of natural capital. It concludes, starkly, that the Government is not on course to achieve its objective to improve the environment within a generation. Using a red, amber, green analysis, none of the seven natural assets were rated green. The report is 486 pages long, so here is our best effort at summarising the conclusions:

Atmosphere – Amber.

While there has been an overall reduction in pollution levels in recent years, in some urban areas levels are still resulting in significant health impacts. One key recommendation is for clearer air quality targets to be set out in the Environment Bill.

Freshwater – Red.

Poor progress. No surface water bodies met the criteria for ‘good’ chemical status in 2019 and only 14% of rivers met the ‘good’ ecological status criteria. It is estimated that 22% of water put through the supply system is lost through leaks.

Marine – Red.

There is very limited data on marine assets. The Government needs to urgently address data gaps in order to assess the extent and condition of marine natural capital assets. Trends for some physical and chemical parameters since 2011 indicate drastic climate-driven change in the marine environment.

Soils – Red.

Soil degradation through erosion, intensive farming and development is estimated to incur losses between £0.9 and £1.4 billion per year for England and Wales, mainly linked to the loss of organic content of soils at 47% of the total cost. It is estimated it takes 100 years to form 1cm of topsoil. The NCC calls for an urgent national survey to provide data on the extent and condition of soils.

Biota – Red.

Species which are critical for ecosystem function such as pollinators show dramatic declines between 1980 and 2016. For example records from 365 pollinating bee and hoverfly species across a number of 1km grid squares in the UK indicate a 30% decline in occurrence between 1980 and 2016.

Land – Red.

The Biodiversity 2020 Strategy target is for 90% of priority habitats to be in a ‘favourable’ or ‘unfavourable recovering’ condition. However, the figure has plateaued for the last 4 years at around the 70% mark. The Government will not hit its target and there should be a clear plan on how to deliver on existing targets.

Minerals and resources – Amber.

Household recycling rates have plateaued since 2013 at around 44%. Targets need to be set to achieve higher recycling rates. Active illegal waste sites increased from 556 in 2013/14 to 685 in 2018/19. There were 1,070,000 fly tipping incidents in 2018/19.

Council finds itself piggy-in-the-middle for water charges

Last December in Update 121 we reviewed the decision of Morgan J. in Royal Borough of Kingston-upon-Thames v Moss [2019] EWHC 3261 (Ch) concerning the legal result of arrangements between Thames Water and Kingston for bulk payment for the supply of mains water to the Borough’s tenants. In short, the unintended consequence was that, by operation of the provisions of the Water Resale Orders 2001 and 2006, the Borough had to pass on to its tenants the benefit of some of the allowances and commissions negotiated between it and Thames Water. The Borough’s appeal to the Court of Appeal has just been dismissed: Royal Borough of Kingston-upon-Thames v Moss [2020] Civ 1381. As Lewison LJ put it, whilst the Borough as a local authority had statutory power to agree with an undertaker to act as the undertaker’s agent for the collection and recovery of water and sewerage service charges from individual occupiers (in which case it could have charged and recovered the full charges and retained any discounts for itself), the question was whether that is what it had in fact done. The Court of Appeal held that it hadn’t. It had made itself the supplier by resale to its individual tenants.

On appeal the Borough tried to rely upon the nature of its pre-privatisation arrangements with the Thames Water Authority as an aid to interpretation of its later agreements with Thames Water. That was held to go well beyond acceptable bounds of contractual interpretation. The Court of Appeal was particularly struck by the fact that the post-privatisation agreements with Thames Water called the Borough “the Customer”, who was to “pay for the Services”, which expressions were found to mean what they said.

The ramifications of the controls imposed by the Water Resale Order upon the multifarious arrangements that can exist in situations of multiple occupation are by no means confined to the context of tenants of local authorities. The outcome of this litigation will fix the proper interpretation of many other arrangements, quite possibly with equally unintended results and economic consequences.

The judgment of Lewison LJ (with whom the other two judges simply agreed) is worth reading just for the pleasure of it. It is a masterpiece of clarity and a masterclass in contractual interpretation.

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