Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Mark Davies consider the Supreme Court decision on the third runway at Heathrow, the outcome of our 2020 predictions and some pertinent musical suggestions for an environmental sing-a-long this festive season.

R oao Friends of the Earth Ltd & others v Heathrow Airport Ltd [2020] UKSC 52

The decision of the Supreme Court to overrule the Court of Appeal on the third runway at Heathrow has principally turned on section 5(8) of the Planning Act 2008 which requires that the reasons for a policy, set out in a National Policy Statement such as the ‘Airports National Policy Statement’ (‘ANPS’), should include an explanation of how the policy takes account of Government policy relating to the mitigation of, and adaptation to, climate change.

The Supreme Court disagreed with the Court of Appeal on the meaning of the words “Government policy”. These are not ordinary words but require a narrow interpretation. A policy could only be a policy if the doctrine of legitimate expectation could be applied to it: clear, unambiguous and devoid of relevant qualification. The fact that the UK had ratified the Paris Agreement was not of itself a statement of Government policy. Comments by Ministers were not government policy. How to adapt to be able to contribute to the global goals of the Paris Agreement was still in a process of development – an “inchoate and developing policy and not an established policy to which section 5(8) refers”.

The Court of Appeal had appeared to hold that national support for an international agreement could be considered domestic policy. But interestingly, even before the case reached the Supreme Court, that view had already been distinguished by the Court of Appeal in R (on the application of Packham) v Secretary of State for Transport [2020] EWCA Civ 1004 which held that the Government’s commitment to the Paris Agreement did not necessarily have the status of ‘Government policy’ but simply that the unincorporated international obligation enshrined in the Paris Agreement was an obviously material consideration that had not been considered.

This latter point has been eroded in the Supreme Court’s decision. It was held that the Secretary of State had taken the Paris Agreement into account. The question for the Supreme Court was whether he should have given it more weight. The Court of Appeal had been  wrong to hold that the Secretary of State had not asked himself the question whether he should take into account Paris – he “certainly did so” and had concluded that it would be wrong to go beyond the extent to which Paris was reflected in the Climate Change Act 2008. It wasn’t necessary to consider what might be the status of an unincorporated international obligation.

The Heathrow judgment therefore finds itself somewhat constrained. Paris simply provides an overarching direction of travel, in contrast to whatever are the stated policies of the day.

Human rights law (exemplified in the decision of Urgenda) will be relevant at the  Development Consent Order stage, where the effect on the lives and family life of those affected by climate change will have to be taken into account. There is an interesting contrast between an emboldened European Court of Human Rights, of course completely unaffected by Brexit, and a UK Government that has very little by way of concrete policies to meet its net zero commitments, save for a need for some major infrastructure projects.

Our January predictions

Broadly speaking, for once our predictions were reasonably accurate (link here). We stated that the Government’s commitment to a ‘level playing field’ would not amount to equivalence with EU standards and indeed, this appears to have been a major sticking point in the negotiations. We were wrong to predict that the Court of Appeal would reject the appeal by Plan B and Friends of the Earth over Heathrow’s third runway but ultimately proved right by the Supreme Court. Producer responsibility has not yet proved itself to be a major policy driver but watch this space! We look forward to making a fresh set of predictions in the New Year.

And finally…

Something In The Air

(Thunderclap Newman, 1969)

For the last three years we’ve provided our readers with some pertinent songs to sing around the Christmas piano. In 2017 it was Sewers in Song; in 2018 Water Pollution in Song; in 2019 Noise Nuisance in Song. This year we have chosen Air Quality.

“All I Need Is The Air That I Breathe” sang the Hollies in 1974. The pedant (especially if a lawyer, or Mr. Logic from Viz comic) would point out that this is not strictly correct: air is a necessary but not of itself sufficient requirement to sustain life. A second pedant would retort that the song does indeed go on to add “And To Love You”; the first would reply that this doesn’t quite cover the ground either. The true allegorical strength of the song turns on the proposition that, in contrast to almost all other needs, our need for air is immediate and constant. It’s a safe bet that if you’re reading this now, you’re consuming air as you do so. It is perhaps of note that the songwriters were Albert Hammond and Mike Hazlewood, who also wrote “Down By The River” which featured in our piece on water pollution. So they were “woke” to environmental issues and there may be a sotto voce message in there.*

Fresh air is the theme of “Country Air” by another band which has featured previously, The Beach Boys – we mentioned their “Don’t Go Near The Water” in 2018. Come to think of it, it’s odd, given their surfing roots, that they never touched more explicitly upon the subject of sewage in the sea but maybe they just never got barrelled in Cornwall, or at Whitburn or Seaham on the North East Coast (see Commission v United Kingdom Case C-301/10) – but we digress.

There are few songs, and none of great note that we can think of, which make poor air quality their central theme. One which does is “The Air We Breathe” by Nick Walker, a somewhat flippant take on the subject with a chorus which begins “The air we breathe can sometimes be so yucky” but nevertheless does point the finger directly at exhaust fumes and industrial pollution and mentions the air quality index (so it’s an index finger) (a Christmas cracker of a wordplay there). Sadly, it’s only clocked up 26 views on YouTube since May 2019 (including ours) so why not give it a Christmas boost. “Air” by Talking Heads has probably earned a bit more in royalties for David Byrne, but it was never destined to be an anthem for environmental activists either.

A really old and interesting poem/song with a sideswipe at air quality is “Jerusalem” by William Blake (c. 1808, music by Parry 1916) and its contrasting of “clouded hills” and “dark Satanic Mills” with “England’s green and pleasant land”. It seems that old William was indeed a bit of a pioneering environmental activist and an extremely far-sighted one at that. Have a look at his poem “London” (c.1794): “Every blackning Church appalls”. It’s a pity that no-one ever put that one to music.**

More famous numbers allude almost incidentally to both causes and symptoms. The “pea soupers” caused by the burning of soft coal must surely have inspired both Gershwin’s “A Foggy Day in London Town” (1928) and Lindisfarne’s proud claim to ownership of “The Fog On The Tyne” (1974). The production of coal smoke in cities (recognised to be the cause of ill-health since, it seems, the thirteenth century) and the resulting smogs have been more or less eliminated in the UK by the Clean Air Acts, to the extent that many of our readers will have no personal knowledge or recollection of them. Sadly, and tragically, they have been replaced by no less potent threats from oxides of nitrogen and particulates. “LA is a great big freeway, put a hundred down and buy a car” sang Dionne Warwick in “Do You Know the Way to San Jose” (1968), noting also that “all the stars that never were are parking cars and pumping gas”, which pretty much explains the yellow pall which still hangs to this day over that “uptight city in the smog” (Neil Young, “LA”). Check out also Celine Dion’s “Skies of LA”, which uses this as an allegorical symptom of wider malaise in society.

Finally, revisit in this context two more songs which we’ve mentioned before, “Pollution” by Tom Lehrer and “What Have They Done To The Rain?” by Malvina Reynolds (Marianne Faithfull’s version recommended). Like all of Ms Reynolds’ catalogue, it’s very singable as you gather around the open fire, burning Ecoal 50 smokeless fuel made from up to 50% crushed olive stones (the rest Welsh anthracite) and emitting up to 40% less CO2 than house coal (other brands are also available).

Merry Christmas!

 * Song nerds (especially if lawyers) will also be fascinated to learn (if they didn’t already know) that “The Air That I Breathe” was (at least) twice allegedly plagiarised, first by Radiohead (“Creep”) and secondly by Lana Del Rey (“Get Free”). It would seem that Hammond and Hazlewood have established exclusive rights to the chord progression G-B-C-Cm (try it on the Christmas piano, but preferably not for compositional purposes). But we digress.

** Now’s your chance; just don’t use a G-B-C-Cm chord sequence.

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, Christopher Badger and Mark Davies consider the fatal accident at Avonmouth, publication of the UK’s Sixth Carbon Budget and consultation on the Environment Agency’s charges for a UK Emissions Trading Scheme.

Fatal Accident at Avonmouth

The awful explosion at the Avonmouth Sewage Treatment Works last week is a stark reminder that, in more than just the most obvious respects, sewage is not a benign substance. The chemistry of sewage is extremely complex. It produces numerous gases, including methane and hydrogen sulphide, particularly in the course of anaerobic digestion. Both are highly flammable (and poisonous). There is also the risk that other flammable compounds are introduced into the system, for example by the use of main sewers to dispose of household or industrial chemicals, particularly in unlawful circumstances. Any confinement of sewage can cause dangerous concentrations of the volatile gases present. Indeed in Victorian and Edwardian times sewer gas was used, principally in the North East of England, as a convenient and efficient means of illumination of the streets through which sewers flowed, essentially as a virtuous by-product of the harmless disposal of the gases. Some lamps which remain in Sheffield have recently been restored and no fewer than 10 in Whitley Bay, Tyne & Wear appear on the “local list” supplementary planning document of North Tyneside Council as structures of local architectural and historic interest.

Despite bad press over its propensity for causing environmental pollution, at the heart of the sewerage industry lies a continuous, never-ending, absolutely necessary, usually thankless and, at times, very dangerous task.

UK’s Sixth Carbon Budget Published

On 9 December the Committee on Climate Change (“the CCC”) published the UK’s Sixth Carbon Budget to cover the period 2033-2037. However, before the Budget was published, the CCC wrote to the Secretary of State for BEIS (at his invitation) sharing their recommendations ahead of publication.

The Budget contains one recommendation which the remainder of the Budget is aimed towards achieving. That recommendation is that:

“…the UK commits to reduce territorial emissions by at least 68% from 1990 to 2030, as part of the UK’s national determined contribution to the UN process [under the Paris Agreement].”

This is a big recommendation for a number of reasons. Firstly, for context, the existing EU ambition is for a 40% reduction by 2030 against a 1990 basis, whilst an increase to 55% is being considered (note that the EU target is an aggregate one, so some countries have a higher target than 55%). A commitment to a 68% reduction (spoiler alert: Boris Johnson has already publicly announced it) would therefore represent an impressive increase (some, in Government, would no doubt say it represents a ‘levelling-up’, but this is not a computer game), in terms of the UK’s role in combating climate change.

Secondly, if it is made a binding target, there may be scope for cases to be litigated against it. Whilst no policy is ever going to be truly binary, i.e. Policy X on building roads, for example, is contrary to the 68% reduction target, having the target will likely swing the pendulum further towards policies having to be greener going forwards so that the target is met.

The 68% target, as the letter and Budget make clear, also excludes the UK’s emissions from international aviation and shipping (as these are excluded from the underlying UN Convention), but the recommendation of the CCC is that the UK’s nationally determined contribution should include ‘clear commitments to act on emissions from aviation and shipping, including both long-term and interim targets’.

The Budget itself also includes a ‘Methodology Report’, a ‘Policy Report’, the supporting charts and data and a public Call for Evidence on new research projects, three new expert advisory groups as well as ‘deep dives’ into the roles of local authorities and businesses.

In the run up to COP next year (which of course, the Secretary of State for BEIS, Alok Sharma MP is also president of), these commitments, if followed through between now and then with meaningful policies, do put the UK on the front foot in terms of leading by example.

The letter from the CCC may be found here

The Budget may be found here

Environment Agency consults on its charges for a UK Emissions Trading Scheme

On 7 December 2020 the Environment Agency published a consultation on its charges for the duties that the Environment Agency will have to perform from 1 January 2021 running a UK Emissions trading scheme.

The Government has not yet confirmed if a UK Emissions trading scheme or a carbon emissions tax will operate from 1 January 2021. The Environment Agency has stated that the consultation is necessary for the operation of either policy as the regulatory activity would be the same across both systems.

In the UK there are about 1000 operators of installations currently participating in the EU ETS, of which 666 are in England and would be regulated by the EA from 1 January 2021 under a UK ETS. The Environment Agency does not believe that there will be any customers who are significantly affected by the proposed charging scheme for a UK ETS. There is an existing regime with existing customers who are currently paying charges. It is stated that most charge payers will benefit from the UK ETS and will see reductions in their charges.

The EA has also proposed increased fees relating to managing installation permits. Charges have not changed since 2010 and no longer reflect the true cost of these activities. As a percentage change the changes could be considered significant. For example, it is proposed that the cost of transferring a permit will rise from £430 to £1340.

It is also proposed that charges will be updated annually in line with inflation, using the Consumer Price Index.

The new charges will take effect in England from April 2021. The consultation will close on 29 January 2021.

The consultation 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, Gordon Wignall, Christopher Badger and Mark Davies consider the fast-tracking of a climate case by the EctHR, challenges to Environment Agency decisions post-2020 and an update on the Friends of the Earth and Shell litigation.

ECtHR fast-tracks youth climate case

On 30 November the European Court of Human Rights announced that it was fast-tracking a climate dispute filed by six youth-applicants from Portugal. The Court has also required the 33 defendant countries (made up of the EU27 plus Norway, Russia, Switzerland, the UK, Turkey and Ukraine) to respond to the complaint by the end of February 2021.

The complaint alleges:

  1. That none of the defendant countries have adopted adequate legislative or administrative measures to regulate the export of fossil fuels to keep global warming to 1.5°C;
  2. That none of the defendant countries adopted adequate legislative or administrative measures to mandate the off-setting of emission released through the production of goods that these countries import; and
  3. That none of the defendant countries have adopted adequate legislative or administrative measures that restrict the extent to which the entities within their jurisdiction may contribute to the release of emissions overseas.

The applicants complain that these failures infringe the right to life (Article 2), the right to a healthy protected environment (Article 8) and that, because of their age, the applicants are disproportionately affected by the failures of the 33 states.

One issue that the Court will have to tackle is how to make a determination on the adequacy of national measures in the context of a global problem. The Paris Agreement did identify the individual ‘fair share’ of nation states and consequently, whilst it may be predicted that the world will miss the 1.5°C target, it is harder to apportion blame to any group of nation states. In the event that it is found that there has been a breach of the European Convention, finding the appropriate remedy for the individual defendants will not be an easy task.

Nevertheless, the applicants will be buoyed by the Urgenda case that required the Dutch government to reduce its emissions by 25% relative to 1990 levels by 2020 and the fact that the case has been prioritised by the European Court. Very few cases are fast-tracked.

Challenges to Environment Agency decisions post-2020

On the one hand, Safety-Kleen UK Ltd v The Environment Agency [2020] EWHC 3147 is an end of waste judgment of no real interest save that it is an articulate reminder of the key principles. It is also a present to the insomniac.

On the other hand, however, it is of very considerable interest by reason of the ramifications of a concession necessarily (and very clearly) made by the Environment Agency.

It is worth setting out the material paragraph from the judge’s decision in full:

6.  Although these are judicial review proceedings, they are unusual in this respect. The parties agreed that the question for the Court was not whether the decision of the Environment Agency was rational, or whether some material consideration had been ignored or an immaterial consideration had been taken into account. Nor was the question whether the EA had directed itself correctly on the meaning of the term “waste”, and had reached a view as to its application which was reasonably open to it. It was instead for the Court to decide whether, in all the circumstances of the case, the used kerosene was “waste” when collected by Safety-Kleen from its customers, or “waste” only after it had been re-used in the cleaning of the drums at the depot. If the Environment Agency decision was right, it was lawful; and if wrong, it was unlawful. This meant that the Court, in reaching its own decision, could also consider material which was not before the Environment Agency when it made its decision.

The question now is whether all the acres of print which have gone into debating the inadequacies of a deferential judicial review procedure can now be put on one side. Critics have long maintained that the Courts of England and Wales should adopt an intensive merits-based review procedure, like that of the General Court.

This paragraph will be a useful starter in requiring the Courts to examine the merits of EA decisions in those many areas where there should be an appeal procedure but there is not.   An example is a decision to remove the status of an exempt waste facility. It also follows that claimants should feel less reluctant in applying for interim relief.

For proponents of a specialist environmental court, their dreams must also come a step closer. The dregs of the judicial review process were entirely inappropriate to the task faced by the Court. There was no application to cross-examine with witness (understandably), and the judge spent his time shuffling the evidence around to try and come up with some reconciliation of competing statements.

It seems that in this case the claimants had their eye on £2m of back-payments for waste management expenses. One might imagine that they were left somewhat sour by the want of a specialist tribunal to get to grips with the scientific issues.

Friends of the Earth and Shell litigation: Update

In May last year we covered (link here) the delivery of a summons to Shell’s headquarters in the Netherlands by Friends of the Earth Netherlands (“FOEN”). This week, the matter is in court in the Hague for four days of public hearings.

In a claim similar to one being pursued against ExxonMobil in the US, the FOEN case against Shell will in part argue that Shell knew, and has known for decades, of the damage its business was inflicting on the environment and was acting unlawfully by continuing to expand its fossil fuel operations.

The claim proceeds on the basis that Shell is breaking article 6:162 of the Dutch civil code, as well as breaching Articles 2 and 8 of the European Convention on Human Rights (the same articles as alleged to have been breached in the youth-applicant case discussed above) by causing a danger when alternative measures were available.

The case calls for Shell to reduce its CO2 emissions to at least 45% by 2030 against a 2010 baseline, and to net zero by 2050. The company’s own relative targets are currently a 30% reduction by 2035 and 65% by 2050, although it has stated an ambition to be a net zero emissions energy business by 2050 or sooner.

Interestingly, FOEN will need to prove that an alternative business model is available, and so are expected to point towards the success of DONG’s transition from a national oil and gas company generating one third of Denmark’s CO2 to Ørsted, a renewable energy powerhouse responsible for around 30% of the global offshore wind market.

Although the case is fundamentally a different one, given the success the same group achieved in the Urgenda case (upheld in the Dutch Supreme Court last year), this will certainly be one to watch carefully.

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