Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Nicholas Ostrowski and Mark Davies consider disputes over riparian rights and related land drainage issues, more public interest litigation from environmental groups and charities and the news that the US will re-join the Paris Agreement.

Riparian rights revisited
by “Chippy Northerner”

The rich list of characters created by John Mortimer QC in his “Rumpole of the Bailey” books includes Mr. Justice Oliver Oliphant, a High Court Judge of northern origins whose frequent invocation in court of “northern common sense” as the most reliable of touchstones was despised by Rumpole and thus, one supposes, by his creator too. One might even feel, on occasions, that this was reflective of a wider incidence of similar feeling at the less diverse Bar of yesteryear, and that this explains, amongst other things, why perfectly respectable decisions by judges in cases heard outside London (even including those of judges who usually did sit in London) were resolutely ignored lest infected with the same quality (perceived, presumably, as synonymous with “lack of intellectual rigour”).

A major step in the reform of this attitude has been the creation of the Business and Property Courts throughout England and Wales. Over the past three years these have generated a steady stream from the regions of valuable reported contributions to case law, including in the environmental field, the latest being the decision of Judge Mark Cawson QC sitting in the B&PC at Manchester in Bernel Ltd v Canal and River Trust [2021] EWHC 16 (Ch). It is a succinct and clear exposition of the law applicable to disputes over riparian rights and related land drainage issues of a kind which seem to be proliferating as developers struggle to create the sustainable drainage systems required of them by planning consents.

As we like to stress, these blog items are not case reports. So suffice it to say that if you have a case whose conduct would be benefited by insights into such issues as the methods of determination of whether a watercourse is natural or artificial, the degree of significance of a prior Environment Agency determination on that issue, the extent to which enjoyment of riparian rights can extend to artificially modified discharges, and the extent to which the benefit of a prescriptive easement might survive even radical change in the use of the dominant tenement, this is a go-to case.

Whilst on the facts neither riparian nor prescriptive rights were held to exist, the judge held obiter that neither of them would have been defeated by the mere fact of artificial modifications to the drainage into the relevant channel, because the new system was specifically designed to ensure that maximum rates of flow did not exceed preceding levels. This was so notwithstanding that overall quantities of flow over any given period of time would have been augmented i.e. the average flow would have been significantly higher than before. So far as the judgment reveals, there was no evidence that the overall increases in total volume would themselves have caused problems to the receiving watercourse (such as by increase in scour or cost of maintenance). Were that so, the position might have been different.

Tweets for tweets

There have, of course, been environmental organisations and charities bringing litigation to protect the environment for many years but a conspicuous development over the last few years seems to be a greater appetite by environmental groups and charities to bring public interest litigation. In the last six weeks (including the Christmas vacation) the courts have handed down no fewer than four judgments in such cases brought by ClientEarth ([2021] EWCA Civ 43), Wildjustice ([2021] EWHC (Admin)) and Friends of the Earth ([2020] UKSC 52, [2021] EWCA Civ 13). If one looks back over the whole of 2020 one can add Plan B Earth, Greenpeace and numerous local environmental groups and concerned individuals to the list of those who have brought claims before the courts.

The government would no doubt suggest that this is evidence that the Aarhus costs protection regime set out in CPR 45.41 – 45.44 is working and that the system should not be disturbed. That is debatable. A better answer seems to be that many of these environmental organisations have cottoned on to how to harness the power of social media to launch quick, effective and powerful publicity drives to raise awareness and cash to fund litigation.

Wildjustice is a good example of just how powerful combination of celebrity, social media and the environment can be. Set up by Ruth Tingay, Mark Avery and Chris Packham only in 2019 it deploys its social media savvy to great effect in seeking funding from the public to fund targeted litigation protecting the environment and claims, for instance, to have raised £48,500 in three days to bring a claim protecting badgers (see here). The model plainly works as they have achieved significant legal victories such as persuading DEFRA in October 2020 to concede a judicial review and reconsider the way in which pheasants and partridges are managed (see here).

Wildjustice’s latest foray before the courts in R (Wildjustice) v Natural Resources Wales [2021] EWHC 35 (Admin) was less successful in that its challenge to NRW’s licensing system for the shooting of wild birds was rejected by the High Court. Nevertheless Wildjustice claim, with some justification, that the case was a success for them as the court and NRW clarified a number of issues relating to the circumstances in which wild birds can be lawfully killed.

US to re-join the Paris Agreement

The Paris Agreement entered into force on 4 November 2016. Four days later, Donald J Trump was elected President of the United States. On 1 June 2017, he announced that the US would be withdrawing from the Agreement, however, pursuant to Article 28, no signatory may withdraw within three years of the date on which the Agreement came into force and therefore the notification was sent to the United Nations on 4 November 2019. The withdrawal process under the terms of the Agreement takes a further 12 months, and thus it was not until 4 November 2020 that the US officially withdrew from the Agreement.

Fortunately for proponents of the Agreement, on 3 November 2020 the US once again went to the polls and voted as to who should be the country’s President. Despite protestations to the contrary from certain quarters, Joe Biden won that election having already evinced his intention to re-join the Agreement if he was victorious. Thus, just hours after his inauguration on 20 January 2021, Biden signed an executive order indicating that the US would be re-joining after a 30-day notice period.

After the whirlwind of the last four years, the US will eventually have been out of the Agreement for slightly over 100 days, which seems like rather a waste of everyone’s time.

Waste of time or not, what happens next, and what form America’s new National Determined Contribution (“NDC”) takes, will be crucial. The NDC the US sent to the United Nations Framework Convention on Climate Change under the terms of the Agreement when it first joined was for, “…economy-wide emissions reductions of 80% or more by 2050.” But of course, since that NDC was submitted, the Intergovernmental Panel on Climate Change published (on 8 October 2018) its ‘Special Report on Global Warming of 1.5 degrees C’.

The Report, as readers will no doubt be aware, stated that for the target of 1.5 degrees C warming to be met (avoiding catastrophic climate change, it is important to recognise) global net human-caused emissions of CO2 would need to fall by 45% by 2030 against a 2010 baseline, reaching net zero around 2050.

So, the takeaway from all of this? The US has lost four years in the fight against climate change, and the World’s efforts have been dented as a result. If President Biden is serious about the US once again taking to the centre stage in responding to climate change, its new NDC is going to need to be far more robust than its original: net zero by 2050 at the very least. If America’s NDC is that ambitious, or indeed more ambitious, then, for the first time in a while, there would appear to be a little more light at the end of the tunnel.

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 Nicholas Ostrowski consider some environmental predictions for 2021, whether an Environmental Impact Assessment should consider ‘indirect’ emissions and a further case dealing with the complexities of assessing bathing water quality.

Environmental Law Predictions for 2021

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

The Office for Environmental Protection

At the time of writing, the progress of the Environment Bill has been delayed. Amendments have been proposed and accepted that arguably will have the effect of providing the Secretary of State with the power to interfere with the OEP’s enforcement policy and weakening the potential of the OEP to act independently and promote environmental protection.

In our view the recent suggestions that the independence of the OEP has been fatally compromised is overstated, but that doesn’t mean that it will be plain sailing this year. We predict:

  • In order to ensure that the OEP publicly retains its independence, the new watchdog will have to announce on its formalisation that guidance issued by the Government on its enforcement strategy is simply not binding but only a factor that should be taken into account, albeit that sound reasons will be required to depart from the guidance.
  • Proportionality will be the key issue for the OEP. Under the prospective legislation, a fair balance has to be struck between the interests of the environment and other competing interests. This will not be promotion of the environment at all costs.
  • In its infancy, the OEP will struggle to be more than a policeman to the Environment Agency. It will be difficult to demonstrate that public bodies have failed to take proper account of environmental law when exercising their functions. In contrast, given that the Environment Agency’s entire remit concerns environmental protection, it is the Environment Agency that is naturally much more likely to feel the pointy end of the OEP’s stick, at least in the early days.

Export of waste abroad

Following Brexit and the lack of recycling capacity in the UK, the export of waste abroad will be high on the agenda for both businesses and the Environment Agency this year. Recent changes to the Basel Convention have restricted the export of plastic waste which is likely to result in greater scrutiny being applied to exports. Furthermore, the Environment Agency’s recent success against Biffa Waste Services Ltd and the headlines generated by the likes of Malaysia rejecting thousands of tonnes of waste back to their countries of origin will keep this issue firmly in the limelight.

One key issue will be whether or not those regulating the export of waste abroad have sufficient resources to properly tackle the issue or whether enforcement action will be limited.

However, we predict that the movement of waste abroad will be one of the dominant environmental issues of 2021. There has already been a warning of a glut of plastic stockpiling in the UK. Look out for waste exports making further headlines in 2021.

Lawyers forced to rethink their carbon footprint

It remains a fact that many businesses pollute very little themselves but do much to contribute to the polluting activities of others. Enabling high-emissions activities is one area that has seen very little regulation to date. But in light of the UK’s commitment to net zero and the increasing interest in indirect emissions, it is in our view inevitable this is an area that will come under increasing scrutiny.

We therefore predict that professional service firms, such as lawyers, will start more seriously taking into account their indirect emissions as a means of demonstrating their green credentials. Although we don’t predict that regulatory control in this area will be introduced this year, social and green pressures will ensure that indirect emissions will be one of the key green issues of 2021.

Should an Environmental Impact Assessment consider ‘indirect’ emissions?

In the recent case of R (Sarah Finch) v Surrey County Council [2020] EWHC 3559 the Planning Court (Holgate J) considered the argument that an Environmental Impact Assessment prepared for the development of four new oil wells in Surrey was defective because the assessment only considered the greenhouse gas emissions from the operation of the development itself and not the so-called ‘indirect’ emissions of greenhouse gases from when the crude oil produced from the site was used elsewhere by, for instance, drivers of motor vehicles.

Surrey County Council granted planning permission for a company to expand its existing oil extraction site based on an Environmental Statement which described the likely significant effects of the development. The Environmental Statement interpreted the significant effects of the development as the releases of greenhouse gases from the operation of the wells and that the greenhouse gas impacts of the development itself would be negligible. The impact of burning the potential 3.3m tonnes of crude oil which may be extracted from the site over its proposed 20 year production period was not considered.

The Claimant’s argument that the EIA process should have considered the indirect emissions did not succeed. The court found against the Claimant (who was supported by Friends of the Earth) and concluded that (at [101]) ‘the true legal test is whether an effect on the environment is an effect of the development for which planning permission is sought’ and that (at [126]) the assessment of greenhouse gas emissions from the future combustion of refined oil products said to emanate from the development site ‘was, as a matter of law, incapable of falling within the scope of the EIA’.

This is an interesting time for the EIA process. In the summer the government announced that it would consult on proposed reforms to the EIA affecting how the system would work after the UK had left the EU but no such consultation has appeared. Changes to the EIA and Habitats Assessment system have been said by the government to be a significant benefit for the UK after Brexit and Boris Johnson was reported to have said that “Newt-counting delays are a massive drag on the prosperity of this country.” (https://www.bbc.co.uk/news/uk-politics-53276461). However, how the UK will use its new post-EU freedoms to affect the EIA and Habitats Assessment processes will play out in the coming months.

When bad marks don’t count (continued)

Last June, we published a blog item “When bad marks don’t count …” relating some of the complexities surrounding the assessment of bathing water quality and the use (and/or discounting) of samples taken during or following heavy rainfall events, which cause the overflowing of combined sewers into rivers and the sea and the introduction of sewage into bathing waters. We noted the tension between the need for a fair and realistic overall assessment and classification system on the one hand, and on the other the view (expressed to ENDS by an anonymous Environment Agency officer) that the “Abnormal Weather Exception” “knocks the very thing that causes the problem out of the equation”.

Light has now been shone on this very subject by the judgment of Thornton J. in Anglian Water Services Ltd v Environment Agency [2020] EWHC 3544 (Admin), in which Anglian Water successfully sought judicial review of decisions made by the Environment Agency in its application of the relevant legislation to the determination of the quality of bathing water at three beaches in Lincolnshire (mistakenly but not entirely inappositely described as “three breaches” in the judgment at paragraph 9).

The practical application and operation of the Bathing Water Regulations 2013 are, as in so many other environmental regulatory regimes (try WEEE, for example), so complex and arcane as to be fully known to and understood by only those who are daily involved in them. Such areas of human endeavour are inherently prone to “drift”, in that practical and sometimes ad hoc rules and guidance, often devised to fill gaps or to resolve difficulties or ambiguities in the underlying legislation, become the touchstones of decision-making rather than recourse to the actual words and requirements of the legislation (try COVID-19 for example). In such circumstances, the occasional judicial “legality check” can be beneficial.

This is a blog item not a case report, so we shan’t delve too deeply into the detail of the 30-page judgment in the case. The EA had applied its understanding of the concepts of “short term pollution” and “abnormal situation” in the Regulations in such a way as to result in the three beaches becoming downgraded from “excellent” to “good”. This was challenged by Anglian Water on three grounds (1) that the EA had wrongly claimed and exercised a discretion in the manner in which it discounted water samples taken during “short term pollution” events; (2) that the EA had wrongly used its own Pollution Risk Forecasting system; (3) that the EA had unlawfully failed to classify an event as an “abnormal situation”. The challenge failed on the first two grounds but succeeded on the third. Essentially, the EA had wrongly declined to treat exceptional rainfall as an “abnormal situation” justifying rejection of samples on the inadequate ground that it could not identify the source of the resulting pollution and had further wrongly concluded that as a matter of law it could not later revisit that decision when determining classification of the bathing water. The exact consequences were left to be worked out between the parties if possible.

The decision is of considerable significance to those whose work involves this regime; it is also of more general note as an interesting application, in the context of ground (2), of the principle in R (Mott) v Environment Agency [2018] 1 WLR 1022 that the court should be slow to review the decision of a specialist regulator in cases involving scientific, technical and predictive assessments.

Finally, one suspects that some of the activists in the field of bathing water quality might be amused/irritated by the euphemistic reference in EA documents and the judgment to heavy rainfall “mobilising faecal indicator organisms from the catchment to the sea”. This proposition could perhaps be shortened in common parlance to two words, the second of which is “happens”.

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