Environmental Law News

Posted on: 7 February 2022

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger, Natasha Hausdorff and William McBarnet consider the dangers of overstating environmental virtues in advertising, more on the OEP’s strategy and enforcement policy and Environment Agency changes to attendance requirements for technically competent managers.

Mairzy doats and dozy doats but Oatly Oats musty dwerds*

Poor old Oatly Oats. They simply engaged in a modest bit of green virtue-signalling in adverts in the press and on TV, Facebook and Twitter yet brought down the whole weight of the regulatory world upon their shoulders. It all seems a bit over-the-top for a few over-stated claims of the relative environmental virtues of the Oatly Barista Edition oat drink and British whole cow’s milk.

A few innocent and pithy remarks in adverts, such as “NEED HELP TALKING TO DAD ABOUT MILK?”, led to five heads of complaint to the Advertising Standards Authority, four of which were upheld. The eight page ruling of the ASA makes reference to:

  • the Food and Agriculture Organization of the United Nations report: “Tackling Climate Change Through Livestock – A global assessment of emissions and mitigation opportunities”
  • the UK Intergovernmental Panel on Climate Change assessment report: “Climate Change 2014 Mitigation of Climate Change”
  • an extract from a meta-analysis by Joseph Poore, a climate expert, published in Science;
  • a report from the Institute for Climate Economics: “Food policies and climate: a literature review”
  • the 2019 UK Greenhouse Gas Emissions, Final Figures report, published by the UK’s Department for Business, Energy & Industrial Strategy.

This learned analysis of the content and accuracy of the adverts, two of which were described as featuring “children questioning their dad’s decision to drink cow’s milk”, has the intellectual acuity of a judgment of a judge in the Administrative Court who has just heard two silks arguing the matter for a couple of days. However, some of the finer detail might just go over the heads of impertinent little brats with the temerity to challenge their fathers’ breakfast drinking habits, and it perhaps lacks the punch of the original, albeit flawed, message from which they (and their fathers) apparently need protecting.

All this controversy, even though Oatly Oats had commissioned “independent product life cycle assessment experts” before making their claims. The consolation for the company must surely be the enormous free publicity for its products resulting from the coverage of the story on the BBC and other online media and in most national newspapers – and now in Six Pump Court’s Environmental Law News. Mine’s a pint, Oakly Oats.

* readers will of course understand the allusion to the novelty song Mairzy Doats first recorded in 1944 by Al Trace and his Silly Symphonists, the lyrical trick of which was the use of homophones: “Mairzy doats and dozy doats and liddle lamzy divey, A kiddley divey too, wouldn’t you?” (Any excuse to write about songs.)

The OEP’s strategy and enforcement policy

As reported last week (see here) the Office for Environmental Protection’s (OEP) consultation on its draft strategy and enforcement policy has opened and will close on 22 March 2022. The OEP explains that the current draft has been shaped by the views of a broad range of stakeholders with whom it has engaged in the months leading up to this consultation, including environmental organisations, government departments, arm’s-length bodies and other public authorities, and business and industry groups. It now seeks feedback from all on the approaches it has developed, and it will publish a summary of responses alongside its final strategy and enforcement policy, expected in spring 2022.

In addition to the eyebrow we raised on how the OEP will tackle ‘culpability’ in its decision making, the consultation documents appear to highlight that there are a number of other areas of the OEP Draft Enforcement Policy with room for improvement:

  1. The draft identifies that the use of enforcement functions should be to achieve the OEP’s principal objective, namely environmental protection and the improvement of the natural environment. However, the policy then goes on to state that enforcement should aim “to achieve environmental outcomes”. This may be well-meaning shorthand, but the objectives should almost certainly be made more explicit;
  2. There is an argument for further provision to be made for the circumstances where it is necessary to go straight to robust enforcement action;
  3. The draft strategy doesn’t set out what the public interest factors are that would govern a decision to disclose information provided to them during the course of an investigation;
  4. The absence of any reference to the role that environmental principles should play, if any, in enforcement decisions is surprising and there is no mention of the Regulators Code and how this might apply to the OEP.

Questions may also be raised as to the OEP’s resources to carry out its functions. The current draft provides for circumstances where the OEP doesn’t have the capacity or capability to deliver. It is not evident that any other entity would be able to take action in those circumstances, and this may be a strong argument for further resources so as to ensure that the OEP will not be put in that position and so that there is never a situation where a decision to take enforcement action would otherwise have been taken.

The consultation comes amid some important context and background last month, when Dame Glenys Stacey spoke about the OEP, including its independence and enforcement, Sir James Bevan’s spoke at a Westminster Energy, Environment & Transport Forum conference on future environmental standards and how to regulate better after Brexit, namely speaking softly and carrying a bigger stick, and after the Environment Agency reportedly told staff to “ignore reports of low-impact pollution events” due to lack of available funds for investigation.

EA to change requirements on technically competent manager attendance

The EA consulted with stakeholders to get their views on proposed options and changes to the attendance requirements for technically competent managers (“TCMs”). There were 75 responses. The EA will outline further details as part of its second consultation.

Those consulted generally agreed that new guidance was needed to explain the attendance requirements for TCMs.

In summary:

  • A large percentage of respondents considered that attendance should be linked to the annual subsistence fee charging bands (36%). The EA will provide more detail on how the system could work in practice.
  • In terms of how site monitoring could take place, the EA said they would consider what provision they could make for remote supervision. The EA does not intend amending the ‘per week’ attendance requirements.
  • Approximately 75% supported the EA’s proposal for an adjustment in the attendance requirement based on operator performance, with those in deteriorating or poor compliance bands requiring increased TCM attendance.
  • The EA intends to keep the maximum 48 hour attendance cap but will keep the issue under review.
  • For situations where the site management would essentially stay the same as before the transfer, the EA will reconsider its proposal that the TCM attendance requirements for the transferee revert back to guidance requirements.
  • There was a strong preference for a 12 month implementation period for existing permitted sites. The EA will proceed with developing their attendance proposals on the basis of a 12 month implementation period.
  • The EA did not agree to allowing previously agreed site specific TCM attendance to be maintained after the implementation period.
  • The EA stated that in very exceptional circumstances where the operator has a history of good permit compliance, it may agree in writing not to increase the attendance requirement. This would include for example where the non-compliance was easily rectified and additional TCM attendance would provide no tangible benefit.
  • After a deterioration in compliance banding, the EA propose that the simplest means of implementing the change to TCM attendance will be within 2 weeks of receiving a compliance assessment report (CAR) form which changes compliance banding to bands C to F. Some operators will wish to challenge the findings in the CAR form. In those cases, the TCM attendance requirement will not change until either any dispute is resolved or the operator decides to increase attendance so they follow the published guidance.

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If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk