Environmental Law News

Posted on: 16 February 2022

Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC, Charles Morgan and Christopher Badger consider the UK’s national reporting requirements for disclosure of climate change risks, a European study of the impact of Brexit on fisheries and aquaculture and an interesting decision on water rights from Mauritius.

Climate change risks and the UK’s national reporting requirements

It is a difficult message to deliver that despite the efforts that are being made to limit average global temperature increases to +1.5 degrees, we will still be adversely affected by climate change.  The scientific evidence shows that this is the case for all the scenarios that we face – there is no ‘business as usual’ option.   Over 13 years ago, the Climate Change Act 2008 recognised the need for proper information, with national risk assessments and reports being required on what measures are being taken to respond to the risks.  As this blog has covered, the Climate Change Risk Assessment laid before Parliament in Jan 2022 is the third one that has been produced (hence the acronym, CCRA3). 

Defra have also been publishing some of the adaptation reports that were requested by them as part of the work that will be used to inform the third National Adaptation Programme (due in 2023).  The reports should contain what those organisations see as the current and future predicted effects of climate change on them and their proposals for adapting to this.  Only 34 of the 89 requested have been made public so far (see here)

One of the points that the Climate Change Committee has made is that the government’s choice to make this reporting voluntary has left gaps in the list of organisations being invited to report, and gives us a patchy understanding of the climate risks facing the UK’s critical national infrastructure.  Under the Act, the Secretary of State could have directed which organisations should produce these reports.  There is however some useful substance in what has been produced.  Some sectors have been part of the process since the beginning, like the water industry, and are on to their third round of reporting.  Their reports review the relevant climate change risks set out in CCRA3, and use the template developed by Water UK to ensure that the key infrastructure risks are covered.  It is also clearly linked to their funding and strategic plans.  The Environment Agency has also produced a substantive report. In contrast, the financial industry regulator the FCA is more broadbrush, and it is the first time that they have made a report. They do highlight that it is the Government’s strategy to implement mandatory disclosure obligations across the UK economy by 2025 in alignment with the Taskforce for Climate-Related Financial Disclosures (“TCFD”) recommendations.  But the picture is variable – whilst insurers have long been conscious of the risks from our changing climate, the information from other companies can be incomplete and inconsistent and still not provide “decision-useful information.”  The overall picture remains murky.

European Parliament publishes an ‘at a glance’ study of the impact of Brexit on fisheries and aquaculture

A new ‘at a glance’ study has concluded that Brexit has negatively impacted on UK fishing trade. It states that due to the imposition of trade barriers, the fact that the UK now has an increased total allowable catch does not in fact create any advantage on the export markets. In contrast, Spain is expected to be able to export more due to increased competitiveness on the EU Single Market.

Consumers will also see a moderate increase in prices, which will lead to a reduction in consumption.

On a more general level, the UK economy is recorded as being notably more affected by Brexit, with a 4% decline in GDP compared to a 1% decline for the EU. However, it is recorded that the UK’s primary agricultural sector may benefit from increased production due to a higher reliance on domestic resources.

The study concludes that Brexit is a “lose-lose situation” to all affected parties and notable welfare losses can be expected due to increased protectionism and misallocation of resources.

The study follows on from an earlier “at a glance” study that considered the legal aspects of the fisheries-related provisions of the Trade and Co-operation Agreement, published on 18 January 2022. That study concluded that it was likely that the UK would seek to reduce EU access to its waters as part of the annual negotiations after 2026, which might lead to future disputes going far beyond the current disputes experienced in relation to the UK’s territorial sea and that of the Bailiwick of Jersey. It also considered that the extent to which the TCA integrates aspects of fisheries and trade in the mechanism for remedial measures and in the termination clause was a successful attempt to create a strong bond between these two issues to reduce the UK’s possibilities in withdrawing from the arrangements on fishing opportunities and access.

The studies can be found here

“Go to, let us go down, and there confound their language, that they may not understand one another’s speech” (Genesis 11:7)

There are numerous examples of interesting and/or important decisions on water rights arising in other common law jurisdictions. Readers will readily call to mind such cases as Singh v Pattuk (1878) 4 App Cas 121 (India, distinction between rights over water flowing in a natural channel and rights over water flowing in an artificial channel), Frechette v La Compagnie Manufacturière de St Hyacinthe (1883) 9 App Cas 170 (Canada, no right to augment natural flow of water to neighbouring land), Trent-Stoughton v The Barbados Water Supply Company Ltd [1893] AC 502 (measure of compensation for exercise of statutory abstraction rights) and Stollmeyer v Trinidad Lake Petroleum Company Ltd [1918] AC 485 (intermittent flow can still constitute a watercourse, availability of declaratory and injunctive relief). All of course decisions of the Privy Council, a place to which few of us ever go. So it’s nice to see another such decision this week, CIEL Ltd v Central Water Authority [2022] UKPC 2, on appeal from the Supreme Court of Mauritius.

The case concerned rights over water from the River Tatamaka and the interpretation of the Mauritian Rivers and Canals Act 1863 and Central Water Authority Act 1971. To be honest, it’s not a decision ever likely to come in handy in the Bromley County Court, but it provides interesting insight into the different ways in which water rights can be carved up in other jurisdictions, here influenced significantly by principles of the French Civil Code. It’s a good example of the inherent bundling of water rights with property ownership such that one cannot be transferred without the other.  It also illustrates the subtleties of the concepts of “supply” and “use” of water as the basis for water charges and the importance of identifying who is accordingly liable to pay them.

And hats off to Lady Arden, who, in delivering the judgment of the Privy Council, manages at paragraph [18] to squeeze three languages into a sentence of 19 words: “The Supreme Court of Mauritius held that the rivers were res nullius and formed part of le domaine public.” Quite a tour de force and locus classicus of judicial exposition, n’est-ce pas?

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