All posts by Bridget Tough

Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC and Charles Morgan consider a case concerning the consensual disposal of judicial review proceedings, developments near COMAH sites, the Southern Water saga and announce a new book on flood claims.

Defra found in compromising position

The case of R (WWF-UK, Angling Trust Ltd and Fish Legal) v Secretary of State for Environment, Environment Agency and Natural England [2021] EWHC 1870 (Admin) is interesting on two scores. Substantively it appears to be a win for Defra, whose failure to establish a comprehensive programme of Diffuse Water Pollution Plans (“DWPPs”) was excused by the court (Lang J). However, of potentially wider interest is the manner in which the obligation to produce such plans at all was held to have arisen. That was by the compromise of earlier judicial review proceedings brought in 2015 alleging non-compliance with the requirements of the Water Framework Directive by the failure to establish Water Protection Zones (“WPZs”).

Those proceedings were disposed of by a consent order, the only substantive terms of which were the withdrawal of the application for judicial review other than for the purpose of enforcing an attached schedule, and the grant of liberty to apply for that purpose. The schedule was termed a “Defra/Environment Agency Position Statement”. That set out the future approach to the designation of WPZs by an evaluation process, concluding that “The results will be set out as soon as reasonably practicable in the Diffuse Water Pollution Plans and/or Site improvement Plans as appropriate for each site, as amended from time to time.”

Roll forward to 2021 and only four DWPPs had been published. The claimants alleged that was a breach of the terms in the schedule. The first issue was whether and how those terms took effect legally, not least because there was no statutory obligation to draw up DWPPs at all. Nevertheless Lang J held that the form of the consent order was akin to a Tomlin order, a well-established mechanism for the compromise of private law proceedings, and was enforceable as if a contract. The judgment contains a very clear and succinct summary of the principles.

The most significant step in the court’s reasoning is Lang J’s conclusion that “I do not accept that it is unlawful for a public body to enter into a binding settlement agreement. It may legitimately do so in the exercise of its statutory powers and duties. There is no reason in principle why a minister or a public body should not agree with an opposing party that they will commit to taking certain steps, as part of a settlement agreement, in the exercise of their public functions. In my experience it is commonplace for such commitments to be given, often in the form of undertakings. The terms of a settlement agreement will often differ from the relief originally sought, because it is a compromise, but that does not affect its validity. As the case law indicates, in a Tomlin order, the scheduled agreement may extend beyond the pleaded case, and give rise to new obligations … Such agreements are enforceable, on application to the Court, and do not require a fresh claim to be commenced.”

This is a very valuable indication, from an extremely experienced and well-respected public law practitioner. Many legal representatives of public bodies are hesitant to agree to such arrangements, expressing precisely the concerns dispelled by the judge. It deserves to be well-publicised and widely-known and those of us engaged in judicial review arising out of the regulatory activities of bodies such as the Environment Agency would be well-advised to have the passage to hand as a valuable aid to negotiated outcomes in difficult cases.

Sadly for the claimants, that was the high water mark (aqueous metaphor time) of their success. Lang J went on to conclude that the qualification of the defendants’ assumed obligation by the words “as soon as reasonably practicable” imported the right to have regard to scarcity of resources and that doing so justified the defendants’ relative inactivity.

Who decides on Major Accident Hazards? – new development near COMAH sites

A recent decision of the Planning Court has shown how difficult it is to interest the court in overturning an expert judgment (Valero Logistics UK Ltd and another v Plymouth City Council and others [2021] EWHC 1792 (Admin)). It has at least re-affirmed the approach taken all those years ago in Gateshead MBC v Secretary of State (1994) about the extent to which a local authority can rely upon another regulator when regimes overlap – it is still necessary that the Council is satisfied that this will be regulated appropriately and it cannot just say, “leave it all to the EA”. 

In Valero, the applicants had sought planning permission for a commercial heliport near to fuel depots that were regulated under the Control of Major Accident Hazards Regulations  (‘COMAH’) because they handled and stored highly-flammable fuels in above-ground tanks.  You therefore had the unusual spectacle of local councillors being asked to judge the wisdom of building a heliport here, and judging what to make of the risks of an accident arising from low-flying helicopters.  Whilst this might have a low probability, and indeed were assessed at 1 in a billion, its consequences could be catastrophic.

Whilst the Council did impose planning conditions to restrict the number of movements and the permitted flightpaths, the main reliance was placed on the requirement to satisfy the Civil Aviation Authority that the helicopter use was safe – particularly given that the site had had a previous unregulated and unrestricted domestic helicopter use.  The fuel storage operators argued that the Council had conspicuously failed to engage with the scale of the risk posed to their COMAH sites. 

The court considered that this was a question left to the reasonable judgment of the public authority, and the evidence showed that the Council had understood that it was ultimately a matter of planning judgment for it to make – and not for the CAA or the HSE – as to whether the risks and mitigation measures were acceptable and the new heliport should be given permission. Whilst this case may not make new law, it does confirm that the stage where the real effort needs to be made – where contentious technical issues arise – is at the application stage and not in any future legal challenge.  We can also have a lot of sympathy for the burden this can place on lay councillors.

The Southern Water saga

Much has already been written about the record fine for Southern Water that was imposed by Canterbury Crown Court last week of £90million. The sentencing hearing took 5 days, and it is apparent that the judge did not accept the company’s submissions that the illegal spills had been the result of negligence. As the BBC reported, the judge concluded that the offences had been “committed deliberately” by Southern Water’s board of directors at the time – although it is notable that no individuals have been named or separately proceeded against for these offences. Mr Justice Johnson is also reported as saying that the offences had been motivated by a desire to “focus the company’s attention on those metrics that increase its income, disregarding its wider compliance obligations”. In total, the 51 counts covered 6,971 illegal spills from 17 sites in Hampshire, Kent and West Sussex between 2010 and 2015. Yet, as the judge is also reported by the ENDS Report as saying, “Each offence does not stand in isolation. It is necessary to sentence the company for the totality of the offences to which it has pleaded guilty. But even that does not reflect the defendant’s criminality. That is because the offences are aggravated by its previous persistent pollution of the environment over very many years.” ENDS have also reported that the claim for prosecution costs of £2.5million has yet to be finally determined. In its press statement, Southern Water’s chief executive, who joined the company in 2017, said he was “deeply sorry for the historic incidents”.

This is certainly the sort of story that deserves more than one week in the news. So, there may be more to add by way of comment once we see the text of the judgment. For instance, we do not know what account the court took of the penalty that Ofwat imposed for breaches over essentially the same period. That penalty was also a record, and the £126million was stated to include a significant £32m as punishment. Meanwhile, it is said that investigations into other events after 2015 continue.

New book on flood claims

‘A Practical Guide to the Law of Flood Protection and Flood Claims’ by William Upton QC was published this week.  It is intended to be a helpful resource for established practitioners as well as an introduction to those new to the subject.  There is much that can be learnt from the caselaw, in a situation where, as Lord Justice Jackson once acknowledged, “the judge is required to carry out a somewhat daunting multifactorial assessment”. 

Whilst no flood event is the same, much of flood protection is about risk management and many of these issues have arisen in the past. The book describes the key concepts in the context of the current regulatory background, established by the Flood and Water Management Act 2010.  It also discusses why a measured Duty of Care is used in these type of nuisance and negligence claims, and what defending against flood water as the “common enemy” can mean. The subjects covered include the different roles of all the public authorities involved, and their potential duties and liabilities for compensation, including in terms of human rights law. 

The book is available to order here.  Readers of the blog can take advantage of the ‘friends of the author’ coupon for orders from the publisher’s site, 3X4VH, which will give a 10% discount (along with their usual free delivery). 

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, William Upton QC and Noémi Byrd consider the countdown to Net Zero, the role of climate change in the Planning Bill reforms and why complaints to the Office of Environmental Protection already matter.

Counting down to Net Zero?

The Sixth Carbon Budget was brought into force on 24th June 2021. In line with the Climate Change Committee’s (CCC) advice, it places a cap on targeted emissions equating to 193MtCO2e annually between 2033 and 2037. In 2019 annual emissions stood at 522MtCO2e. The reduction needed is steep. The CCC’s annual report to Parliament on emissions reductions states the government’s problem plainly: “the willingness to set emissions targets of genuine ambition contrasts with a reluctance to implement the realistic policies necessary to achieve them”.

To date, no legal challenge relying on the 2050 target duty and the carbon budgets, or indeed the Secretary of State’s duty to prepare policies and proposals which he considers will enable the carbon budgets to be met (ss. 13-15 CCA), has succeeded. This is due principally to the extent of the Secretary of State’s discretion in how the target and budgets are to be met, as explained in R (Packham) v SST [2020] EWCA Civ 1004 at [87]:

“[…] the statutory and policy arrangements we have described, while providing a clear strategy for meeting carbon budgets and achieving the target of net zero emissions, leave the Government a good deal of latitude in the action it takes to attain those objectives […] “

The fate of recent challenges relying on the provisions of the CCA suggest that this latest, most ambitious, budget is unlikely to have a significant legal impact. For example, the absence of a requirement to assess quantitatively the GHG emissions from major energy infrastructure projects under the development consent regime, was confirmed by the Court of Appeal in R (ClientEarth) v SSBEIS [2021] EWCA Civ 43. The government has since agreed to review the Energy NPS following a separate legal challenge, but there is no clear indication that a quantitative assessment will be required in future.

In R (Finch) v Surrey County Council & Ors [2020] EWHC 3559 the assessment of GHG emissions against the carbon budget is directly in issue. The main argument that end-user emissions from drilled oil should be included in an environmental statement is innovative, and as the claimant acknowledges, represents “a difficult and uncertain exercise”. In separate but contingent ground, the claimant argues that estimate of the overall GHG emissions from the proposal should have been compared to a “metric” for carbon reduction, including the statutory carbon budgets. The “metric” argument was not explicitly addressed, as the principal ground was rejected. Permission to appeal has been granted.

The difficulty this lack of a metric poses in the planning context is illustrated by the grant of permission for a non-NSIP gas-fired power plant in East Devon last year. The Inspector found that the emissions would be “substantial”, yet there was “no way of meaningfully relating the resultant GHG emissions from the proposed development, either by itself, or cumulatively with other similar schemes, quantitatively with the national 2050 outcome duty or its associated five-yearly budgets”.

Nevertheless, there may be a gradual shift towards making the numbers count. In Transport Action Network’s (TAN) current challenge to the second Road Investment Strategy (RIS2) ([2021] EWHC 568 (Admin)), TAN argues that the Secretary of State erred in law by failing to take account of the 2050 target and the carbon budgets in exercising its powers under the Infrastructure Act 2015, and has obtained permission to adduce expert evidence on alleged inaccuracies in the government’s calculations. The court might (if the claim fails) be required to reject explicitly the argument that a project likely to undermine a “legally binding” carbon budget is unlawful. If that happens against the backdrop of COP26, the law and the United Kingdom’s ‘climate leadership’ will certainly look as if they are pulling in different directions.

A longer consideration of this question about Net Zero is discussed in Noemi’s further article in our Climate Change Blog, including how the courts have considered it in the recent ClientEarth, Elliott-Smith, Finch and TAN cases.

Climate change and the Planning Bill reforms

In its 2021 Report to Parliament on the Progress in reducing emissions, the Climate Change Committee has emphasised that climate change “must be a key consideration in the government’s planning reforms”.  Whilst there have been some actions in response to previous assessments, notably in tackling flooding and water scarcity, the CCC consider that overall progress in planning and delivering adaptation is not keeping up with the increasing risks.  In its view, the UK is less prepared for the changing climate now than it was when the previous risk assessment was published five years ago.  In an echo of some of its recent pronouncements, it has noted that decisions on road building, planning, fossil fuel production and expansion of waste incineration are not only potentially incompatible with the overall need to reduce emissions but also send mixed messages and could undermine public buy-in to the Net Zero transition.  It has recommended implementation of a ‘Net Zero Test’ to ensure that all Government policy decisions are compatible with the legislated emissions targets, and that amendments should be made to the Planning Bill to ensure that developments and infrastructure are compliant with Net Zero and appropriately resilient to climate change. 

Certainly, the broad provisions currently in the Planning Act 2008 and in the Infrastructure Act 2015 that require consideration to be given to government policy on climate change, or the effect of a project on the environment, would not go far enough to achieve what is being recommended.  Political realities will no doubt determine what appears in the final draft of the Planning Bill.  But we will have to wait a while to see what is produced. The government has not followed the CCC’s recommendation and included an explicit responsibility for sustainability in the remit of the new building safety regulator in the Building Safety Bill, published this week.  This new Bill talks about the safety of people in or about buildings in relation to risks arising from buildings, and about improving the technical standard of buildings, but remains silent about climate change mitigation and adaptation.

Why complaints to the Office of Environmental Protection already matter

The announcement that the Interim OEP commenced its work on 1st July 2021 may not have caused many immediate ripples in the news. There is a fair amount of preparatory work and staff recruitment for them to do, in readiness for being able to operate on Day One after the relevant sections of the Environment Act come into force. They have provided their own advice to Defra about the draft environmental principles policy statement, following a Ministerial request. One job that they have also ticked off the list is that they have a logo.

One immediate point to highlight is that they say that the interim Office is open to receiving complaints. A complaint can be made by members of the public if they think that a “public authority” has broken “environmental law” (using the definitions in the Bill), and it is a free service. Two examples that the OEP website specifically identifies is that a public authority may have failed to carry out an environmental impact assessment, or failed to exercise a function it has – for instance, when it applies licensing standards that are less rigorous than the law demands.

Given that part of the role of the OEP is to fill the gap left by the removal of the ability to complain to the European Commission, this is a timely reminder that the delay in setting up the OEP does not represent an enforcement holiday. Indeed, the OEP website trumpets the fact that anyone can complain about an event that has happened “at any point in time”, and the Bill does allow the OEP to waive the time limits “if it considers that there are exceptional reasons for doing so”. This has yet to be tested, but making a complaint now should assist in showing that there is good reason to extend the time limit. Otherwise, according to the Environment Bill, complaints should normally be submitted within one year after you say the environmental law was last broken, or three months since the public authority’s internal complaints procedure has been exhausted (and that complaints system must be used, if there is one).

The one note of caution is that the Interim OEP still only has a limited role. It will receive and validate complaints about public authorities, but it will not be making any final decisions about them. The complaints will still need to be considered by the OEP once it is established as an independent body. Indeed, the predecessor body within Defra, the Interim Environmental Governance Secretariat (IEGS) had to take the same approach. As stated in its report on its first 3 months (from January and March 2021), it received 13 complaints. Only 3 have been closed, as one was not about environmental law, one was about the activity of a private company, and one was about a devolved matter. The other 10 are awaiting the OEP’s determination. But at least they are in the queue for consideration by the OEP, together with a preliminary assessment.

Interestingly, the interim OEP acknowledges there is the potential for a conflict of interest given that they are not yet independent of government. After all, the interim Office is still staffed by a team within Defra, with input from the relevant Northern Irish office, DAERA. They have at least stated that all of the complaints that they receive, together with their initial assessment of them, will be stored separately.

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

Counting down to Net Zero?

Posted by: Noémi Byrd

The Sixth Carbon Budget covering 2033-2037 was brought into force on 24th June 2021. In line with the Climate Change Committee’s (CCC) advice, it places a 965 million tonne cap on the emission of targeted greenhouse gases for the period, representing a 73% reduction relative to the 1990 baseline and including – for the first time – the UK’s contribution to international aviation and shipping emissions. This cap equates to 193MtCO2e emissions annually. In 2019 annual emissions stood at 522MtCO2e. The reduction needed is steep.

On the face of legislation already in place, and in the light of having achieved a 40% reduction in territorial greenhouse gas emissions during the period 1990-2019 (1) (more than any other G20 member) the United Kingdom can, credibly, call itself a climate leader. Section 1 of the Climate Change Act 2008 (CCA) requires the Secretary of State to “ensure” that the 2050 target for targeted greenhouse gas emissions reductions is met. This Net Zero target, i.e. 100% reduction relative to the 1990 baseline, has been in force since June 2019. Section 4 CCA requires the Secretary of State to set five-yearly carbon budgets leading up to 2050, and, again “ensure” that the UK’s net carbon account for a budgetary period does not exceed the carbon budget. The UK’s carbon account for the first and second carbon budget periods remained within the statutory limit, and is on track to do so for the current (third) budget ending in 2022.

However, according to the CCC, the UK is not on track to remain within the fourth and fifth climate budgets which have been set – let alone the sixth (2). The consequence – given that the budgets are intended to function as steps down to Net Zero – is that the 2050 target will not be met, unless action is urgently taken to steepen the downwards trajectory. The CCC’s annual Progress Report to Parliament on emissions reductions (June 2021) makes very plain that an absence of targets is not the problem. The requisite legislation is in place. Yet “the willingness to set emissions targets of genuine ambition contrasts with a reluctance to implement the realistic policies necessary to achieve them”. So what legal impact is the Sixth Carbon Budget, the most ambitious target so far, likely to have?

To date, no legal challenge relying on the 2050 target duty and the carbon budgets, or indeed the Secretary of State’s duty to prepare policies and proposals which he considers will enable the carbon budgets to be met (ss. 13-15 CCA), has succeeded. This is due principally to the extent of the Secretary of State’s discretion in how the target and budgets are to be met, as explained by the observations of the Court of Appeal in R (Packham) v SST [2020] EWCA Civ 1004 at [87]:

As [counsel for the Secretary of State] submitted, the statutory and policy arrangements we have described, while providing a clear strategy for meeting carbon budgets and achieving the target of net zero emissions, leave the Government a good deal of latitude in the action it takes to attain those objectives—in [counsel’s] words, “as part of an economy-wide transition”. Likely increases in emissions resulting from the construction and operation of major new infrastructure are considered under that strategy. But—again as [counsel] put it—“it is the role of Government to determine how best to make that transition””.

If a quick look back at the fate of recent challenges relying on the provisions of the CCA is the best indicator of what legal impact the sixth carbon budget will have, the answer is: probably not much. For example, major energy infrastructure projects are likely to have a significant emissions impact. Yet, there is no requirement in the (currently under review) Energy National Policy Statements (ENPS) governing the grant of development consent under the Planning Act 2008 for such projects, either to assess the need for a particular project or its likely impact on carbon budgets. The absence of this requirement to assess impact quantitatively is made explicit in the ENPSs, as confirmed by the Court of Appeal in R (ClientEarth) v SSBEIS [2021] EWCA Civ 43. The government has since agreed to review the ENPSs following a separate legal challenge(3), but there is no clear indication that a quantitative assessment of GHG emissions will be required as part of the revised policies, or if the Sixth Carbon Budget will have any impact here at all.

In R (Finch) v Surrey County Council & Ors [2020] EWHC 3559] the assessment of GHG emissions against the carbon budget is directly in issue. The GHGs in question are those generated offsite, by the combustion – i.e. the end use – of refined oil to be extracted onsite. The argument that end-user GHG emissions should be included in an environmental statement is innovative, and as the claimant acknowledges, represents “a difficult and uncertain exercise”. Nevertheless, these emissions occur and need to be counted somewhere.

A separate but contingent ground in Finch is that an estimate of the GHG emissions from the operation of the development on the site, and from the combustion of refined products emanating from the site, should have been compared to a “metric” for carbon reduction, notably the net zero target at national level, national carbon budgets, and sectoral allowances. Holgate J rejected the principal ground, and so the contingent ground fell away and the “metric” argument was not explicitly addressed. Permission to appeal has been granted.

The difficult question of whether, how, and where GHG emissions should be counted against the statutory carbon budget has yet to be explicitly addressed. The UK Emissions Trading Scheme (ETS) does provide a framework for counting (and trading) emissions within sector allowances, but it “does not necessarily have to achieve a reduction in the activities consisting of greenhouse gas emissions or causing or contributing such emissions: it is sufficient that the design of the scheme limits or encourages the limitation of those emissions” (Elliott-Smith v SSBEIS [2021] EWHC 1633 (Admin) per Dove J at [66]). In any event, the ETS covers energy intensive industries, power generation and aviation, which represent one third of the UK’s total emissions. What about the other two thirds?

The difficulty this lack of a metric poses for local planning authorities (and Inspectors) is illustrated by the grant of permission for a gas-fired power plant East Devon last year (4). The proposal fell well below the nationally significant infrastructure project threshold and so fell to be determined under the TCPA 1990. Nevertheless, emissions from the scheme were credibly estimated by objectors to amount to 28.5% of 2019 baseline emissions in the local authority’s area. The Inspector found that the emissions would be “substantial”, but that there was “no way of meaningfully relating the resultant GHG emissions from the proposed development, either by itself, or cumulatively with other similar schemes, quantitatively with the national 2050 outcome duty or its associated five-yearly budgets”. The Inspector therefore turned to support in the Energy National Policy Statements for an ‘energy mix’ including (unquantified) fossil fuel back-up for renewable energy generation, and found that this high level policy support tipped the balance in favour of granting permission – despite imminent review of the ENPSs by the government. In its latest report the CCC advises that economy-wide reductions are necessary and “any new source of emissions could put the Net Zero path at risk”, but as long as the 2050 statutory target and the carbon budgets remain a material consideration, rather than providing the basis for calculable limits to emissions from proposed development, they will remain “legally binding” in theory only.

There may be the beginnings of a shift towards making the numbers count. In Transport Action Network’s (TAN) current challenge to the second Road Investment Strategy (RIS2) ([2021] EWHC 568 (Admin)), TAN argues that the Secretary of State erred in law by failing to take account of the 2050 target and the carbon budgets in exercising its powers under the Infrastructure Act 2015. The government argues that the budget and targets were not express material considerations under the IA 2015, nor ‘so obviously material’ that there was an obligation to take them into account, and further that RIS2 emissions will be “an extremely small component” of all UK road transport emissions. Significantly, TAN has obtained permission to adduce expert evidence on alleged inaccuracies in the government’s calculations. There is potential for this claim to be the first in which the court may, if rejecting it, have to reject explicitly the argument that a project threatening the achievement of a “legally binding” carbon budget is unlawful.

The CCC emphasises that climate change “must be a key consideration in the government’s planning reforms” and that “the current Planning Bill does not ensure that developments and infrastructure are compliant with Net Zero […] it would be serious were this opportunity to be missed.” This is a clear signal that the climate impacts of development need to be assessed quantitatively, in relation to the carbon budgets, as well as qualitatively. The question is: how ? Yet more broad provisions like those in the Planning Act 2008 and the Infrastructure Act 2015 requiring (respectively and in summary) consideration to be given to government policy on climate change, or the effect of projects on the environment, will lead to yet more irrationality challenges which ultimately fail. A fixed legislative emissions threshold in line with Net Zero is one answer, but political realities will no doubt determine what appears in the final draft of the Bill.

(1) CCC Progress Report to Parliament, June 2021, page 8. (The reduction in emissions from imported goods and services is not nearly as impressive).
(2) https://www.theccc.org.uk/about/our-expertise/advice-on-reducing-the-uks-emissions/
(3) https://www.endsreport.com/article/1713981/government-begins-review-energy-national-policy-statements
(4) PINS Appeal Ref 3247638

If you have any comments or suggestions or if you would like to subscribe to the mailing list please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk

Environmental Law Podcast – July 2021

Following the pandemic induced hiatus to the podcast series, we are delighted to bring you a new edition of this podcast presented by Christopher Badger and Mark Davies in association with LexisPSL.

In this July 2021 update, they take us through:

  • the climate change litigation judgment of the Dutch Court in Milieudefensie et al v Royal Dutch Shell plc – listen from 0.38 mins
  • the Environment Agency’s National Crime Survey results – listen from 4.17 mins
  • the meaning of waste case looking at ‘fluff’ in Customs and Excise Commissioners v Devon Waste Management Ltd; Customs and Excise Commissioners v Biffa Waste Services Ltd [2021] All ER (D) 86 (Apr) – listen from 7.48 mins

To listen to the podcast, please use the link below:-

Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC, Charles Morgan and Natasha Hausdorff consider lawful development certificates, the Environment Agency’s National Waste Crime Agency and the dangers of sewage sludge.

Nocado: not about air quality, but important points of law nevertheless

You would be forgiven, when reading the headlines this week about the quashing of Ocado’s permission linked to a new distribution centre, that it was a case about air quality and its location next door to a primary school.  However, you will not find the phrase “air quality” even mentioned in judgement at all.  It was not a case about those issues, although it is easy to understand why those were the issues that motivated the local residents’ group (catchily called ‘Nocado’) to make such great efforts to halt the development.

Nevetheless, as the opening words of the judgment confirm, this Planning Court case – full name R (oao Ocado Retail Ltd) v Islington BC , Telereal Trillium Limited and Concerned Residents of Tufnell Park [2021] EWHC 1509 (Admin) – was about important issues of planning law.  Islington BC has issued and then revoked a lawful development certificate  (‘LDC’) which would have allowed a warehouse use. The judge had to consider what the legal nature of the right is which accrues when a breach of condition becomes immune from enforcement and lawful, and what is the scope of the power to revoke a certificate if it is based on false statements or documents, or any material information was withheld from the Council. It also confirms that you could have a LDC granted for the breach of one condition, and all the other conditions would still apply. The judgement is a masterclass in how these issues should be approached.

Certificates of Lawful Use can be a real headache when it comes to enforcement, as they can be too broadly worded.  There may well be little in the way of restrictions placed on the land use with regard to any environmental or amenity issues. We have seen this problem of the gaps between the planning and environmental regimes arise several times in cases about old waste and industrial sites.   New occupiers and owners are then able to lawfully push the boundaries of what everyone had thought had been permitted.  In the Ocado case, the court held that the certificate had been lawfully revoked, but it would have otherwise supported the high level of use proposed in the sensitive residential location.

The Environment Agency’s National Waste Crime Survey

Last week saw reports of the results of the Environment Agency’s (“the Agency”) National Waste Crime Survey, assessing the impact of waste crime on the waste industry, land owners, farmers and associated sectors, and investigating how regulation could more effectively combat this growing problem. Commissioned by the Agency and supported by the Chartered Institution of Wastes Management (CIWM), Environmental Services Association (ESA), the United Resource Operators Consortium and the National Farmers Union (NFU), it elicited 836 responses. The Agency is due to publish its findings in the autumn.

For those responding, the issues of most concern were large scale fly-tipping (with 55% of respondents estimating that this had increased over the past 12 months) and illegal waste sites. The economic impact of waste crime was cited as the biggest problem; 73% of respondents reported that they had covered the financial cost of clean-up and 58% experienced disruption to their business as a result. Nearly 3 out of 10 people impacted by illegal exports of waste, or illegal waste sites, had incurred over £50,000 of costs in the last year. Respondents estimated that only 25% of waste crime incidents are reported to the Agency. Waste industry employees estimated that 18% in their industry sector committed some form of waste crime.

Malcolm Lythgo, Head of Waste Regulation at the Agency stated that “waste criminals show complete disregard for communities and the environment, and they need to know we are ready to take action. Last year the EA prosecuted nearly 100 individuals and companies for waste crime offences, with fines exceeding £900,000, 28 custodial sentences and £1 million of confiscation orders”.

The survey, which was launched in March, came just over a year after the Agency launched the Joint Unit for Waste Crime in January 2020. Tackling serious and organised crime, this Unit has facilitated multi-agency operations, intelligence sharing and enforcement. The ‘week of action’ tackling waste and metal crime in October 2020, saw joint operations between the Agency and British Transport Police in which over 1,100 vehicles were stopped and 550 sites were visited, resulting in 29 arrests and 150 offences being detected. The Agency will use the survey results, and the insights they offer, to inform its enforcement action and sector engagement. This includes increasing awareness of waste regulation and the role of the Agency amongst customers, businesses and impacted communities.

Gently shaken, but still … [rhymes with “stirred”]

We’ve banged on about sewage sludge before – see “Sludge won’t budge despite proposed regulatory nudge”, “Sticky times for sewage sludge” and “Plumbing the depths of sludge disposal regulation”. Our theme has been the manifest “light touch” of regulation because, essentially, you have to get rid of the stuff somehow, at the same rate at which it is continuously produced – a process not susceptible to legislative control. As a result, attention has focussed on setting limits for a very confined set of substances and ensuring that nothing in the regulations renders difficult or unlawful the existing practices of sewerage undertakers and others who are in the business of sewage disposal, including the collection of the contents of septic tanks.

Things are coming home to roost. Tales have emerged of Cumbrian cattle at two separate locations falling ill and dying en masse after grazing on land spread with sewage sludge, the presence of a cocktail of carcinogens and toxins being suspected as the cause. In the USA, “forever chemicals” have been identified in sludge. In Australia, concern is being expressed at the presence of medium-chain chlorinated paraffins. The truth is that sewage is a fantastically complex combination of all manner of synthesised and refined substances created and used by humans and casually disposed of into the domestic sewage system (be it public sewers or private tanks), supplemented by run-off from land strewn with similar products. Many of these, including micro-plastics, pass through the entire treatment system unabated. A recent ENDS report lists, by way of example of the content of the sludge, substances whose origins may have been paint stripper, rubber tyres (which wear away on road surfaces), brake fluid (likewise), cosmetics and immuno-suppressant and chemotherapy drugs.

When it comes to sewage, we are all sinners.

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, William Upton QC and James Harrison consider the precautionary principle, the new Dutch case about Shell’s climate change obligations, the latest list of Enforcement Undertakings, and look forward to the UKELA conference.

The Precautionary Principle as an answer to uncertainty

Trying to satisfy the tests under the Habitat Regulations to allow new housing to proceed near to a European protected site is a challenge at the best of times. The decision maker has to be satisfied, at the time of the consent, that the project will not adversely affect the integrity of the European site.  When a site is declared to be in an unfavourable condition, there is then little, if any room for additional adverse impacts, as many local authorities across the country are discovering. The recent case of R (oao Wyatt v Fareham Borough Council [2021] EWHC 1434 (Admin), before Mr Justice Jay, has seen the advice in respect of the Solent Estuary come under close scrutiny, and has highlighted how far the precautionary principle can provide an answer to the conundrum. The case itself may have only been about 8 new houses, but the advice at issue affects 12 local planning authority areas. 

The advice from Natural England is that there remains a considerable degree of scientific uncertainty surrounding the likely impact of the wastewater from new housing development on the Solent Estuary sites, which are in unfavourable condition. Applying the precautionary principle, this means that NE’s advice is that only proposals which can show that they will be, at worst, “nutrient neutral”, should be granted permission. 

Many see this as a moratorium on new development.  Indeed, the claimant in effect tried to argue that the uncertainty about the effects of new houses near the Solent ruled out any new development in the region. This was described by the judge as “an unattractive submission given the exigencies of the real world.” It also “misunderstands the precautionary principle. We are in the realm of the empirical sciences where uncertainty is inevitable”. As he said, the whole point of the principle is that the uncertainty is addressed by applying precautionary rates to the variables included in the assessment.  In that manner, reasonable scientific certainty can indeed be given as to the absence of an adverse outcome and satisfy the legal requirements.   In the case of the Solent, in order to calculate the likely nutrient impact from housing, NE advise using an algorithm that uses a number of variables, and then adding a further cushion of 20% as a precautionary buffer. Whilst the judge considered that one element (the use of a national average occupancy figure) was open to criticism, he considered that the overall algorithm was “sufficiently precautionary” and not – given the court’s role – irrational. 

The story of nutrient neutrality continues, as Natural England are now in the process of producing national guidance, and have been waiting on the results of case.  But the case is an important reminder of the proper role of the Precautionary Principle, and that a requirement in an assessment for absolute certainty would be impossible of scientific attainment as well as being disproportionate.

Fossil fuels, Shell and Friends of the Earth (Netherlands)

Headlines have been grabbed by the Dutch case of Milieudefensie et al v Royal Dutch Shell, (26 May 2021), where the Court of First Instance of The Hague has ruled that Royal Dutch Shell (“RDS”) has an independent obligation to reduce its CO2 emissions by 45% by 2030 compared to 2010 levels and to zero by 2050, in line with the Paris Agreement.

This case owes a debt to the Urgenda case for the principle that the State has a positive duty under human rights law to act against climate change. But the legal basis of the Milieudefensie judgment is novel in the way that it utilises Dutch private law to extend this principle to apply international human rights law to RDS in a way that could potentially in future be applied to “all companies, no matter size, sector, operational context, property relations or structure”.

The Dutch Civil Code stipulates inter alia that tortious behaviour can consist of “what according to unwritten law is contrary to what is required in societal interrelations”. The Court has used this to hold that RDS are under a duty of care to reduce all its global emissions, because these will increase global temperatures and hence harm Dutch citizens.  It relied on a list of 14 relevant elements, including that global warming beyond 1.5°C will heavily impact upon human rights (per Urgenda) and that corporations must respect human rights and do their share to reduce climate change and its effects.

The Court acknowledged that RDS “cannot solve this global problem on its own” but that RDS was not absolved of its “individual partial responsibility to do its part regarding the emissions of the Shell group, which it can control and influence”.  The Court stated that RDS has what it referred to as an “obligation of result” to reduce the emissions directly resulting from its activities (‘Scope 1 emissions’), and an “obligation of best efforts” to reduce the emissions resulting both from the production of the energy used by the Shell Group (‘Scope 2 emissions’), and from its consumers (‘Scope 3 emissions’). RDS was given flexibility in allocating emissions cuts between Scope 1, 2, and 3 emissions, so long as in aggregate, the total emissions were reduced by 45%.

Shell has already announced its intention to appeal the judgment and it will be fascinating to see how far the Dutch appeal court will go in upholding the decision and the distinction between the two types of obligations. Whilst at first glance this case seems to impose a very wide-reaching standard of care, it has also featured in the Norwegian courts.  The legal status of environmental targets – whether they are absolute or merely require reasonable efforts – also remains a live issue for many governments.

Meanwhile, Shell has not been let off the hook – the Dutch court has made its decision provisionally enforceable so that RDS will be required to meet its reduction obligations even as the case is appealed.

Recent update to Enforcement Undertakings in England

The Environment Agency has published its list of the 29 undertakings it has accepted in the 6 months between October 2020 and March 2021. It can be viewed here.

As ever, the actual details given are brief, and relate more to the actions that will be taken than the details of the underlying offence.  Whilst each entry could tell a very interesting story, all that we really know is that the Agency decided – in line with its enforcement policy – that it was not in the public interest to prosecute, that they consider that the offer has addressed the cause and effect of the offending, and that it will protect / restore and/or enhance the country’s natural capital.

It is striking that most of the list is taken up by breaches of the producer responsibility for packaging waste regulations. There are 20 undertakings listed. Indeed we cannot recall when the last prosecution for this type of offence was last reported.  The sums involved range from about £1,700 to £54,000.

Seven entries relate to environment permitting, and the sums involved  range from some £2,000 (for some silage pollution) up to £380,000 (for a failure to comply with a permit condition, resulting in chemical pollution to nearby streams). They also cover offences such as effluent discharges, sewage pollution, and even operating an illegal waste site for a year. There are then two single entries for Water Resources Act 1991 (a water abstraction offence) and for the Salmon and Freshwater Fisheries Act 1975.

The use of this form of civil sanction has become well embedded. It is therefore regrettable that, as the ENDS Report has noted, hundreds of previous undertakings have been removed from view as the newest list replaces those that went before on www.gov.uk. ENDS have done a public service by collating the previous entries, and in publishing a complete list on their web pages.

UKELA CONFERENCE week

We look forward to the UKELA Annual conference next week, starting on 14 June, and we are pleased to be able to support it as one of the sponsors.  The main plenaries are on Thursday and Friday. Members of chambers are also involved on:

Monday June 14, at the Water Working Party session (12.30-2pm), Charles Morgan and Nick Ostrowski will be leading the session on “Combined Sewer Overflows – what are they and what is all the fuss about?” with Rachel Salvidge, journalist at ENDS; Andrea Poole, water/waste water consultant at Atkins; and Philip Dunne, MP for Ludlow and author of the Sewer (Inland Waterways) Bill 2019-2021.

Tuesday, June 15, Climate Change and Energy Working Party (8.30-10am) where  Stephen Hockman QC will be leading a session on the “Energy Sector after Brexit”, with Christopher Badger; and Silke Goldberg, Herbert Smith Freehills.

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, Christopher Badger, Nicholas Ostrowski and James Harrison consider the Government’s commitment to a 78% reduction in emissions by 2035, the publication of a climate change strategy by the Pensions Regulator and a case which rules that fluff is subject to landfill tax.

Government commits to 78% reduction in emissions by 2035

The Government has accepted the recommendations of the Climate Change Committee and committed the UK, in law, to reduce emissions by 78% by 2035 compared to 1990 levels. This now forms part of the sixth Carbon Budget, aimed at taking the UK more than three-quarters of the way to reaching net zero by 2050.

For the first time the Carbon Budget will include emissions from international aviation and shipping.

The UK has already committed to reducing emissions in 2030 by at least 68% compared to 1990 levels through its most recent Nationally Determined Contribution, although this did not include international aviation and shipping. On an equivalent basis, the 2030 would be a 64% reduction relative to 1990.

There is obviously a political element to the announcement, coming as it did just before President Biden’s Climate Summit held on Earth Day (22 April). It also comes at a time when the UK will be the President of COP26, still scheduled to take place in Glasgow later this year.

The key concern is that the Government doesn’t have the policies to be able to meet this legal commitment. We don’t yet have the Treasury’s Net Zero Review or an overarching Net Zero Strategy, both of which are to be published ahead of COP26. The Committee on Climate Change has published a report on potential policies to drive us towards Net Zero and has suggested that the move to a green economy will be cost neutral, despite the fact that it will require £50 billion of investment each year to achieve that target. It will be interesting to see how many of these suggested policies are adopted.

The Government’s announcement can be found here

The 6th Carbon Budget and related documents can be found here

Pensions Regulator publishes climate change strategy

On 7 April 2021, The Pensions Regulator (TPR) published its climate change strategy (CCS), which outlines TPR’s strategic response to climate change and how it will help pension trustees “meet the challenges from climate change” and ensure that decisions made on behalf of pension savers are in their best interests. The proposals made within the CCS are (as one would expect) focused on the potential for investment performance to suffer if trustees fail to consider risks and opportunities from climate change or fail to exercise effective stewardship.

The CCS is shaped by the government’s Green Finance Strategy (GFS). The GFS aims to encourage investment in green and low carbon technologies, services and infrastructure intended to help achieve net zero domestic greenhouse gas emissions by 2050. To ensure climate and environmental factors are fully integrated into financial decision-making, recommendations drawn up by the Taskforce on Climate-related Financial Disclosures (TCFD) should be followed. The Pension Schemes Act 2021 develops the picture as it facilitates the making of new regulations for prescribed schemes based on TCFD recommendations, for instance, to require mandatory disclosure of climate risks to trustees and savers.

Against this backdrop, the CCS addresses three primary aims, the most significant of which is the aim to “create better outcomes in later life for workplace savers by driving trustee action on the risks and opportunities from climate change”. There are three timescales cited in the CCS in which achievement will be measured. In the first period (ending in 2024), it is expected that schemes will implement, disclose and continue to refine their policies on climate change, that the new Pension Schemes Act comes into force, and that trustees will take climate goals into account. Initially, not all schemes will be expected to meet these targets (approximately 90% of defined contribution scheme memberships and approximately 60% of defined benefit memberships). However, it is reasonable for us to hope that the TPR will take effective action against non-compliance in those schemes that are being regulated because the CCS explicitly states that trustees “must clearly evidence that words and intentions translate into action” or risk enforcement action.

In addition to regulating the industry, TPR will work to understand and inform debates about green finance and to be a strong voice highlighting climate-related risks and opportunities for savers and the pensions industry. TPR will also take steps to reduce its own impact upon the climate.

Sceptics amongst us might expect that the TPR would seek to do the bare minimum to mitigate the risk posed by climate change and take advantage of potential investment opportunities. Indeed, this fear could be realised because TPR will set its own “milestones” and check progress against its objectives, which carries with it the inherent problems of TPR marking its own homework. However, the impression given by the CCS is that this is not mere lip service being paid to the problem. Time will tell if effective steps are being taken but in Autumn 2021 we can at least expect a Climate Adaptation Report outlining findings on how those running pension schemes are responding to and managing the risks and opportunities from climate change. We can also take heart from the fact that other sustainability-related financial risks (e.g., biodiversity loss or UN Sustainable Development Goals) could be encompassed in future iterations of the CCS.

Landfill fluff case – Court of Appeal decide fluff is rubbish and is subject to landfill tax

Landfill operators create cells lined with thick impermeable membranes to prevent leachate from seeping out of the cells and into the ground. In order to prevent any sharp objects from protruding through the impermeable membrane, landfill operators place a layer of ‘fluff’ which is compacted black bag waste and which is laid underneath and on top of the other waste in the cell to protect the cell from being punctured. The short point raised in this appeal was – is the fluff laid at the top of the cell waste (and hence liable to landfill tax) or not?

Keen eyed readers (see previous blog post here) will recall that in May 2018 the First Tier Tribunal found that was waste and hence the HMRC was entitled to landfill tax arising from that waste. The Upper Tribunal overturned the First Tier Tribunal’s decision in January 2020 (see previous blog post here) and held that, in fact, fluff was not waste.

The Court of Appeal has now come along and held that, in fact, the Upper Tribunal was wrong and the First Tier Tribunal was right and, all along, fluff is actually waste that is subject to landfill tax.

The see-sawing between these difference judges tell us one thing right at the start – any case involving the definition of waste is difficult. It is rare for a decision of Mr Justice Fancourt (President of the Upper Tribunal Lands Chamber) to be overturned on appeal. If an eminent judge of the High Court could get this wrong what chance, one may ask, does a humble waste operator have of correctly identifying what is and what is not waste?

Interested readers can peruse the detailed judgment of Rose LJ (now elevated to the Supreme Court) at their leisure. Principally it revolves around a careful consideration of the four key authorities and makes the point that even if a material is to be ‘used’ in some way that does not necessarily mean that there is no ‘intention to discard’ it (the key test) and Lady Rose warns us against relying too heavily on analogies when ascertaining the meaning of ‘discard’ in the legislation. There is also a very useful judgment from Nugee LJ about the limitation of relying on previous authorities.

Standing back though and given the trouble this apparently straightforward issue has given to the judiciary one can only imagine that the waste operators will seriously be considering an appeal to the Supreme Court. Watch this space!

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 and Christopher Badger consider the Supreme Court decision on parent company liability in Okpabi v Royal Dutch Shell plc, another case concerning the scope of the Environment Agency’s liabilities in common law negligence and environmental announcements in the 2021 Budget.

Wood spotted despite interference from trees

Zealous attention to detail can sometimes lead to obfuscation of the real point. One manifestation of this is the deployment at interlocutory hearings of vast quantities of paperwork, to ensure that there is no aspect of the case upon which the court is less than fully informed. This approach seems to have beset the case of Okpabi v Royal Dutch Shell plc [2021] UKSC 3 and provoked adverse comment from the judiciary. We noted the Court of Appeal decision almost exactly three years ago, observing the somewhat perplexing combination of criticism by that court of the amount of material deployed coupled with the deepest of dives into its content as part of the decision-making process. We also noted the uncomfortable notion of a majority decision that no arguable case was demonstrated, when a third member of the very same court thought that there was.

In the Supreme Court, Lord Hamblen delivered the single judgment with which the other Justices agreed. Whilst itself involving a review of the evidence deployed, this was firmly directed at demonstrating the futility of such an exercise in the context of an application where the test was simply the arguability of the claim, which was to be determined principally by reference to the pleadings rather than a review of the inevitably incomplete available evidence.

So much of the judgment is devoted to this hatchet job that the substantive decision is almost buried. It appears at paragraphs [153] – [159] and in effect concludes that Sales LJ, the minority judge in the Court of Appeal, got it right after all and the claimants’ pleadings did indeed disclose an arguable case in negligence against Royal Dutch Shell as the parent company of a Nigerian subsidiary whose activities are alleged to have caused gross pollution of the Niger Delta.

Another contributor to the length and depth of hearings is a similarly deep dive into case law, founded on the belief that demonstration of a knowledge of the most obscure and unreported first instance applications of the relevant principles is more likely to impress the court and win the day than confining oneself to the application to the facts of the principles of the latest definitive Supreme Court judgment. In the present context, that definitive case should in future be not Okpabi but Lungowe v Vedanta Resources plc [2020] AC 1045. Indeed Lord Hamblen at [2] observed that “It might reasonably have been expected that the guidance provided by that decision would resolve this appeal without the need for a hearing”. At [25] he summarised that guidance as being that there is no distinct category of liability in negligence founded upon the relationship between parents and subsidiaries, and that whether a duty of care arises:

“… depends on the extent to which, and the way in which, the parent availed itself of the opportunity to take over, intervene in, control, supervise or advise the management of the relevant operations (including land use) of the subsidiary.”

per Lord Briggs in Vedanta at [49].

So the touchstone is “management”. The chances of this being the last word on the subject are, however, similar to those of the survival of a snowball in Hell – as witness the fact of the decision in Okpabi itself. A real, distinct, future development may be the manner in which this guidance should be applied in the context not of parent/subsidiary but of sole owner + director/limited company. Both these structures rely on the integrity of the concept of separate legal personality in an inherently similar way. The similarities and differences between them in the operation of the law of negligence seem rather unclear.

Flood of trouble for the Environment Agency

Culverts are the bane of the lives of both those that have to maintain them and all those who suffer from their lack of maintenance. They have their own special jurisprudence, to which Anchor Hanover Group v Arcadis Consulting (UK) Ltd and others [2021] EWHC 543 (TCC) is the latest addition. To stop them blocking, they have to have screens at their entrances. Those screens then risk becoming a major cause of blockage in themselves. Thus the counter-intuitive but sound guidance from the Environment Agency (the Fourth Defendant in the proceedings) that “The goal of a trash screen should not be to trap as much debris as possible. In fact the screen should trap as little as possible whilst still acting to prevent blockage of the culvert.”

The essential course of the litigation is probably already becoming apparent. A development required the deviation of a watercourse, in part through a culvert. The planning permission required prior approval by the local planning authority of the culvert design. The approval of the Environment Agency was also required under S109 of the Water Resources Act 1991. The Environment Agency, after some discussion and with some reservations, approved the use of a 75 mm screen and advised the local planning authority accordingly, who also gave their approval. The screen in fact trapped too much debris and was “blinded” and property was flooded. Those injured sued the design consultants involved, the local highway authority (also the owner of the screen) and the Environment Agency. The Agency sought summary judgment on the basis that it did not even arguably owe the alleged duty of care in the course of performing its statutory functions and exercising statutory powers, likening itself to a planning authority in that respect.

The claimants argued that the Environment Agency had, at least arguably, gone beyond the mere exercise of statutory powers or discharge of statutory duties and had assumed responsibility for the design of the culvert – assertions which could not be summarily dismissed and should be investigated at a trial.

O’Farrell J. held that no duty of care could arise merely from the consideration and determination of an application for approval. However it was indeed arguable that the Agency had on the pleaded facts become involved in the actual design of the culvert in a manner capable of giving rise to a duty of care. In addition, the Environment Agency had taken it upon itself to clear the culvert on one occasion. The possibility could not be (entirely) excluded of that amounting to an assumption of responsibility. The case should therefore proceed to trial.

As if the Environment Agency did not have enough on its plate already, what with want of resources, complaints of dereliction of its enforcement duties in several sectors and the imminent approach of its super-regulator (?nemesis?) the Office for Environmental Protection. It is now regularly facing attempts to establish private civil liability for its shortcomings (see e.g. Pigot v Environment Agency [2021] EWCA Civ 213, King v Environment Agency [2018] Env LR 19, Hall v Environment Agency [2018] 1 WLR 1433, R (Mott) v Environment Agency [2018] 1 WLR 1022). Not all are successful, but not all have failed. It will be interesting to see the ultimate fate of this one.

Budget 2021

Chancellor Rishi Sunak delivered his Budget statement last week. Key environmental announcements included:

i) The remit for the Monetary Policy Committee was updated to reflect the Government’s current economic objectives, which include:

“maintaining a resilient, effectively regulated and competitive financial system that supports the real economy through the provision of productive finance and critical financial services, while protecting consumers, safeguarding taxpayer interests and supporting the transition to a net zero economy.”

The words in italics reflect the amended wording from March 2020.

ii) Both the Aggregates Levy and Carbon Price Support were frozen. Additional proposals for expanding the UK Emissions Trading Scheme will be set out over the course of 2021.

iii) The Government is to offer its first ever sovereign green bond this summer, with a further issuance later in 2021. Additionally there will be a green retail savings product through National Savings & Investment (“NS&I”) in the summer of 2021. A new Carbon Markets Working Group is to be set up under the leadership of Dame Clara Furse, former Chief Executive of the London Stock Exchange, with the intention of establishing London.

iv) Green energy innovation schemes, from the £1 billion Net Zero Innovation Portfolio, which include the launch of a £20 million programme to support the development of offshore wind, a £68 million competition to implement energy storage prototypes or technology demonstrators and a £4 million competition for  biomass feedstocks programme. Support is being offered to offshore wind schemes in Teesside and Humberside.

v) £4.8 million will be provided to support a hydrogen hub at Holyhead. £27 million will be provided to the Aberdeen Energy Transition Zone; and

vi) A UK Infrastructure Bank, with £12 billion of equity and debt capital to finance local authority and private sector infrastructure projects across the UK.

Given that it can reasonably be anticipated that the UK needs to invest heavily in infrastructure projects in order to boost its economy post Covid, greater investment in hydrogen must be a priority for a number of organisations. Hydrogen has been identified as a key part of the green economy for years. At the start of this year, the energy networks published their ‘Hydrogen Network Plan’ (see here) which includes being ready by 2023 to blend 20% hydrogen into the gas network and delivering a network of refuelling facilities for zero emission heavy goods vehicles. The sums so far in the Budget are relatively small but watch this space.

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, Christopher Badger and Mark Davies consider water pollution fines for Thames Water and fines in the US for a UK company found to be in breach of air pollution limits.

Thames Water fined £2.3 million for ‘foreseeable’ pollution

Thames Water has been fined £2.3 million for pollution of a stream in Oxfordshire following equipment faults at a sewage treatment plant in Henley. The Environment Agency alleged that there was no adequate monitoring in place to manage the risk of pollution at the site, made worse by staff not responding to alarms highlighting faults in the process. Ammonia levels in the watercourse were double the permitted limits and fish from 13 species dies, including chub, gudgeon, dace, roach, perch, tench and pike. The stream took almost a year to recover, having lost almost all its fish to pollution.

The fine was imposed by Judge Francis Sheridan at Aylesbury Crown Court on 26 February. The company was also ordered to pay costs of £87,944.

The Environment Agency highlight that this latest conviction brings the total amount of fines levied against Thames Water since 2017 to £24.4 million for 9 cases of water pollution across Oxfordshire, Berkshire and Buckinghamshire. It was Judge Sheridan that imposed a record £20 million fine against Thames Water back in March 2017 for as series of pollution events in Buckinghamshire and Oxfordshire that had resulted in 1.9bn litres of untreated sewage entering the Thames.

The incident took place 5 years ago and the Judge took into account significant steps that had been taken since the incident to improve matters. Nonetheless, it was clear that the Judge wanted to build a deterrent element into the financial penalty.

The Environment Agency’s press release can be found here

Air Quality News: USA, UK and EU (sort of)

In news from across the pond, UK-owned company Drax was recently fined in the US for breaching air pollution rules. The fine of $2.5m relates to a facility in Gloster, Mississippi that actually supplies wood pellets to the UK, and was imposed by the Mississippi Department for Environmental Quality due to breaches in the levels of volatile organic compounds at the plant.

It has been reported that, to Drax’s credit (scant solace though this may be,) the fine appears to have been levied after the company self-reported. It may well therefore be that the fine could have been even larger had this not happened and it been uncovered after an investigation.

The irony of the fine being imposed for breaches of environmental standards is of course that the pellets being produced at the plant are used in green energy generation in the UK. One has to question the true credibility of green energy claims when faced with a product produced in breach of environmental standards and shipped across the Atlantic, only to be burnt.

In news from across the Channel, the UK has, in what may be one of the last judgments from the ECJ to apply here, been found to be ‘systematically and persistently’ in breach of air pollution limits in respect of NO2.

The decision of the ECJ raises all kind of interesting points (and will no doubt be covered in full in this Blog at a later date): what will happen if the UK continues to fail to comply within a reasonable period? If the Commission issues a formal notice requiring the UK to remedy the breaches, what weight will it be afforded? Could the UK be forced to pay a fine levied by the Commission?

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, Noémi Byrd and Mark Davies consider a recent case involving the application of Energy National Policy Statements to nationally significant infrastructure projects, developments on legislation to curb sewage overflows and further delays for the Environment Bill.

Who’s counting? 

The winter of 2020-21 has seen the revitalisation of government climate policy in the so-called “race to net zero”: first the long-awaited Energy White Paper and the updated Oil and Gas Authority Strategy, with further policies expected before the end of the first quarter. Glasgow is to host COP26 in the autumn. Against that forward-looking context, the judgment of the Court of Appeal in R (Client Earth) v Secretary of State for BEIS [2021] EWCA Civ 43 is a timely reminder that Energy National Policy Statements (“ENPS”) EN-1 and EN-2, designated in 2011 under the Planning Act 2008, pre-dating ratification of the Paris Agreement and the statutory net zero target, are still very much in play. The ENPSs apply principally to nationally significant infrastructure (“NSIP”), and emphasise the “need” for continuing fossil fuel energy generation to support the transition to a low carbon economy, to make up for intermittent power from renewable sources.

The judgment confirms that a project’s actual contribution to this established need is not required to be quantitatively assessed. Nor is a proposal’s potential impact on the statutory carbon budgets a matter for the decision-maker. That impact has been taken into account at a strategic level, and is ‘baked in’ to the policy. Notwithstanding the anticipated review of the ENPSs by the end of 2021 (the government’s failure to review was challenged in different proceedings), the Energy White Paper makes it clear the government considers that need for the broad mix of energy infrastructure in the current policies – excluding coal-fired power – will continue. It would be surprising if the ENPSs were radically altered insofar as they set out the approach to assessing need and impact on carbon budgets.

The NSIP in question, two gas-fired units at Drax power station in North Yorkshire, would if operational have the biggest generating capacity in Europe (it is said), over a period of 25 years. The Examining Authority (“ExA”) recommended refusal, partly on the basis that consent would undermine the government’s commitments under the Climate Change Act 2008.

The Secretary of State took the view that the ExA was wrong to conduct an assessment of the need for this particular development, as distinct from the general need for energy NSIPs established by EN-1 (which should be given significant weight) and also wrong to take into account evidence of changes in energy generation since designation of the policy in 2011. While the significant adverse impact of the proposed development on GHG emissions was “acknowledged”, EN-1 makes it clear that this should not displace the presumption in favour of granting consent. Material changes in climate law and policy since 2011 do not change that policy presumption. The Secretary of State decided, and the Court of Appeal agreed, that the UK’s GHG emissions reduction targets have already been taken into account in preparing EN-1 (in 2011), and that further quantitative assessment or reference to current projections of need is unnecessary.

The Court found that the absence of any quantitative definition of need in the policy is “striking”, “deliberate” and “explicit”. Other, non-planning and market-based mechanisms exist to influence the delivery of energy NSIPs. It followed that proposals are to be assessed on the basis that need has been demonstrated and is as described in the text of the policy itself. Consequently, Client Earth was wrong to argue that “quantitative” assessment of need, necessarily influenced by current evidence, is always required. However, the Court of Appeal left the door ajar on this issue: the policy does not compel a quantitative assessment, but there may be some circumstances in which it is appropriate. Still, it is hard to envisage the circumstances in which an ExA would invite a quantitative assessment knowing that the Secretary of State may lawfully give it no weight.

The Court further held that GHG emissions alone are not always an “automatic and insuperable obstacle” to consent –  but that they might be. The Court diverged at this point from Holgate J at first instance, who had found that GHGs were not capable of being a freestanding reason for refusal. Again, the door is left ajar: in some circumstances, GHG emissions could be “significant or even decisive”.

As the policies stand (and as they seem likely to remain) the net zero target duty and the carbon budgets in the Climate Change Act 2008 have little to no impact on NSIP decisions which are likely to bear on whether those targets will be met. That might well be a gauntlet for a public interest claimant to take up, if the right argument can be found.

Wishin’ and a-hopin’

We have already commented on the Sewage (Inland Waters) Bill being promoted by the Rt Hon Philip Dunne MP. Like so many other measures, it has at least temporarily foundered on the rocks of the pandemic. Its second reading, due on 22 January, has been indefinitely deferred despite it having gained considerable cross-party support from 106 MPs.  In the same week, Defra announced that the Storm Overflows Taskforce, a joint industry-government group created in August 2020, has agreed a new objective to prevent damage from storm overflows.

Sewerage undertakers have agreed to provide all-year-round real-time data on CSO discharges into bathing waters, to accelerate the installation of monitoring devices generally and to publish annually the data obtained, to be complied by the Environment Agency. Defra also states that “The Government has committed to continuing to work with Mr. Dunne on the best way to make progress in reducing the harm caused by sewage spilling into our rivers.” Whilst unfortunately the use of the expression “committed to” by any organisation, particularly in the public sector, is almost invariably the immediate prelude to the identification of its area of greatest weakness rather than strength and generally constitutes no more than an acknowledgement of the chronic nature of that weakness, we must take such comfort as we can and trust in the sincerity of the statement.

The cynic might say that given that several adverse decisions of the CJEU did not promote a UK solution, the disappearance of the supervisory jurisdiction of the Commission and the faltering progress of both Mr. Dunne’s Bill and the new Environment Bill do not augur well for the effectiveness of this new, voluntary initiative.

Defra’s acknowledgement in its press release that “water infrastructure has not kept pace with development growth over decades”, is perhaps itself a small step forward. Not sure that it would ever had said that whilst the Commission was still looking over its shoulder. Whether these words will translate into action remains to be seen.

Water UK (the undertakers’ representative body) is a constituent member of the Taskforce. Its response has avoided the pitfall of the use of the expression “committed to”. It tells us instead that its members are “passionate about protecting and enhancing our nation’s rivers”. Phew, thank goodness for that. Now all we need is for next year’s Miss World to tell us that her ambition is to make all our rivers clean again and it’s all sorted.

The Environment Bill has been delayed (again)

Continuing on a theme this week, more news of delay to the hugely important Environment Bill. Originally introduced in July 2018 by then Prime Minister Theresa May, it first entered Parliament under Boris Johnson in October 2019. Since then it has been plagued by a series of unfortunate events: a general election, wrangling over Brexit and, of course, Covid-19. It will not be returning until the next Parliamentary session.

The delay is frustrating. The Environment Bill was supposed to introduce those measures required to fill the gap at the end of the transition period, including, of course, the Office for Environmental Protection. No Bill, no OEP, less protection for the environment (both here and abroad) post-Brexit.

Given that the Government has been publicly criticised (indeed by high-profile sources as wide-ranging as the Committee on Climate Change and former global warming researchers from Nasa) for its decision not to intervene in the grant of permission by Cumbria County Council for a new deep coking coal mine, one might have expected some progress of the Bill to mitigate that criticism. Not so.

The failure of the Environment Bill to proceed is all the stranger given the emphasis being placed on the importance of the COP26 in Glasgow later this year. Whilst the UK’s goals on climate change are distinct from the Environment Bill, the commitments on the former might be viewed as somewhat hollow against the failure to progress the former.

One has to hope that as the vaccination programme takes effect, the controlling minds of Government will be able to refocus efforts onto the Environment Bill.

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