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Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Nicholas Ostrowski consider some environmental predictions for 2021, whether an Environmental Impact Assessment should consider ‘indirect’ emissions and a further case dealing with the complexities of assessing bathing water quality.

Environmental Law Predictions for 2021

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

The Office for Environmental Protection

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

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

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

Export of waste abroad

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

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

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

Lawyers forced to rethink their carbon footprint

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

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

Should an Environmental Impact Assessment consider ‘indirect’ emissions?

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

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

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

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

When bad marks don’t count (continued)

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

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

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

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

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

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

To keep up-to-date follow us on Twitter @6pumpcourt or click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk

Environmental Law News Update

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

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

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

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

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

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

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

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

Our January predictions

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

And finally…

Something In The Air

(Thunderclap Newman, 1969)

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

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

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

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

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

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

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

Merry Christmas!

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

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

To keep up-to-date follow us on Twitter @6pumpcourt or click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Mark Davies consider the fatal accident at Avonmouth, publication of the UK’s Sixth Carbon Budget and consultation on the Environment Agency’s charges for a UK Emissions Trading Scheme.

Fatal Accident at Avonmouth

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

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

UK’s Sixth Carbon Budget Published

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

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

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

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

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

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

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

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

The letter from the CCC may be found here

The Budget may be found here

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

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

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

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

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

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

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

The consultation can be found here

To keep up-to-date follow us on Twitter @6pumpcourt or click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk

Environmental Law News Update

In this latest Environmental Law News Update, Gordon Wignall, Christopher Badger and Mark Davies consider the fast-tracking of a climate case by the EctHR, challenges to Environment Agency decisions post-2020 and an update on the Friends of the Earth and Shell litigation.

ECtHR fast-tracks youth climate case

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

The complaint alleges:

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

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

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

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

Challenges to Environment Agency decisions post-2020

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

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

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

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

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

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

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

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

Friends of the Earth and Shell litigation: Update

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

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

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

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

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

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

To keep up-to-date follow us on Twitter @6pumpcourt or click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk

Environmental Law News Update

In this latest Environmental Law News Update, Gordon Wignall, Christopher Badger and Mark Davies consider clarification on the sentencing guidelines from the Court of Appeal, measures to tackle misleading environmental claims and the announcement of the Government’s Ten Point Plan for a Green Industrial Revolution.

Court of Appeal reminds us: they are guidelines, not tramlines

In R v Lawrence [2020] EWCA Crim 1465, the Court of Appeal took the opportunity to reiterate that the Definitive Guideline for sentencing environmental offences is not a statute and can, where cases merit it, afford a great deal of flexibility to the sentencing Judge.

In this case, the appellant was the operations director and technically competent person of a waste business that suffered multiple waste fires. He had pleaded guilty to four offences, two in relation to the first fire in December 2012 and two in relation to the second fire in June 2013.

The Judge at the sentencing hearing found that culpability and harm for the first fire was negligent category 3. A small fine was imposed and no complaint was made about this.

For the second fire, the Judge found that culpability was highly reckless due to the risks that must have been apparent after the first fire. He also found that all five category 2 harm criteria were met, albeit that there were no category 1 features. He did find that the cumulative effect of the category 2 features had the potential to raise the overall harm into category 1 and that there were multiple aggravating features. The sentence imposed was 9 months imprisonment, suspended for 2 years and 180 hours of unpaid work.

The central submission of the appellant was that the Guideline did not permit the Judge to aggregate the features of the offence to the level of a category 1 harm case.

The submission was roundly rejected. The Court found that there were ample findings made by the Judge to justify finding harm at the top of category 2 with other features available in the offending to aggravate the offending well beyond that. The Guideline explicitly states that “in some cases, having considered these [aggravating] factors, it may be appropriate to move outside the category range”.

Perhaps more importantly, the Court then went on to state that irrespective of this wording, no one committing such offences should think that multiple aspects of his/her wrongdoing, however grave, will receive no punishment because they all fall within one category of harm. Despite this element of hyperbole, the Court of Appeal rightly drew attention to multiple authorities that stress that it is not sensible to construe the Guidelines as if they are a statute. Whilst not new, it’s a helpful reminder that sentencing is still a matter of judgement and discretion, not simply a tick box exercise.

Misleading environmental claims

On 2 November the CMA (Competition and Markets Authority) announced that it was commencing an investigation to better understand how consumer protection legislation can be used to tackle false or misleading environmental claims that affect consumers.

The end result of the investigation appears to be a broad one, both “to produce guidance for businesses on how they can be transparent in the way that they market goods and services in relation to any claims made about environmental impact”, as well as to provide advice to government.

Most regulation about claims as to the environmental benefits of particular goods and services are enforced by way either of trading standards regulations (see the Consumer Protection from Unfair Trading Regulations 2008) or by means of the broadcasting or non-broadcasting codes of the Advertising Standards Authority.

Defra provided relevant guidance in its Green Claims Guidance dated February 2011.

The CMA has an important role overseeing consumer protection issues, and it should be noted that on 5 May 2020 the EU’s Consumer Protection Co-Operation Regulation ((EU) 2017/2394) was given effect by means of the Consumer Protection (Enforcement) (Amendment etc.) (EU Exit) Regulations 2019/203, giving the CMA enforcement powers in respect of digital representations made on-line (by amendments to the Enterprise Act 2002).

The CMA welcomes responses from consumers and business to: misleadinggreenclaims@cma.gov.uk.

https://www.gov.uk/government/news/cma-to-examine-if-eco-friendly-claims-are-misleading announces: “the CMA intends to publish guidance for businesses next Summer to help them support the transition to a low carbon economy without misleading consumers. At this early stage, the CMA has not reached a view as to whether or not consumer protection law has been broken. However, if it finds evidence that businesses are misleading consumers, then it will take appropriate action.”

Government announces its Ten Point Plan for a Green Industrial Revolution

At 22:30 on Tuesday this week, the Government announced its Ten Point Plan for a Green Industrial Revolution. It is described as an ambitious (when are they not?) plan providing a blueprint covering clean energy, transport, nature and innovative technologies that will allow ‘the UK to forge ahead with eradicating its contribution to climate change by 2050’.

It is hoped by the Government that the plan will create up to 250,000 highly-skilled green jobs in the UK (by the mobilisation of £12 billion in government investment), and three times as much private sector investment, by 2030.

The Ten Points are:

  1. Offshore wind: quadrupling our current output to 40GW by 2030, supporting 60,000 jobs;
  2. Hydrogen: 5GW of low carbon hydrogen production by 2030;
  3. Nuclear: development of small and advanced reactors, supporting 10,000 jobs;
  4. Electric vehicles: transforming our national infrastructure to better support electric vehicles [curiously the announcement does not mention the ban on petrol and diesel cars having been brought forwards];
  5. Public transport: making cycling and walking more attractive ways to travel and investing in zero-emission public transport;
  6. Jet Zero and greener maritime: support for research projects for zero-emission plans and ships;
  7. Homes and public buildings: making our homes, schools and hospitals greener, warmer and more efficient, creating 50,000 jobs and installing 600,000 heat pumps every year by 2028;
  8. Carbon capture: capturing 10MT of carbon dioxide by 2030;
  9. Nature: protecting and restoring our natural environment, planting 30,000 hectares of trees every year; and
  10. Innovation and finance: making the City of London the global centre of green finance.

As with many of the Government’s recent announcements in respect of the environment (the 25 Year Plan, the Green Homes Grant Scheme, etc.) the Ten Point Plan is another step in the right direction in terms of addressing climate change and meeting our reduction targets, but that is, sadly, all it is: another step in the right direction. It is not, yet, a blueprint for achieving Net Zero.

The announcement may be found here. If you were curious as to why the Plan was announced at 22:30 on a November Tuesday, it is because it preceded a press conference on the Wednesday. The press conference was nowhere near Four Seasons Total Landscaping (in case you missed it, see here).

To keep up-to-date follow us on Twitter @6pumpcourt or click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Gordon Wignall and Christopher Badger consider the NCC’s Final Response to the 25 Year Environment Plan Progress Report, the legal arrangements between water companies and local authorities for payment for the supply of mains water to tenants, and funding shortages – the effect on the Environment Agency, inspection, enforcement, end-of-waste and the new Office for Environmental Protection.

Funding shortages – the effect on inspection, enforcement, end-of-waste and the new Office for Environmental Protection

The Defra press office maintains a blog used to respond to media stories (“Defra in the media”). 

This week, this Gov.uk blog has been busy (26 October, The Times – critical of the Environment Agency’s prosecution of regulatory breaches, the decline in site inspections, the alleged failure to tackle farming-related river pollution incidents involving slurry and fertiliser; 28 October, Edinburgh Evening News (Friends of the Earth Scotland) – fears over environmental standards in future trade deals; 28 October, BBC – questions over the independence of the new Office for Environmental Protection; and 29 October, The Times – alleged failures adequately to monitor and regulate unconsented sewage overspills into the Thames at Mogden).

Inevitably, even absent current circumstances, a key issue is funding. 

In the 26 October blog, the EA Chair herself was quoted as saying: “ultimately we will get the environment we pay for. A core part of that is funding the Environment Agency properly. The government has an opportunity to do that in this year’s spending review. We hope it will.”

A frequent casualty of retrenchment by the EA has been the Definition of Waste panel and related services (such as the demise of the Wrap Quality Process assessments and their accompanying Regulatory Position Statements, which had the effect of protecting operators from the risk of enforcement). 

With effect from 17 September 2020, it was announced that the Definition of Waste panel will not be offering any opinion as to whether a product has achieved end-of-waste until 1 January “at the earliest”. 

This will be hard on operators in the circular economy, especially since they are likely to be promoting new types of products. The closure of the panel leaves them more at risk of the discretionary decisions of local officers, who will have to make judgments as to the boundaries of the Environmental Permitting Regulations, including operations which are exempt, excluded, or which fall within the scope of current Regulatory Position Statements.

The closure of the panel may also amount to lost opportunities, since after the end of the implementation period, there may also be some flexibility outside the EU to fashion an updated definition as to what constitutes end-of-waste.

The devolved governments offer no better prospect than in England. No end of internal scientific data and legal reassurance will provide the reassurance which a regulator might provide (which has itself been guarded in scope).

Defra’s response to questions about the independence and vigour of the Office for Environmental Protection, which is intended in practical terms to make up the vacuum left by the absence of the EU Commission, includes the promise that “the OEP’s budget will be ring-fenced for each spending review period” (Defra media blog, 28 October).

The spending review in place from 2019 was for one year (2019-2020) and the next spending round will also only be for one year (2020-2021).  This is another area in which the words of the Chair of the EA will ring true: “ultimately we will get the environment we pay for”.

NCC’s Final Response to the 25 Year Environment Plan Progress Report

On 26 October, the Natural Capital Committee (‘NCC’) published its ‘Final Response to the 25 Year Environment Plan Progress Report’.

Previously the NCC has been fairly scathing of the Government’s ‘progress’, citing a lack of appropriate metrics or baseline to be able to measure changes in the environment, a selective approach to results that risked ignoring overall declines in the environment and highlighting the lack of strategic approach by Government to achieve coherent improvements.

This Final Report conducts its own assessment of the state of natural capital. It concludes, starkly, that the Government is not on course to achieve its objective to improve the environment within a generation. Using a red, amber, green analysis, none of the seven natural assets were rated green. The report is 486 pages long, so here is our best effort at summarising the conclusions:

Atmosphere – Amber.

While there has been an overall reduction in pollution levels in recent years, in some urban areas levels are still resulting in significant health impacts. One key recommendation is for clearer air quality targets to be set out in the Environment Bill.

Freshwater – Red.

Poor progress. No surface water bodies met the criteria for ‘good’ chemical status in 2019 and only 14% of rivers met the ‘good’ ecological status criteria. It is estimated that 22% of water put through the supply system is lost through leaks.

Marine – Red.

There is very limited data on marine assets. The Government needs to urgently address data gaps in order to assess the extent and condition of marine natural capital assets. Trends for some physical and chemical parameters since 2011 indicate drastic climate-driven change in the marine environment.

Soils – Red.

Soil degradation through erosion, intensive farming and development is estimated to incur losses between £0.9 and £1.4 billion per year for England and Wales, mainly linked to the loss of organic content of soils at 47% of the total cost. It is estimated it takes 100 years to form 1cm of topsoil. The NCC calls for an urgent national survey to provide data on the extent and condition of soils.

Biota – Red.

Species which are critical for ecosystem function such as pollinators show dramatic declines between 1980 and 2016. For example records from 365 pollinating bee and hoverfly species across a number of 1km grid squares in the UK indicate a 30% decline in occurrence between 1980 and 2016.

Land – Red.

The Biodiversity 2020 Strategy target is for 90% of priority habitats to be in a ‘favourable’ or ‘unfavourable recovering’ condition. However, the figure has plateaued for the last 4 years at around the 70% mark. The Government will not hit its target and there should be a clear plan on how to deliver on existing targets.

Minerals and resources – Amber.

Household recycling rates have plateaued since 2013 at around 44%. Targets need to be set to achieve higher recycling rates. Active illegal waste sites increased from 556 in 2013/14 to 685 in 2018/19. There were 1,070,000 fly tipping incidents in 2018/19.

Council finds itself piggy-in-the-middle for water charges

Last December in Update 121 we reviewed the decision of Morgan J. in Royal Borough of Kingston-upon-Thames v Moss [2019] EWHC 3261 (Ch) concerning the legal result of arrangements between Thames Water and Kingston for bulk payment for the supply of mains water to the Borough’s tenants. In short, the unintended consequence was that, by operation of the provisions of the Water Resale Orders 2001 and 2006, the Borough had to pass on to its tenants the benefit of some of the allowances and commissions negotiated between it and Thames Water. The Borough’s appeal to the Court of Appeal has just been dismissed: Royal Borough of Kingston-upon-Thames v Moss [2020] Civ 1381. As Lewison LJ put it, whilst the Borough as a local authority had statutory power to agree with an undertaker to act as the undertaker’s agent for the collection and recovery of water and sewerage service charges from individual occupiers (in which case it could have charged and recovered the full charges and retained any discounts for itself), the question was whether that is what it had in fact done. The Court of Appeal held that it hadn’t. It had made itself the supplier by resale to its individual tenants.

On appeal the Borough tried to rely upon the nature of its pre-privatisation arrangements with the Thames Water Authority as an aid to interpretation of its later agreements with Thames Water. That was held to go well beyond acceptable bounds of contractual interpretation. The Court of Appeal was particularly struck by the fact that the post-privatisation agreements with Thames Water called the Borough “the Customer”, who was to “pay for the Services”, which expressions were found to mean what they said.

The ramifications of the controls imposed by the Water Resale Order upon the multifarious arrangements that can exist in situations of multiple occupation are by no means confined to the context of tenants of local authorities. The outcome of this litigation will fix the proper interpretation of many other arrangements, quite possibly with equally unintended results and economic consequences.

The judgment of Lewison LJ (with whom the other two judges simply agreed) is worth reading just for the pleasure of it. It is a masterpiece of clarity and a masterclass in contractual interpretation.


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Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and William McBarnet consider amendments to the Environment Bill, sludge disposal regulation and government commitments to a more comprehensive Net Zero Strategy.

Government amendments to the Environment Bill

Rebecca Pow, on 20 October, published a prospective amendment to the Environment Bill to permit the Secretary of State to publish guidance on the Office for Environmental Protection’s enforcement policy and functions. Under the proposed amendment, the OEP “must have regard to the guidance” in preparing its enforcement policy and exercising its enforcement functions.

Green groups are concerned, as the ability of the OEP to hold public authorities to account has been heralded as the hallmark of this world-leading environmental body and now it looks increasingly as if the Government intends to erode away the OEP’s independence.

As if to anticipate the controversy that this amendment might cause, the Government’s policy paper reads:

“The proposed amendments also include a power for the Secretary of State to issue guidance to the OEP regarding its enforcement policy. Given that the Secretary of State is ultimately responsible to Parliament for the performance of the OEP, this power will give them the opportunity to provide guidance if they deem it necessary. However, this does not constitute a power of direction over the OEP, and the SoS will need to exercise this power consistently with their duty to have regard to the need to protect the OEP’s independence.”

On one view, the phrase “have regard to” is a relatively small hurdle for the OEP to overcome. However, a great deal will depend on the wording of the Guidance published by the Secretary of State, which is capable of amendment or revision at any time. It does feel increasingly as if the OEP will not be the world-leading environmental body that we have been promised.

Certainly proposed amendments published the next day give the feeling of a Government concerned at the prospect of an authoritative OEP. These reemphasise a need for the OEP to set out in its enforcement policy how it will determine how a failure to comply with environmental law is serious and limit the bringing of an environmental review to those cases that meet that threshold – matters that arguably are unnecessary. They also appear to remove the opportunity for the OEP to seek an environmental review in the Upper Tribunal. In the view of the author, this would be a lost opportunity. If ever there were a moment to establish a cost-effective efficient environmental tribunal system, surely it is now.

The proposed amendments can be found here: https://publications.parliament.uk/pa/bills/cbill/58-01/0009/amend/environment_rm_pbc_1020.pdf

And here: https://publications.parliament.uk/pa/bills/cbill/58-01/0009/amend/environment_rm_pbc_1021.pdf

Plumbing the depths of sludge disposal regulation

With a timing that is bound to stoke the fire behind both the Good Law Project’s proposed judicial review (see Blog issue 147) and the Sewage (Inland Waters) Bill 2019-21 (see Blog issue 149), the Agency published last week its report on the environmental performance of water and sewerage undertakers during 2019 As the Chair puts it in her foreword “today is not the day for whataboutery”. Err … Yes, quite (??).

Essentially progress in environmental performance has stalled in a number of ways detailed in the report and already widely reported. However, the passage which particularly caught our eye concerns a topic which we have addressed before and seems, as it were, in a manner of speaking, to be coming to the surface, namely sewage sludge (see Blog issues 132 and 143). The Agency states: “we have suspended the sludge disposal and use metric. Instead we include an update on our compliance assessment approach”. A deeper read reveals that this was because the Agency discovered “practices that were difficult to assess for compliance”. Its response, as well as “suspending the metric”, has been to publish a “time limited” regulatory position statement with conditions enabling the supply, storage and spreading of sewage sludge “containing other materials” whilst a “revised metric” is developed for future performance assessments.

The position statement was in fact published in January 2020 and lasts until 31 January 2021 (a date which seems likely to be extended). If the conditions in it are followed, companies can, without fear of enforcement, supply or spread sewage sludge containing the other materials specified in it. These include sludges from a widened range of physico-chemical treatments, off-specification compost, digestate from anaerobic treatment of animal and vegetable waste and sludge composted with biodegradable non-wastes. Whilst the position statement is confined to circumstances where “your activity does not, and is not likely to, cause environmental pollution or harm human health”, this plainly constitutes an instance where, in order to ensure the continuation of the vital business of sewage disposal, the letter of regulation must bow to practical expediency and play catch-up with what is actually happening on the ground (literally).

Disposal is not confined to domestic product. ENDS reports that in 2019 the Netherlands’ largest sludge incineration plant (yes, you can burn the stuff) closed four of its six incinerators. The surplus sludge has been shipped to … the UK.

Interestingly, a recent decision of the European Court of Justice held that sewage sludge incinerated for energy recovery purposes should not be considered as waste if certain end-of-waste conditions were already met before its incineration (Sappi Austria Produktions-GmbH & Co KG and Wasserverband “Region Gratkorn-Gratwein” v Landeshauptmann von Steiermark (Case C-629/19) ECLI:EU:C:2020:824 (14 October 2020)).

Government commits to comprehensive Net Zero Strategy

The UK Government has confirmed in the 156 page paper Government Response to the Committee on Climate Change’s (“the CCC”) 2020 Progress Report that it will bring together its plans to tackle climate change in an over-arching Net Zero Strategy, ahead of the COP26 climate summit in November 2021. The stated aim of the Strategy is to raise ambition and to set out the Government’s vision for transitioning to a net zero economy by 2050.

The Government’s Response is wide-ranging and addresses topics such as ‘Building Back Greener’ which sets out the UK’s approach to ensuring a green recovery from Covid-19. As well as the actions taken / required in sectors identified in the Clean Growth Strategy (such as Power and Transport) in order to achieve the UK’s emission goals. The CCC has welcomed the fact that the  Government has recognised the scale of the change needed, including the role of citizens and the need for an equitable transition.

The CCC’s 2020 Progress Report highlighted that the Government has only fully achieved two of the 31 milestones set out in the 2019 Progress Report and that progress is generally off-track in most sectors, with only four out of 21 indicators on track in 2019. This represented no change on the previous year where the same four out of 21 indicators were met. Although 14 indicators had moved in the right direction, the remaining 7 were worse than the previous year.

The conclusion must be that although the UK has made significant progress in reducing emissions (they were 44% below 1990 levels in 2018) and has met previous carbon budgets (2008-12, 2013-17; the UK is also on track to meet the 2018-22 budget) an increase in ambition is still required (the UK is not on track to meet the 2023-27 or 2028-32 budgets). The Net Zero Strategy will presumably seek to bring increased coherence to the various schemes underway.


To keep up-to-date follow us on Twitter @6pumpcourt or click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Mark Davies consider the new Sewage (Inland Waters) Bill 2019-21, proposed regulations on ecodesign requirements for household appliances and refrigeration and the launch of the Green Homes Grant scheme.

The Sewage (Inland Waters) Bill 2019-21

This Private Member’s Bill was introduced by the Rt Hon Philip Dunne MP on 5 February 2020. The draft bill and explanatory notes were published yesterday and the Bill will receive its second reading in the House of Commons on 13 November 2020. It is described as “A Bill to place a duty on water companies to ensure that untreated sewage is not discharged into rivers and other inland waters; and for connected purposes”.

The substantive provisions of the Bill constitute a concise three-and-a-half pages of text enacting two sections. Its effect would be to introduce into to the Water Industry Act 1991 a new Chapter 1ZA, comprising four new sections 17ZA to 17ZD. These petite parameters belie the aim and reach of the Bill, which might be described as the winding-back of the consequences of the last 200 years or so from the adoption in the United Kingdom of the water carriage system of sewage disposal. Shortly put, that led to the creation of a system of combined sewers receiving and admixing both foul water and rainwater, all of which was then carried and discharged through the same pipes into inland and coastal waters, effectively turning those waters into parts of the system itself as a natural network of pipes and receptacles. The rainwater element being hugely variable and unpredictable, the system had to provide managed and designed relief from surcharging and did so via the now notorious combined sewer overflows (CSOs), of which we have written recently, see issues 140 and 142. In the latter article we noted the initial appearance of the Bill and speculated as to whether it would, as its short description suggested, seek to go further than the Urban Wastewater Treatment Directive in curbing discharges from CSOs altogether, without the present exclusion of “exceptional circumstances” (which, we noted, had seemingly occurred on some 200,000 known occasions during 2019).

The Bill in fact strikes a middle ground. At its heart is the proposed new section 17ZA(1): “A water company in England must take all reasonable steps to ensure that untreated sewage is not discharged into inland waters.” This is fleshed out by a non-exhaustive list of reasonable steps in section 17ZB, including the maintenance of a register of CSOs “and any other sewer catchment assets from which discharges of treated or untreated sewage may be made to inland waters” (which would thus seem to catch all continuous discharges too), the biannual publication of reports on their “operational status”, progressively improved monitoring of performance, and planning to ensure the introduction of additional biological treatment at wastewater treatment works and that “reliance upon CSOs is progressively reduced”.

Section 17ZC would impose annual reporting duties upon the Secretary of State, including an indication of what steps it is proposed to take to achieve fulfilment of the s. 17ZA duty. This identifies and elaborates upon five broad types of measures, namely:

  • measures intended to separate surface water and sewage collection – s. 17ZC(3)
  • measures intended to reduce the volume of sewage produced by domestic properties – s. 17ZC(4)
  • measures to reduce the polluting content of sewage – s.17ZC(5)
  • measures intended to reduce the impact of CSO discharges – s.17SC(6)
  • measures intended to promote improvements in bathing water quality in inland waters – s. 17ZC(7).

These repay full reading. The attempt to gather together and strengthen the various strands of possible solutions is laudable, as is the imposition of rather more specific duties on the companies, the Secretary of State, the Environment Agency and Ofwat than are to be found in current legislation.

The Explanatory Notes state that the Bill requires neither a Money Resolution (the only cost to Government is that of the reporting) nor a Ways and Means Resolution (“because it does not authorise new taxation or similar charges on the people”). The cost of implementing its aims would however necessarily be extremely high and inevitably funded largely or entirely by increases in water and sewerage service charges, which would certainly be politically unpopular. It may nevertheless be that the time has come for facing up to the chronic problems on which the Bill shines a light and its Parliamentary progress will be watched with interest. It already enjoys the support of The Rivers Trust, Surfers Against Sewage, The Wildlife Trusts, Blueprint for Water, The Angling Trust, The Chalk Aquifer Alliance and Salmon and Trout Conservation.

Government consults on draft Ecodesign and Energy Labelling Regulations 2021

The Government is consulting on proposed regulations to update ecodesign requirements for electric motors, household washing machines and washer-dryers, household dishwashers, household refrigeration and electronic displays as well as regulations to introduce ecodesign requirements for welding equipment and commercial refrigeration and energy labelling requirements for commercial refrigeration.

Goods such as washing machines and televisions, which have an impact on energy consumption whether in use or in standby mode, currently account for about 55% of the UK’s total non-transport energy use.

However, the Government isn’t proposing at this time to exceed the requirements that the UK agreed at EU level. Household washing machines and washer-dryers placed on the UK market are subject to existing ecodesign and energy labelling regulations, Commission Regulation (EC) No. 1015/2010 and Commission Regulation (EC) No. 1061/2010. In January 2019, the UK together with other Member States, voted in favour of updating these Regulations. Household dishwashers are similarly regulated. The draft 2021 Regulations simply reflect the agreement made by the UK as a Member State in January 2019.

The Government states that it expects these draft regulations to save 15.8 TWh of electricity by 2050 in the domestic sector, the equivalent of up to a £3 billion reduction on household energy bills. Whilst this sounds impressive, given that there are just under 28 million households in the UK, the author’s rough calculations appear to identify that this is a saving of approximately £3.50 a year for each household, every year from now until 2050.

It is proposed that there will be a further review no later than 7 years from the application dates of the Regulations.

Interestingly, the impact assessment indicates that the Government did not consider adopting more stringent ecodesign requirements than that agreed with the EU. An example of ‘equivalence’ in action, but it doesn’t suggest an overarching desire to fly a green flag.

The deadline for responding to the consultation is 11 November 2020. The consultation itself can be found here

The Green Homes Grant: Hit or Miss?

To much fanfare (at least in some circles…) the Green Homes Grant scheme was launched on 30 September. Chancellor Rishi Sunak said of it:

“We promised to support jobs and protect the environment – and the Green Homes Grant delivers on this. We’re giving homeowners, landlords and local authorities the funding they need to hire local tradespeople and make our homes more energy efficient. By supporting the green van men and women, we’ll save money, save jobs and save the planet.”

Quite the claim.

Alok Sharma, Secretary of State for Business, Energy and Industrial Strategy (BEIS being the Government department responsible for the Green Homes Grant) said this:

“Our plan to upgrade the nation’s buildings and help build back better is good news for jobs, the environment and people’s back pockets, as we reduce emissions and help cut energy bills.”

“I urge everyone to visit the Green Homes Grants website to see how they can make the most of this fantastic scheme.”

Our intrepid bloggers have been to the Green Homes Grant website to see how the Government’s claims stack up.

The website, www.simpleenergyadvice.org.uk, is pleasingly easy to use and takes a user through a series of questions to determine eligibility (the first question is ‘Is this property in England?’ – spoiler alert, if you select ‘No’, you’re not eligible).

If you own a property in England (in which you live, or of which you are the landlord) and that property isn’t a new build, you may be eligible for a voucher to fund up to 2/3 of the cost of hiring tradespeople to upgrade the energy performance of your home (up to a maximum of £5,000 or £10,000 if any member of your household is in receipt of certain benefits).

So far, so good. Assuming you meet those criteria, the website then requires answers to a series of questions concerning your property (no. of floors, current type of roof insulation, wall insulation, etc.)

Having complete those steps, the website churns out what your options are under the Green Homes Grant (for which it uses the acronym, GHG… which it’s difficult not to read as Green House Gases…) and herein lies the problem with the scheme: certain measures under the scheme are primary (solid wall, cavity wall, under-floor, loft, flat roof, pitched roof, room in roof and park home insulation, as well as air source and ground source heat pumps, solar thermal, biomass boilers and hybrid heat pumps) whereas others are secondary (draught proofing, double or triple glazing where replacing single, energy efficient replacement doors, hot water tank thermostats and insulation and heating controls) and you can only get at the secondary measures if you have used one of the primary measures, and then only for the same value as the primary measure.

So, for example, if you live in a flat in Central London that is well insulated and has a modern boiler, but that only has single glazing, your only primary option may be an air source heat pump, which depending on the flat may be impractical. However, you cannot access any money for double or triple glazing unless you make use of a primary option… which isn’t really an option.

The verdict on the Green Home Grant scheme has to be that it’s a hit. Many home owners and landlords will be able to take advantage of the benefits it offers, and this no doubt will support jobs and, hopefully, reduce carbon emissions, but one is left wondering why the Government hasn’t seen fit to structure the scheme so that the minority of home owners or landlords who won’t be able to take advantage of a primary measure, are permitted to use that voucher for a secondary measure instead.

A hit, but slightly wide of the bullseye.

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 considers the new Jet Zero Council, pledges to reverse biodiversity loss and the extension of the Environment Agency’s Covid Regulatory Position Statements.

New Jet Zero Council

The new Jet Zero Council has launched with the aim of zero-emission flight by 2050.

The Group is intended to focus on developing UK capabilities to deliver net zero-emission commercial flight by developing and industrialising zero-emission aviation and aerospace technologies, establishing UK production facilities for sustainable aviation fuels and commercialising the industry by driving down production costs and developing a co-ordinated approach to the policy and regulatory framework needed to deliver net zero aviation by 2050.

The Group will be chaired by Grant Shapps MP, Transport Secretary and Alok Sharma MP, Business Secretary and has amongst its members representatives of some of the key aviation players, including British Airways and Virgin Atlantic, Rolls Royce and Airbus, although there doesn’t appear to be a representative from RyanAir.

This is consequently billed as a Government and Industry partnership, with the aim of providing advice on ambitions for clean aviation. The primary focus will be on reducing carbon emissions, while taking into account wider sustainability issues. There appear to be two potential routes: either the development of electric or hydrogen based propulsion technologies leading to zero emission aircraft or combining low emission aircraft with sustainable aviation fuels that are not based on the conventional fossil-derived kerosene. However, don’t rule out that the Government may still attempt to use an offsetting scheme as a means of claiming zero-emission flight.

The Group’s members and its key aims can be found here

Countries pledge to reverse biodiversity loss

World leaders have pledged to clamp down on pollution, embrace sustainable economic systems and eliminate the dumping of plastic waste in oceans by the middle of the century as part of “meaningful action” to halt the destruction of nature on Earth.

Ahead of a UN Summit on Biodiversity that was held virtually from New York on 30 September, the political leaders of 64 countries including the UK signed the ‘Pledge for Nature’ comprising of 10 commitments for urgent action over the next 10 years. These include:

1) Putting biodiversity, climate and the environment as a whole at the heart of any Covid-19 recovery strategy;
2) Committing to a global biodiversity framework with robust goals and targets;
3) Addressing the various environmental challenges in an integrated and coherent way;
4) Moving to sustainable food systems;
5) Reaffirming the Paris Agreement;
6) Ending environmental crimes;
7) Mainstreaming biodiversity into relevant sectoral and cross-sectoral policies;
8) Integrating a ‘One-Health’ approach into all relevant policies and decision-making processes;
9) Strengthening all financial and non-financial means of implementation;
10) Basing the design and implementation of policy on science.

Highlights of the Summit included Jair Bolsonaro attacking international greed over the Amazon rainforest and emphasising that Brazil intended to make full use of the huge wealth of resources available to it in its territory and Xi Jinping committing China to reach carbon neutrality by 2060 and ensuring the China’s greenhouse gas emissions peak by 2030.

Greta Thunberg was not convinced, tweeting:

“Every few years, governments gather to make solemn promises about the action they will take to defend the living world, then break them before the ink is dry. Must read to understand the laughable, cynical empty promises and “pledges” still taking place.”

EA extends Covid Regulatory Position Statements

The Environment Agency has extended some Regulatory Position Statements as part of its response to Covid-19. This includes (amongst others):

  • Monitoring emissions from some environmental permitting activities: PRS C20 (to be withdrawn on 31 January 2021 unless extended by the EA);
  • Reporting for installations, radioactive substances and waste permits: RPS C21 (to be withdrawn on 31 January 2021 unless extended by the EA);
  • Social distancing when signing and handing over waste transfer and consignment noted in person: RPS C8 (to be withdrawn on 31 March 2021 unless extended by the EA).

Ordinarily, complying with the Regulatory Position Statements mean that the Environment Agency will not normally take enforcement action provided that the activity meets the relevant description, the conditions are complied with and the activity does not or is not likely to cause environmental pollution or harm to human health. It should be noted that some of the Regulatory Position Statements require prior written approval from the Environment Agency before they can be relied upon.

The Environment Agency has also made use of virtual inspections of permitted waste sites as part of its efforts to check those sites are complying with regulations. The Environment Agency continues to emphasise that it expects operators to take all reasonable steps to comply with regulatory requirements using contingency plans to help them comply.

The updated Regulatory Position Statements can be found here

To keep up-to-date follow us on Twitter @6pumpcourt or click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Nicholas Ostrowski consider compliance with the Water Framework Directive, Law Commission proposals on reforming the confiscation regime and new proposals to hit net zero from the Climate Assembly UK.

A [watercourse in] Good Heart These Days Is Hard To Find

To comply with the Water Framework Directive, all surface water bodies in the UK must attain at least “Good” status by a date which has been extended from 2015 until 2021. It has recently been widely reported in both the specialist and popular press that in 2019 not a single one enjoyed Good status (which 14% of rivers, and a greater proportion of other water bodies, were able to achieve in 2016), an outcome which may be part of the explanation of why the 2019 figures have only just now been released. Nor is there any immediate prospect of improvement, and thus compliance, by either the 2021 deadline or the longest possible extension to 2027 (if forthcoming).

A major obstacle to compliance is the stringent “one strike and you’re out” or “one out, all out” nature of the classification system i.e. that if a watercourse fails to satisfy any one of the ecological or chemical criteria stipulated for the attainment of a particular status then it fails to achieve that status. A bit like having to get a minimum number of marks for each question set in an exam, instead of pinning all your hopes on your best three answers. If some cumulative pointing system were adopted instead, as the Environment Agency through its chief executive Sir James Bevan has proposed, then the pass rate would soar – in the case of rivers, the 2016 rate of achievement of Good status would have been 79%. The astute reader will, of course, have realised that this remarkable change of fortune would not be shared by the watercourses themselves or their fauna and flora – the dirty old rivers would just keep rolling along with exactly the same contents as before, including the chemicals from sewage, industry and agriculture which seem to be the principal problem (exacerbated by over-abstraction).

As well as a joint letter of protest from 18 NGOs, enter from stage left Feargal Sharkey OBE, former lead singer of The Undertones, a role which he followed with a successful solo career and then a stint as CEO of Music UK, the consortium of music copyright collection societies. Not content with all that, he is also a keen fly fisherman and has taken up the cause of the rivers and joined forces with the Good Law Project to seek judicial review of the failures of Defra and the Environment Agency to discharge their respective duties towards the aqueous environment. His expectations may be high, but he can’t blame it on his youth any more, and is certainly past the age for giving them both a good teenage kicking.

Could all of this have led to the recent summoning by the Environment Minister of the chief executives of 15 water and sewerage undertakers to “challenge” them to improve their environmental performance? And the announcement from Defra that it has earmarked over 700 storm overflows for investigation and over 200 overflows for improvement during the AMP 7 period (2020-25)?

Spot the songs: there are five allusions to four different songs in the above article. The first person to spot them all will be entitled to a free bottle of champagne. T&Cs below apply.

[Offer open for 7 days only, starting Thursday 24th September. Champagne must be collected and consumed on the premises of the Edgar Wallace Public House between the hours of 10pm and midnight. Correctly-fitted face mask must be worn throughout. Open to under-18s only].

Law Commission proposals on reforming the confiscation regime

£2,065,303,000. That is the amount of money which defendants have been ordered to pay under the Proceeds of Crime Act 2002 (‘POCA’) but which remains outstanding.

On any level that is a staggering amount of money and this unenforced debt as well as the large numbers of appellant POCA cases the senior courts have to deal with has led to a perception that the confiscation regime is ineffective and the legislation is too complex.

As practitioners working in criminal, planning or environmental law will know (particularly in waste cases), the threat of POCA proceedings is an important weapon in the prosecution’s armoury and does frequently result in large, sometimes eye-wateringly large, confiscation orders being made against defendants. The Law Commission has recently released a consultation on the POCA regime which, if enacted by Parliament, may have a significant impact on POCA proceedings in planning and environmental cases (https://www.lawcom.gov.uk/project/confiscation-under-part-2-of-the-proceeds-of-crime-act-2002/).

The Commission’s proposals are best described as ‘evolution not revolution’.

First, there are sensible proposals to simplify the timing in which confiscation proceedings take place.

Secondly, there are proposals to amend the way in which the system calculates the ‘benefit figure’ and the ‘recoverable amount’. The most important element of this change is a proposed amendment to the legislation to permit the prosecution and the court to disapply the ‘lifestyle assumptions’. These assumptions apply in certain cases (normally those where the offending has gone on for a long period) and require that a defendant’s benefit from crime for the purposes of calculating the confiscation order is not limited to what they have obtained from the offences for which they appeared before the court but is instead based on any benefit obtained over that period.

Finally, the Commission makes a number of proposals which address the way in which confiscation orders are enforced. Most strikingly there is a proposal that if a Defendant does not pay a confiscation order and is imprisoned then they should not be released unconditionally at the expiry of half the sentence (as they are currently) but should instead be released on licence subject to conditions which facilitate the enforcement of the confiscation order, and may be returned to custody during the licence period in the event that those conditions are breached.

For environmental law practitioners, the proposals to amend the way in which the ‘benefit figure’ is calculated will be of most interest. At the moment defendants in waste proceedings and planning cases often face confiscation proceedings on the basis that because the offences continued for some time the offences are ‘lifestyle’ offences and all the money which has passed through their accounts over the specified period is criminal proceeds even if they appear to have nothing to do with the actual waste/planning offence. As some defendants in waste/planning offences are not career criminals who may be operating legitimate businesses alongside their criminal undertaking, if the Commission’s proposals are enacted by Parliament defendants may well start to invite the court to disapply the lifestyle assumptions. This may result in very significant reductions to confiscation orders in such cases.

Responses to the consultation are due by 18 December 2020.

Climate Assembly UK publishes proposals to hit net zero

The UK’s Climate Assembly, a body of people intended to reflect all walks of life across the UK, has published its recommendations on how the UK should reach net zero.

Key recommendations include:

  • Taxes on flying should increase as people fly more often and as people fly further;
  • People in different parts of the country should be offered different solutions to zero carbon heating;
  • The future for food, farming and land should centre around local produce and local food production, a change in diet to reduce meat and dairy consumption by between 20% and 40% and a “managed diversity” of land use;
  • Emissions labels for food and drink;
  • Governments and employers should take steps to encourage lifestyles to change to be more compatible with reaching net zero;
  • The transition to net zero should be a cross-political party issue and not a partisan one;
  • We should get to net zero without pushing our emissions to elsewhere in the world.

There was little support for policies that would change income tax or working hours or that would introduce personal carbon allowances. There was also little support for the use of fossil fuels with carbon capture and storage to be part of how the UK generates electricity, with members preferring green technologies such as wind and solar power.

Interestingly, the assembly did not pass proposals that favoured getting to net zero at an earlier date than 2050.

The report can be found here

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