In this latest Environmental Law News Update, Charles Morgan, Gordon Wignall and Brendon Moorhouse consider sewage discharges from overflows, the role of the Human Rights Act in the Silverdale Quarry case, and the need for climate policy to be built into the planning process.
You get what you [are believed to be prepared to] pay for or “Carry On Spilling”
Cost-benefit assessment (“CBA”) is important. There is no point in spending money for little or no benefit, and where there are competing approaches CBA provides a methodology for the ranking by efficacy of competing claims for limited funds or different proposed methods of achieving the same end. This is usually done by first reaching (in a complex manner) a financial valuation of benefits and costs and then expressing the ratio of one to the other and comparing the results. It is also possible to go further and to fix, either generally or in the context of a specific scheme, a minimum ratio which will be regarded as acceptable before a project is given the “green light” at all.
CBA is also a dark art. It might involve lots of numbers and calculations but it also involves lots of non-quantitative value judgments. It is therefore very susceptible to variability of outcome. This is why it is widely regarded as better suited to the task of relative ranking rather than absolute determination of the worth of a standalone project.
In the context of sewage discharges from overflows, the somewhat “fluffy” nature of CBA may be illustrated by a couple of examples. If you take the person in the street and lead them to their local watercourse and show them a nasty spill in progress, then ask them if they would be willing to pay the extra £5 per year on their water charges needed to stop it, they are quite likely to say “yes” (the “willing to pay” method of benefits valuation). But when you tell them that the same stretch of watercourse is afflicted by 20 similar overflows, each of which will need similar expenditure in rectification, they are likely to baulk at the cumulative cost. If you then tell them that they will also be asked to pay something in respect of many other watercourses of which they have no personal knowledge and in which they have little or no personal interest, but which have equally compelling needs, enthusiasm will wane further. So how do you value the benefits of the scheme? And how much relative value do you applying to each of several differing benefits, such as suitability for swimming, habitat preservation and amenity value? Etc, etc.
These tasks, among others, are attempted in the report “Storm Overflow Evidence Project” commissioned by the Storm Overflow Taskforce, which comprises representatives of sewerage undertakers, the Environment Agency, Ofwat, Defra and others. The scope of the project was to quantify the harm storm overflows cause inland rivers in England today and in 2050 and to estimate the comparative costs and benefits of doing various things to improve the existing infrastructure, which is euphemistically described as “pragmatic and affordable”. The report’s basic conclusion is that a zero spill solution would cost between £350 billion and £600 billion, whilst identifying cheaper, partial solutions. BUT: “taking into account social, public health and ecological benefits, none of the policies and scenarios examined are cost-beneficial when assessed nationally.” It acknowledges that much further work of assessment remains to be done. Its 120 pages contain a wealth of information about the various possible solutions and their pros and cons and the results of research into public attitudes (headline: sewage pollution isn’t actually a matter of the greatest public concern). The puerile mind will also enjoy the inclusion of a Case Study on the “Piddle Valley Sewers” (not one of Dorset’s best-known tourist attractions).
It seems inevitable that the report’s timely conclusions fed into last night’s rejection by the House of Commons, during debate on the Environment Bill, of any imposition on the undertakers of a strict duty to achieve zero spills, substituting instead a duty of progressive reduction, despite the undertakers’ own willingness to accept the absolute duty – on the basis, of course, that they would be entitled to put up their bills to pay for it, thereby increasing the capital on which they are statutorily entitled to a reasonable return (s. 2(2A)(c), Water Industry Act 1991). The political view seems to be that the cost to consumers is unacceptable and unjustified.
An article by Charles Morgan on the use of cost-benefit analysis in the context of the regulation of the water industry can be found here Cost-Benefit Analysis – Is It Worth It
The Silverdale Quarry case – the Human Rights Act as a new language for environmental regulation
The judgment in R (Matthew Richards) v. (1) The Environment Agency, (2) Walleys Quarry  EWHC 2501 (Admin), 16 September 2021 resolved a complaint by young child who had been very prematurely born and left with serious beathing disorder which threatened to develop and shorten his life.
The child brought a judicial review complaining about the lack of regulatory steps by the Agency to control levels of hydrogen sulphide which greatly troubled the local community in 2021 after the landfill site increased its permit limit to accept 400,000 rather than 250,000 tonnes of waste per annum.
The claims were made under Arts. 2 and 8, European Convention on Human Rights. Fordham J accepted that the EA (i) had a considerable margin of appreciation in inquiring and appraising what was wrong and in identifying the steps it should take, (ii) had adequately assessed the emissions from the site and properly taken advice from Public Health England; but, (iii) it had failed to demonstrate that any individual officer had devised a plan in accordance with the PHE recommendation.
As the judge said: “There is a what, and a when. There is also a who. The discipline involves someone taking responsibility for the exercise of judgment. …The Court has thousands of pages of material and yet there is no document before the Court which adopts that discipline or begins to do so. I find it impossible to imagine that the discipline could be performed without some document somewhere reflecting that this was what was being done”.
On the face of it, this it might be said that this is a conventional judgment which the Environment Agency lost on the evidence (it admitted (i) and (ii) of the above). But it is the steps on the journey which are more interesting, this summary not doing the judgment justice.
The judge has laid out a new way of thinking about the Agency’s duties. ECtHR judgments show that the Agency has an ‘operational duty’, as part of the UK’s ‘framework duty’, to ensure that Arts. 2 and 8 are met. The ‘operational duty’ will be assessed according to whether the obligation is historic or on-going.
Troublingly for regulated companies, if there is an accepted guideline standard which lowers the future threshold at which pollution will be assessed as occurring, the Agency will be obliged to regulate with that threshold in mind, by reference to the date on which that threshold comes into force. This will resonate for many regulated industries as climate change and sustainability targets take hold.
Of advantage to regulated companies, the Court’s expressions of the importance of Human Rights obligations in this case will constitute a useful source of grounds of challenge in criminal and civil courts and in tribunals. There are some particularly fruitful comments about the “the duty of sufficient enquiry” in the context of the Agency’s regulatory decision-making.
This was the second Agency judicial review case in 12 months in which the Court was prepared to assess the merits of individual cases (see Safety-Kleen UK Ltd v. Environment Agency  EWHC 3147 (Admin).
The Agency was obliged to pay one third of the Claimant’s costs, giving some broad indication of how the judge saw success and failure in the case.
COP, carbon and planning
Whatever the final outcome of the COP26 conference in Glasgow, it is apparent that significant grass-roots change will be necessary to address the rapidly looming climate deadlines – both legal (such as the ‘net zero’ obligation in Section 1 of the Climate Change Act 2008) and environmentally imposed deadlines through the direct impacts and costs of global warming – extreme weather events, flooding, uncontrolled fires and land lost to sea level changes being some of those anticipated.
Winston Churchill (and Benjamin Franklin) is credited with saying that “Failing to plan is planning to fail.” In relation to the carbon budget and climate change, there has been little co-ordinated planning to address the largest sector contributors to global warming – energy, business, transport (now including aviation since the 6th Carbon budget), public sector buildings, residential emissions and agriculture.
The decentralised approach of central government, encouraging local decisions over a centralised approach, has resulted in a patchwork of decision-making. Examples of this abound in all areas. One of the most significant being aviation where, for example, there has been a refusal to call in the Bristol Airport appeal against the local authorities’ refusal to permit further expansion on, amongst other things, climate change grounds. Such an approach has meant that, using the aviation sector example, existing planning approvals already exceed the expected efficiency gains in the aviation sector by 2050 – meaning that if all of these approvals are taken up, that there will be no net aviation carbon reduction and that other sectors will have to shoulder a greater proportion of the burden if the governments legal obligation is to be met.
At local council level there is recognition that the plethora of ‘climate emergency’ resolutions, with subsequent action being limited to council owned buildings and vehicles, is insufficient to deal with the statutory targets and that climate policy needs to be built into the planning process.
Section 19(1A) of the Planning and Compulsory Purchase Act 2004 requires that “Development plan documents must (taken as a whole) include policies designed to secure that the development and use of land in the local planning authority’s area contribute to the mitigation of, and adaptation to, climate change.”
In October 2021, The Royal Town Planning Institute and the Town and Country Planning Association published an updated document: “‘The climate crisis’ A guide for local authorities on planning for climate change.” The guide was designed to address the organisation’s opinion “that climate change should be the top priority for planning across the UK. This is simply because the impacts of flooding, overheating and other consequences of climate change stand in the way of everything else we want to achieve in terms of the creation of vibrant communities and a sustainable and just society.” See here.
The guide contains many practical recommendations including suggestions that authorities recast local plans to include, over and above alterations to Building Regulation requirements an expectation that embodied carbon (building materials and construction and maintenance carbon cost) calculations become a requirement within planning applications with:-
- Recommendations that all developments take demonstrable action to reduce embodied carbon through design and re-use with the provision of a circular economy statement
- Major developments requirement to calculate a whole life carbon emission for the project
- And for performance changes as between design and as-built embodied carbon assessments be recorded through a system such as that operated by RICS Building Carbon Database.
The expectation is that in order to meet the carbon obligations future homes will be built to a zero-carbon standard – fossil fuel free for heating, and ‘future proofing’ existing homes with low carbon heating and high levels of energy efficiency.
The suggestions also include:
- Encouragement of renewable local energy production
- Encouraging local planning for modal shift towards sustainable transport.
- Encouraging the use of reasonable worst-case planning for climate eventualities – which could have a significant impact on permissible locations of development
Whether adopted on a national scale through building regulation requirements, or implemented through ad hoc local plans, or both, there is every prospect that key environmental features of ‘sustainable development’ will in many local authority areas increasingly include the requirement for quantifiable embodied carbon calculations in addition to terrestrial biodiversity net gain requirements in the Environment Bill (already existing in Marine planning).
Keeping on the theme of Winston Churchill quotes and moving from current events in Glasgow to Dundee almost 100 years ago, in 1908, when Churchill was the Liberal MP for Dundee he was to say: “What is the use of living, if it be not to strive for noble causes and to make this muddled world a better place for those who will live in it after we are gone?” Plus ça change.
Environmental Law Conference – 3rd December
Join Six Pump Court’s hybrid Environmental Law Conference on Friday 3rd December 2021 to hear from our specialist counsel and leading experts on current issues in environmental law and climate change.
The full programme and confirmed speakers including from DBEIS, Linklaters, Aarhus University, Bank of America, Addleshaw Goddard, and CMS Cameron McKenna, are available here. The event will incorporate speaker panels and Q&A on the Environment Bill, Water Law, Carbon Capture and Storage and Climate Change (drivers of corporate behaviour, and litigation). Professor Richard Macrory will give the keynote address.
The in-person conference will take place in the new Ashworth Centre at Lincoln’s Inn on 3rd December from 9am to 5pm and will be livestreamed, so that delegates who cannot or do not wish to attend in person will be able to follow the main panel presentations and Q&A online.
Discounts are now available for multiple bookings from the same organisation with prices for the third booking and further tickets – booking information and prices 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 firstname.lastname@example.org