All posts by Bridget Tough

Environmental Law News Podcast

In this podcast produced by Lexis PSL, Christopher Badger and Mark Davies discuss some of the key developments over the previous month, including:

  • The Office for Environmental Protection (OEP) consultation on strategy and enforcement policy – listen from 0.36 mins
  • The Spring Statement – listen from 4.22 mins
  • Green claims in advertising – listen from 7.29 mins


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

Environmental Law News Update

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

Climate change risks and the UK’s national reporting requirements

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

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

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

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

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

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

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

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

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

The studies can be found here

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

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

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

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

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, Natasha Hausdorff and William McBarnet consider the dangers of overstating environmental virtues in advertising, more on the OEP’s strategy and enforcement policy and Environment Agency changes to attendance requirements for technically competent managers.

Mairzy doats and dozy doats but Oatly Oats musty dwerds*

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

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

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

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

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

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

The OEP’s strategy and enforcement policy

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

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

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

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

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

EA to change requirements on technically competent manager attendance

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

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

In summary:

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

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, Brendon Moorhouse, Christopher Badger and James Harrison consider a successful appeal by the Environment Agency in the Walleys Quarry litigation, draft documents issued by the new Office of Environmental Protection and the launch of a new consultation into the implementation of the biodiversity net gain (BNG) provisions for planning purposes.

Environment Agency succeed in Walleys Quarry appeal

On 17 January 2022, the Court of Appeal allowed the appeal by the Environment Agency against the decision of Fordham J (previously covered in our blog here). The judgment underlines the limits of the role of the courts to prescribe actions to be taken by public bodies in the face of allegations that the body is acting in a way that is incompatible with rights derived from Articles 2 and 8 of the ECHR. The context here was the risk to a five-year old boy from hydrogen sulphide emissions from a regulated landfill site.

The judgment of Fordham J had been that a declaration should be granted prescribing what was to be done by the Environment Agency in relation to emissions and by what timetable. He had considered that this relief was “necessary” since that the Court had to “step up” given the very real impact that was (and is) felt by Mathew Richard and his family. As is clear from the length and complexity of his judgment, Fordham J considered the relevant ECtHR jurisprudence in great detail. However, the Court of Appeal decided that he had not applied it correctly.

The Court of Appeal concluded that Fordham J had gone beyond his permitted remit in ensuring that no manifest error had been made by the national authorities when striking a fair balance between the interests of the applicant and the community as a whole. As submitted in the successful first ground: the Environment Agency is a statutorily appointed and expert regulator better able to determine how to action compliance with guidance and advice from Public Health England as regards hydrogen sulphide emissions than the Court.

Further, in the absence of a finding of any past or current breach of Articles 2 or 8, and without assessing the evidence of the Environment Agency’s officers as to the steps the Environment Agency was proposing to take in future, it was wrong for the Court to have granted a declaration. Whilst declaratory relief is flexible and can address proposed unlawful action, there was no evidential basis for the declaration in this instance.

Lindblom LJ succinctly summarised the position in the few paragraphs that he contributed to the end of Lewis LJ’s judgment:

In this case, the relief sought in the claim was predicated squarely on asserted breaches of the Environment Agency’s obligations under Articles 2 and 8 of the Convention, which were said to be extant and continuing. But as is clear from his judgment, the judge did not find that any such breach had occurred … There was no unlawfulness requiring a remedy. Yet the judge nevertheless granted relief. And he did so not by way of an advisory declaration, but in the form of an order framed in terms which were both mandatory and prescriptive … To grant such relief in this case was, in my view, to step beyond the role of the court in determining the claim on the facts as they were at the time.

The necessary consequence of finding that there had been no past or current breach put pay to the cross-appeal by the Respondent.

James Harrison and Gordon Wignall’s commentary can be found here and as it appeared in the Local Government Lawyer magazine here.

Draft documents issued by the new Office of Environmental Protection

The Office of Environmental Protection functions came into force on Monday 24th January 2022, marking one of the biggest changes to the scrutiny, regulation and enforcement of environmental laws in the UK in decades.

The OEP has published its draft strategy that is open to consultation, and also its draft enforcement policy that sets out how the OEP intends to use its powers to receive complaints, conduct investigations and bring proceedings in response to serious failures by government and public authorities to comply with environmental law.

Of particular interest are the relevant factors suggested for assessing the seriousness of any alleged breach of environmental law. These are recorded in the draft as:

  • Whether a public authority’s conduct raises any points of law of general public importance;
  • The frequency of the conduct over time;
  • The behaviour of the public authority, including a consideration of ‘compounding’ or ‘mitigating’ factors;
  • The harm or potential harm to the natural environment or to human health associated with the failure;
  • Any other relevant factors.

One of the compounding factors includes whether the public authority has a high degree of responsibility for the failure, for example by acting deliberately, recklessly or negligently. The current phraseology raises an eyebrow. The culpability of an offender would ordinarily be the first thing that a Court would assess – it wouldn’t be considered as a ‘compounding’ factor or, to put it another way, an aggravating feature of the offence. Here, the draft enforcement policy reads as if the level of culpability isn’t actually key to any determination of how the OEP should act, especially as it is suggested that even a negligent failure results in a high degree of responsibility on the part of the local authority. Where there has been a failure resulting in a breach of environmental law, it isn’t particularly difficult to suggest that culpability is at least negligent.

The draft strategy, draft enforcement and consultation documents can be found here

Government launches consultation into the implementation of the biodiversity net gain (BNG) provisions for planning purposes

Following the passage of the Environment Act in November 2021, the Government has launched a consultation into the implementation of the biodiversity net gain (BNG) provisions for Planning purposes (see here). The consultation is due to close on 5th April, and BNG is set to become mandatory in November 2023. (BNG provisions are already ‘live’ in respect to Marine Planning).

The overall objective will be for a developer to demonstrate 10% BNG over a 30-year period, and a key change is the dropping of brownfield sites as an exemption. This could pose problems for urban developers where brownfield sites already contain significant biodiverse content and where net gain cannot be identified on-site.

The details are not yet in place, but the direction of travel suggests that BNG plans will be expected to deliver on-site within 12 months of the commencement of development which is likely to impact multi-phase developments.

Another key area will also be the practical implementation of off-site gain. This subject has already stoked significant controversy in Australia where a similar scheme operates and has been criticised by many in the conservation sector.


To keep up-to-date follow us on Twitter @6pumpcourt or click here to subscribe to the mailing list.

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

Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC, Christopher Badger and Natasha Hausdorff consider a new government report on the climate risks facing the UK, the state of England’s rivers and the extension of climate-related disclosure requirements by the FCA.

UK climate risk assessment

One of the leading items on the BBC News on 17 January 2022 was that the government has published its latest report on the climate change risks facing the UK.  The News bulletins highlighted that the likely costs of not taking action to adapt are that economic damage could exceed £1 billion per year by 2050, for any of the eight ‘very high’ risks out of the 61 risks identified.  They include risks to infrastructure networks, that could cascade across sectors; flooding; risks to financial markets; overheating in places of work; and risks associated with climate change overseas.  The number of risks that now fall into this ‘very high’ damage category has risen from the 3 that were identified a decade ago.

It is easy for the need for adaptation to be overshadowed by the great efforts being made to try to reduce and mitigate temperature increases.  But the two are interrelated. We must integrate adaptation action into the mitigation efforts – and successful mitigation should in turn ensure that adaptation remains more achievable.  Nevertheless, it is an unpalatable truth that despite all the efforts still being put into limiting average global warming to +1.5°C (from its current +1.2°C), the evidence from the IPCC shows that we must sensibly plan ahead for warming of +2°C by 2050.  We will also need to bear in mind the possibility of greater increases than that by 2080.  The report also highlights that a small shift in the average climate can lead to major changes in extreme events.

As was discussed in our environmental law conference in December, this UK report has been laid before Parliament as required by the Climate Change Act 2008.  It is the third risk assessment to have been produced since the Act began.  The CCRA is intended to be a spur for policy action, as it will lead to a new version of the National Adaptation Programme (NAP) in 2023.  Whilst there might seems to be a slight lack of urgency to this five-yearly reporting process, it is important that it exists as a statutory duty at all – so that policymakers are starting on common ground. It should also influence current decision making.  The government is also aware of the time delay issue – it has already asked the Climate Change Committee to identify what the priority areas for action are in the next two years, in advance of the next adaptation programme – and these have been endorsed in the CCRA3 report.

A link to the report can be found here

The state of England’s rivers

Last week the Environmental Audit Committee published its Report on Water Quality in Rivers, which began by setting out that obtaining a complete overview of the health of our rivers and the pollution affecting them is hampered by outdated, underfunded and inadequate monitoring regimes. Nevertheless, the report charged that a ‘chemical cocktail’ of sewage, agricultural waste, and plastic is polluting the waters of many of the country’s rivers. Not a single river in England has received a clean bill of health for chemical contamination, and the evidence disturbingly suggests that they are becoming breeding grounds for antimicrobial resistance.

The most recent figures published by the Environment Agency show that only 14% of English rivers met good ecological status and no river met good chemical status. It is also alleged that water companies appear to be dumping untreated or partially treated sewage in rivers on a regular basis, often breaching the terms of permits that on paper only allow them to do this in exceptional circumstances. The requirements of the EU Water Framework Directive, implemented in domestic legislation by the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 remain in force, though Parliament has now given Ministers the express power to amend these regulations under Section 89 (1) of the Environment Act 2021.

The investigation of these issues was prompted by a private members bill, introduced by the Chair of the Committee the Rt Hon Philip Dunne MP, the Sewage (Inland Waters) Bill, which proposed to place a duty on water companies to ensure that untreated sewage was not discharged into rivers and other inland waters. The Inquiry, however, grew to take in challenges to good water quality emanating also from agricultural pollution and road run off. The Committee has focused primarily on rivers in England, as the regulation of water quality in the UK is largely devolved. It received 105 pieces of written evidence and heard in person from 31 witnesses, including the Parliamentary Under Secretary of State at the Department for Environment, Food and Rural Affairs, Rebecca Pow MP, the chief executives of the Environment Agency, Ofwat and Highways England and the chief executives of five of the water and sewerage companies operating in England.

The Committee has called on National Highways to accelerate its efforts to eliminate toxic chemical and plastic pollution from the most polluting outfalls on the Strategic Roads Network by 2030 and expects to see far more assertive regulation and enforcement from Ofwat and the Environment Agency.

FCA extends climate-related disclosure requirements

The FCA has published two policy statements entitled ‘Enhancing climate-related disclosures by standard listed companies’ and ‘Enhancing climate-related disclosures by asset managers, life insurers and FCA-regulated pension providers’.

Climate-related financial disclosure requirements are being extended. The Government has committed to work towards mandatory TCFD-aligned disclosure obligations across the UK economy by 2025. This is the next step.

Standard listed companies

A new rule, LR 14.3.27R, will apply for accounting periods beginning on or after 1 January 2022. This requires in-scope companies to include a statement in their annual financial report setting out:

  • Whether they have made disclosures consistent with the TCFD’s recommendations and recommended disclosures in their annual financial report;
  • Where they have not made disclosures consistent with some, or all, of the TCFD’s recommendations and/or recommended disclosures, an explanation of why, and a description of any steps they are taking or plan to take to be able to make consistent disclosures in the future, and the timeframe within which they expect to be able to make those disclosures;
  • Where they have included some, or all, of their disclosures against the TCFD’s recommendations and/or recommended disclosures in a document other than their annual financial report, an explanation of why;
  • Where in their annual financial report (or other relevant document) the various disclosures can be found.

Guidance provisions set out by the FCA includes guidance on metrics, targets and transition plans and implementation.

Companies are also encouraged to assess the extent to which it has considered the UK’s net zero commitment in developing and disclosing its transition plan. Where it has not done so, the company is encouraged to explain why. This blog has repeatedly identified that it was likely that the onus to meet net zero would fall on industry, particularly due to the lack of concrete policy commitments from the Government. Here we see evidence of that likelihood in action.

The first annual reports subject to the new rule will be published in early 2023.

Asset managers and other FCA-regulated asset owners

In scope firms are required by new rules to make disclosures on an annual basis at:

  • Entity-level: an annual TCFD entity report published in a prominent place on the main website of the firm’s business setting out how they take climate-related matters into account in managing or administering investments on behalf of clients and consumers;
  • Product-level: disclosures (including a core set of climate-related metrics) on the firm’s products and portfolios made publicly in a prominent place on the main website of the firm’s business and included or cross-referenced in an appropriate client communication, or made upon request to certain eligible institutional clients.

The rules will apply to 34 asset management and 12 asset owner firms in the first phase of implementation from 1 January 2022. Once full implemented they will apply to 140 asset management and 34 asset owner firms, representing £12.1 trillion in assets under management and administered in the UK, 98% of the market.

The first public disclosures in line with the FCA’s requirements must be made by 30 June 2023.

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

Environmental Law News Update

In our first Environmental Law News Update of 2022, Christopher Badger, Mark Davies and James Harrison consider some environmental law predictions for the year ahead, climate compatibility checkpoint tests for oil and gas, and an agreement between the UK and Norway on fishing access and quotas.

Environmental law predictions for 2022

As ever, we begin the year with our predictions for environmental law in the forthcoming year.

Environmental targets

A draft of the statutory instrument containing regulations setting each of the targets required by section 1(2) of the Environment Act 2021 (long-term targets in respect of at least one matter in the priority areas of air quality, water, biodiversity and resource efficiency and waste reduction) as well as the PM2.5 air quality target required by section 2 and the species abundance target found in section 3 of the same Act is required to be laid before Parliament on or before 31 October 2022.

Targets will be set following a period of “robust evidence-gathering, consultation and engagement with experts, advisers and the public”. The Government has committed to a public consultation on new legal targets for PM2.5 and other pollutants in early 2022. The World Health Organisation stated in September 2021 that annual average concentrations of PM2.5 should not exceed 5mg/m3 considerably lower than the current legal limit of 20mg/m3. The species abundance target was a late addition to the Environment Act, only introduced in June as the Bill ping ponged its way through the Houses.

We predict:

  • Biodiversity and water targets will largely mirror EU ambitions;
  • The resource efficiency and waste reduction target will take the form of a ratio, most probably the ratio of GDP to raw material consumption;
  • DEFRA will in fact set two targets for PM2.5 – a ‘population exposure reduction target’ and a concentration-based ‘limit value’ target. The latter won’t be as low as the WHO’s guideline limit, but will be ostensibly justified on a cost-benefit analysis and by linking the wider public health to the general population target;
  • The data underlying species abundance will prove to be much more useful for frequently encountered and abundant species than species under threat, resulting in rather generic and general targets.

The Office for Environmental Protection

The strategy which the Office for Environmental Protection (“OEP”) is obliged to produce under section 23 of the Environment Act 2021 will be a key document of the organisation and will contain the enforcement policy relating to the OEP’s formal enforcement functions. The OEP will not be able to investigate or take enforcement action against every alleged breach of environmental law by public bodies – repeated reference is made for the breach to be ‘serious’ and the enforcement policy must set out criteria on how the OEP will determine that a breach is ‘serious’ or not.

Section 23(7) requires the OEP, in considering its enforcement policy to have regard to the particular importance of prioritising cases that it considers have or may have national implications, and the importance of prioritising cases that relate to ongoing or recurrent conduct, relate to conduct that the OEP considers may cause or has caused serious damage to the natural environment or to human health or that the OEP considers may raise a point of environmental law of general public importance.

However, this should not be considered to be an exclusive list of priorities and, arguably, given the multitude of factors that might be taken into account, the section supports a broad and flexible interpretation of what might be considered ‘serious’. We also detect more than a hint that the Chair of the OEP is quite prepared to be robust and independent in their own approach.

We therefore predict that:

  • The enforcement policy to be published for consultation will take a broad approach to the types of cases that could legitimately be taken up by the OEP that will allow the OEP the flexibility it needs to start to assert itself. ‘Serious’ won’t be limited to serious impact on the environment but will include cases where the breach itself might be seen as serious even if environmental harm is limited and will include scope to take action against the cumulative impact of repeated small breaches of environmental law.

Environmental taxes

Green levies have been very much in the news recently following soaring energy prices and the Prime Minister is coming under increasing pressure to suspend them while gas prices remain high. The issue largely turns on who should bear the cost for raising money for infrastructure to support the growth of renewables and whether it is really fair to expect the consumer to fund infrastructure development when the cost of living is so high.

Looking elsewhere the plastic packaging tax comes into force on 1 April 2022, with a rate of tax of £200/tonne on plastic packaging that contains less than 30% recycled plastic, and which is manufactured or imported into the UK (including packaging on finished goods which are imported).

We predict that:

  • Environmental ambition in the form of taxes and levies that result in higher consumer costs will take a significant back seat during 2022, the ‘year of the squeeze’. This is highly likely to influence any forthcoming producer responsibility schemes and impact on policy initiatives designed to ensure that companies achieve tangible environmental outcomes, rather than passing on costs. Government will shrink from taking any steps that might increase consumer costs.

Climate compatibility checkpoints consultation

There is an inherent difficulty faced by the Oil and Gas Authority (“OGA”) in working out how to reconcile continued oil and gas production and subsequent distribution, with governmental policy objectives relating to climate change. This is reflected in the Central Obligation of the OGA’s Strategy published in February 2021, which can be paraphrased thus: steps must be taken necessary to secure that the maximum value of economically recoverable petroleum is recovered from the UK Continental Shelf and in doing so, appropriate steps must be taken to ensure compliance with the UK target to achieve Net Zero by 2050. One might consider that these two sets of steps are contradictory. It is hoped that the implementation of ‘climate compatibility checkpoints’ will assist the OGA to square this circle.

The OGA currently operates a regime that grants licenses to operators, which are a pre-requisite before that operator can explore for, drill for, or produce petroleum. Licences grant the holder exclusive rights to explore for petroleum in the area covered by the licence. To go beyond exploratory drilling, operators must gain consent from the OGA, which is further subject to environmental assessments by the Offshore Petroleum Regulator for Environment and Decommission, and assessments by the Health and Safety Executive. Net Zero considerations are imposed by the OGA’s Strategy across all aspects of a project’s lifecycle.

Licences are typically awarded following a ‘licensing round,’ which occur at most once a year and consist of a tender process for a specified number of licence areas. It is proposed that climate compatibility checkpoints would be exercised before the OGA offers any new licensing round(s) to ensure that new licences are awarded only on the basis that they are aligned with the UK’s climate goals. In short, there must be industry-wide compliance because unless all new licensees are collectively able to satisfy the checkpoint no licences will be granted.

The consultation sets out seven potential tests, including domestic demand for oil and gas, the sector’s projected production levels, the increasing use of clean technologies such as carbon capture and hydrogen generation, and the industry’s progress against emissions reduction targets. A combination of these, and/or other tests proposed by consultees, will be used to assess new licences.

One of the apparent differences between the tests outlined in the consultation is which emissions they seek to address. It is stated within the consultation document that Scope 3 emissions are “many times greater” than emissions from Scopes 1 and 2. This is to say that indirect emissions including when hydrocarbons are combusted or used in other process such as the production of plastics or medicines, exceed those generated during the process of extracting the oil and gas, and any indirect emissions from energy purchased by the emitter. In devising a test that does not account for Scope 3 emissions there is a great risk that a huge amount of potential environmental impact is not accounted for. As is foreshadowed in the preamble setting out potential test five, there are inherent complexities in accurately calculating Scope 3 emissions given that the emissions are associated, not with the operator itself, but with fuel users up and down its value chain but this is surely a matter that consultees are likely to address in their responses.

The first potential checkpoint test – ‘Reductions in operational greenhouse gas emissions from the sector vs. commitments’ – is illustrative of some of the difficulties that the OGA faces. In the abstract it is a relatively simple test, which involves the assessment of both historical data, and emissions projections (other than Scope 3) in order to establish compatibility based on current performance, and on future risks to agreed objectives. The test compares the sector’s progress in reducing emissions to date with the commitments set out in the North Sea Transition Deal (inter alia 50% reduction in emissions by 2030), the operative Carbon Budget, the UK’s Nationally Determined Contribution, and with projected reductions in future. Given that a margin for error is factored into this test it would appear to be fundamentally workable and easily understood.

However, one could also say that the phraseology of the first checkpoint test hints towards the issue raised at the top of this post: the compatibility of environmental goals with the OGA’s obligation (or commitment) to encourage steps towards the extraction of the maximum value of economically recoverable petroleum. Moreover, even if this interpretation reads too much into the test, there is no reference to how the test would be reconciled with the OGA’s overarching objective, which could result in unsatisfactory uncertainty. This is an area congested with new policy documents and strategies (the OGA’s Strategy, the governmental review, the Consultation document, the North Sea Transition Deal, and the OGA’s ‘Stewardship Expectation 11 – Net zero’ have all been published since February 2021 and all consider the issues around Net Zero) and so it is presently unclear how they all interrelate and how the OGA will be able to carry out the appropriate balancing exercise.

We may soon gain clarity on this issue because of judicial review proceedings brought by climate campaigners (link here), which was heard on 8 and 9 December 2021 and should yield a decision early this year. In that case it was alleged that the OGA Strategy is irrational on that basis that it will result in increased oil and gas production because the profitability of operators is exaggerated as a result of the fact that government subsidies are not considered at the licence stage, which conflicts with UK Net Zero targets.

The consultation period runs until 28 February 2022. Responses can be submitted online here or via email to oilandgasconsultations@beis.gov.uk.

UK and Norway agree fishing access and quotas

Amidst all of the wrangling about the Northern Ireland Protocol, the Government announced on 21 December last year what, on its face, would appear to be some good news: the agreement with Norway as to fishing access and quotas in each other’s waters in the North Sea and Arctic.

The agreement is only for one year (2022) and permits the UK fishing industry to take 30,000 tonnes of whitefish stocks in the North Sea with 6,550 tonnes of cod allocated to the UK around Svalbard, an increase of 1,500 tonnes than in 2021.

Importantly, vessels wishing to fish in Norwegian waters in 2022 must still apply for an external waters licence via the UK Single Issuing Authority. Guidance is available on this process (see here).

Whilst Fisheries Minister Victoria Prentis announced the agreement as “[providing] opportunities for the UK fleet and [ensuring] a strong balance that will benefit both our fishing industry and the protection of our marine environment”, the agreed quotas have been criticised by those in the fishing industry with it seemingly possible that the UK’s biggest trawler (the Hull-based Kirkella) will remain mothballed with the figures reportedly only providing a week’s worth of work for its crew.

This announcement followed an earlier announcement in December last year when the Government concluded fishing catch limits with the EU and Norway. Interestingly, and noting the dismay expressed by those in the fishing industry, the catch levels for five of the six stocks were set in line with, or lower than, the levels advised by scientists at the International Council for the Exploration of the Sea, which would suggest that concerns surrounding overfishing are, perhaps at last, being taken seriously.

More information on the announcements may be found here

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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 post-Trump US environmental agenda, how we did with our predictions for 2021 and some festive musings on waste.

The post-Trump US environmental agenda

The US Department of Justice has just signalled its intent to prioritise prosecuting individuals who commit corporate environmental crimes, in order to encourage environmental compliance.

Environmental prosecutions reached an all-time low during the Trump Administration. But in a speech given on 14 December at the American Bar Association’s National Environmental Enforcement Conference, Assistant Attorney General for the Department of Justice’s Environment and Natural Resources Division Todd Kim stated “A genuine threat of criminal prosecution can and will change the conduct of individuals and corporations who would not be deterred by the threat of civil enforcement alone”. The Chief of the DOJ’s environmental crimes section stated at the same time that the DOJ is “going back to a little more stick than carrot”.

The shift in policy also emphasises the need for co-operation with inspectors during site visits and requiring companies to undertake a root and branch review of their own compliance policies to identify and rectify any weaknesses that may exist.

Where the US leads, others often follow. The US Attorney General, Merrick Garland, and the EU’s Commissioner for Justice, Didier Reynders, met together in Washington on 16 December, where they stressed the importance of holding accountable those responsible for environmental crime. At the same time, Stop Ecocide International is actively campaigning for ecocide to be added to the list of crimes on the Rome Statute of the International Criminal Court, which would result in ecocide becoming an arrestable offence and those responsible for acts or decisions that lead to environmental harm being liable to criminal prosecution.

Our January predictions

We were possibly slightly ahead of ourselves with our predictions back in January. The Environment Act was repeatedly delayed and whilst the Office for Environmental Protection has now been formally established, it has yet to make its mark. Dame Glenys Stacey’s vision for the OEP is ambitious: in an interview back in March with ENDS report she stated “[The OEP] will be an agile, intelligent, listening organisation, really a wise organisation over time” and that its independence is “all in the doing”. The first complaints that the interim OEP has dealt with all relate to local councils for alleged failures to follow environmental impact assessment regulations and alleged breaches of Habitats Regulations. On a different note, the export of waste abroad does indeed remain high on the agenda but the headlines have been limited with the Environment Agency’s prosecutions of Biffa being the obvious exception. And what of the indirect emissions of professional services firms, including lawyers? Was 2021 the year when ESG became mainstream? Arguably yes, but there is plainly still a considerable way to go. We look forward to making our fresh predictions in the New Year.

Going To Waste – This Year’s Christmas Songs

Having covered Sewers, Water Pollution, Noise Nuisance, and Air Quality, it’s getting more difficult every year. However, there’s still at least one opportunity that we mustn’t “waste” ….

This choice of topic provides a golden opportunity to draw the attention of our readership to one oeuvre of the great, under-recognised French songwriter Serge Gainsbourg. Many people of a certain age and era remember fondly “Je T’aime Moi Non Plus”, his only hit outside France, the international success of which was heavily propelled by its being banned almost everywhere. However this was merely one of hundreds of songs written by Monsieur Gainsbourg, the lyrics of which veer between genius and profanity. They include the little-known “Ballade de Johnny Jane”, the theme music for the film “Je T’aime Moi Non Plus” (which confusingly does not feature the song which gives it its name). The film is entirely concerned with the upheaval which results to the life of the androgynous Johnny-Jane from the arrival of a bin wagon and its two drivers in an American one-horse town, with the mission of clearing the municipal tip. The song “Ballade de Johnny Jane” is an elaborate set of metaphors and allegories comparing aspects of human life with the operations of the waste industry. Try, for example, “Les décharges publiques sont des Atlantides, que survolent les mouches cantharides”.1

There’s at least one further song about dustbin men, “My Old Man’s A Dustman (Ballad of a Refuse Disposal Officer)” by Lonnie Donegan in 1960, although it doesn’t really espouse any environmental cause and concentrates instead on lame double entendres which, despite that French description of their character, would have been considered unworthy of deployment by Serge Gainsbourg and an insult to his art.

Another under-recognised (but by no means unsung) songwriter is Mike Batt, whose work went well beyond the Wombles in its subject-matter and profundity. However for present purposes, we need go no further.  Whilst best-known for their efforts at litter-collection, the Wombles had the entire waste hierarchy at the very core of their being. “The Wombling Song” alludes to both Re-use (“Making good use of the things that we find, things that the everyday folks leave behind”) and Recycling (“Pick up the pieces and make them into something new, is what we do”). There’s perhaps even a nod at Prevention in “Wombles Everywhere”, written in 1973, mentioning a pristine state of the planet which now seems gone: “And down among the icicles, where the polar bears hang out, there is very little Wombling to be done”. The plastics were just starting to arrive.

Nevertheless the core activity of the Wombles is undoubtedly Disposal and the battle against litter and fly-tipping. “Womble Burrow Boogie” urges that “We’ll take the opportunity, to clean up the community, together”, with catchy backing vocals telling us to “Clean it up! Clean it up! Pick it up! Pick it up!”. And surely everyone knows and obeys the admonition in “Banana Rock”: “Ooh la la la la hey banana, don’t you slip on the skin. Ooh la la la la hey banana, Womble up the rubbish and put it in the bin.” The song continues: “We have the solution to the pollution, I think it is easy to guess. It is so amazing, instead of just lazing, we certainly sweep up and clean the mess.” Has any litter Tzar (whatever happened to them?) ever delivered such powerful (even if not entirely successful) messages?

“Flytipping” by Suede is quite interesting. Genius.com suggest that it is actually about “a couple letting go of all their possessions and moving forward with the next stage of their lives”. If so, they’re a very selfish couple, and the song seems to this listener to dwell instead on the environmental damage caused by worthless possessions being casually discarded. But maybe there’s an allegory in there too. The fact that the Bond theme “The World Is Not Enough” was performed by the band Garbage is mildly amusing, but probably no more than an unfortunate coincidence.

There is other material, but not a lot, and much of it offers nothing beyond the title.2 Some of it is certainly rubbish. Maybe it takes the genius of a Gainsbourg to make a successful song of such a topic, but to be honest Mike Batt’s lyrics seem to be the most pertinent around, not least: “We wish you a Wombling Merry Christmas.”

1 “The council rubbish tips are states of Atlantis, over which the Spanish flies hover” is one fairly liberal translation of this complex word play. The phoneme “-ide” is deployed throughout the song as the principal rhyming sound. It’s all very clever stuff.

2 There’s a Spotify collaborative playlist “Songs about trash” but it doesn’t really contain much of interest. Someone has even unkindly included the Jeff Buckley version of “Hallelujah” by Leonard Cohen, in a presumed attempt at humour.

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

Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger, Nicholas Ostrowski and James Harrison consider progress made at COP26, a major investigation into sewage treatment works by Ofwat and the EA, the new Environment Act and our Environmental Law Conference next week.

COP26

COP 26 has now finished, with mixed views on whether or not progress has been made. We take a look at some of the passages from the final text, with our own analysis. Passages in italics are taken directly from the final text.

“29. Recalls Article 3 and Article 4, paragraphs 3, 4, 5 and 11, of the Paris Agreement and requests Parties to revisit and strengthen the 2030 targets in their nationally determined contributions as necessary to align with the Paris Agreement temperature goal by the end of 2022, taking into account different national circumstances.”

It was requested that countries will meet next year to pledge further cuts to emissions of carbon dioxide. This is both a positive and a negative. It reflects the fact that on one view, little progress was made on establishing plans to make the necessary reductions in emissions agreed under Paris. But at least that might be revisited next year. That reflects a departure from the previous requirement to only submit new or updated plans every five years.

“36. Calls upon Parties to accelerate the development, deployment and dissemination of technologies, and the adoption of policies, to transition towards low-emission energy systems, including by rapidly scaling up the deployment of clean power generation and energy efficiency measures, including accelerating efforts towards the phase-down of unabated coal power and inefficient fossil fuel subsidies, recognizing the need for support towards a just transition.”

This is the plan to “phase-down” the use of coal. The explicit mention of “coal” and “fossil fuel subsidies” is a break from previous agreements. But what does “unabated coal power” mean? Presumably “support for a just transition” refers to financial support for polluting industries. And the world’s countries couldn’t agree on a “phase-out”. The word “phase-down” reflected a change of wording when both China and India both objected to the use of the words “phase-out”. “Inefficient fossil fuel subsidies” reflects an agreement to phase down subsidies that artificially lower the price of coal, oil or natural gas but it can be seen that no date has been set.

44. Notes with deep regret that the goal of developed country Parties to mobilize jointly USD 100 billion per year by 2020 in the context of meaningful mitigation actions and transparency on implementation has not yet been met, and welcomes the increased pledges made by many developed country Parties and the Climate Finance Delivery Plan: Meeting the US$100 Billion Goal and the collective actions contained therein;

Developed countries missed the $100 billion target of climate finance that ought to have gone to developing countries by 2020 under the Paris Agreement. In its place, there is a pledge to significantly increase money to help poor countries cope with the effects of climate change and make the switch to clean energy. There is a prospect of a trillion dollar a year fund from 2025.

73. Decides to establish the Glasgow Dialogue between Parties, relevant organizations and stakeholders to discuss the arrangements for the funding of activities to avert, minimize and address loss and damage associated with the adverse impacts of climate change, to take place in the first sessional period of each year of the Subsidiary Body for Implementation, concluding at its sixtieth session (June 2024);

It was agreed that there will be further dialogue about “loss and damage”, a collective term for the impacts that climate change has already had. The final text recognises that climate change has already caused loss and damage but the bottom line is that the world’s richer countries don’t want to be held liable for that “loss and damage”.

“78. Recalls the Katowice climate package, and welcomes with appreciation the completion of the Paris Agreement work programme20, including the adoption of decisions on the following:

78 (b) Methodological issues relating to the enhanced transparency framework for action and support referred to in Article 13 of the Paris Agreement (decision -/CMA.3);

78 (f) Rules, modalities and procedures for the mechanism established by Article 6, paragraph 4 of the Paris Agreement (decision -/CMA.”

78 (b) reflects an agreement on a single transparency standard, important for how countries should report on their emissions under the Paris agreement. 78 (f) reflects the creation of internationally controlled standards to avoid the same emissions reductions being claimed by multiple countries or companies and to tackle false reduction credits in a carbon market. Nonetheless, concerns remain over the integrity of the market and the extent to which it will actually contribute to carbon reduction.

COP 26 closed claiming that 1.5 remained within reach. Whilst, objectively, that appears very much to be in doubt, there is no alternative but to keep trying to make progress.

Major investigation into sewage treatment works begun by Ofwat and the EA

The biggest water story in 2021, that of allegations of unauthorised sewage discharges by water companies, continues to run and run.

The latest instalment in the saga came on 18 November 2021 when the Environment Agency and Ofwat launched what they both described as a ‘major’ investigation into sewage treatment works. This investigation is said to be looking into 2000 sewage treatment works where the Environment Agency and Ofwat are concerned that water companies are discharging effluent into watercourses in excess of environmental permits. The specific allegations which are being explored are whether at these 2000 sewage treatment works ‘the companies are complying properly with the conditions in their permits on the volumes of sewage they must treat before they are allowed to divert any untreated sewage to storm overflows.’

While this has been welcomed by interested groups, many are suggesting that this investigation is long overdue as they have claimed for years that despite apparently stringent terms in permits, water companies are, in practice, diverting polluted water from sewage treatment works and discharging them into watercourses from stormwater outfalls or similar after very minimal (or in some cases no) recent rainfall. The statements from Fish Legal and Windrush Against Sewage Pollution (WASP) are particularly interesting in asking why it has taken so long to begin such an investigation.

In a recognition of the political and social impact which water pollution is having, the language used by the chair of the Environment Agency, Emma Howard Boyd is noticeably assertive: ‘This shows why we need robust and well-funded regulation to provide the public, investors and customers with assurances about what is being delivered on the ground. I would like to see the levels of penalties for corporate environmental crime in England go up significantly. More attention should also be paid to the directors of companies that are guilty of repeated, deliberate or reckless breaches of environmental law. Such directors should be struck off and in the most grievous cases given custodial sentences.’

Environment Act 2021: a short summary

Last week the Environment Act 2021 became another piece of ‘world-leading’ legislation. Environment Secretary, George Eustice, stated that the new Act “will deliver the most ambitious environmental programme of any country on earth”. The Act is intended to clean up the air, restore habitats, increase biodiversity, reduce waste, halt species decline, tackle deforestation, and encourage better use of resources.

The Act is notable for the way in which it provides something of a ‘one-stop shop’ for environmental issues. Top-level policy is impacted by the Act through the requirement to set long-term targets and the need for ministers to consider five key (reassuringly familiar) principles when making policy – the integration principle, the prevention principle, the rectification at source principle, the polluter pays principle and the precautionary principle. At a regional level there are requirements outlined in several areas such as the requirement for local councils to establish regular recycling (DEFRA wants to recycle at least 65% of municipal waste by 2035). There is something for businesses and for individuals, too: for example, the encouragement to use sustainable packaging and to use deposit return schemes for drink containers, respectively. Finally, international issues feature such as provisions intended to stop the export of polluting plastic waste to developing countries.

Joined-up thinking is also clear in the way that ‘classic’ environmental issues such as targets for particulate pollution rub alongside biodiversity targets. Under s 1 of the Act, long-term targets to improve air quality, biodiversity, water, and waste reduction and resource efficiency must be set, including a target on ambient PM2.5 concentrations, the most harmful pollutant to human health. The government is obliged to propose the targets before the end of 2022. Interim targets are intended to increase accountability and ensure that steady progress is made, which in the view of this author is essential to avoid undue reliance upon the hope of future exponential improvement that is contingent on future technologies. Alongside these targets, the UK has become the first country with a legal target to halt wildlife decline by 2030. There is impetus to take steps towards “net zero for nature” ahead of Convention on Biological Diversity negotiations next year. However, despite this positive step the issue of biodiversity loss is likely to remain something of a political battleground; on 2 September 2020 Caroline Lucas tabled a private members bill entitled ‘Climate and Ecology Bill,’ which would establish a Citizens’ Assembly to help set biodiversity and climate strategy.

Related to several recent posts in this blog, the Act will crack down on water companies that discharge sewage into rivers, waterways, and coastlines. A duty enshrined in law to ensure water companies secure a progressive reduction in the adverse impacts of discharges from storm overflows. However, this did not go as far as amendments tabled by peers in the House of Lords, and the reference to ‘progressively reducing impacts’ is argued by critics to undermine the protections derived from EU law which place an obligation on water companies to avoid spills from storm water overflows save for in exceptional circumstances. On this score it may be a case of waiting until the muddle settles to see if the water is clear…

Finally, as has been outlined in the blog previously, government and public bodies are to be held to account by the Office for Environmental Protection (OEP). An interim OEP has been operative since July and the OEP proper will formally commence its statutory functions early in 2022. There remained concerns in the House of Lords as to the independence of the OEP. Groups such as Green Alliance suggested that the Act permits environment secretaries to “interfere in [the] independent process examining whether secretaries of state or public authorities have failed to uphold laws relating to water pollution, air quality or the marine environment”. As above, only time will tell whether these concerns are well founded.

For those looking for a little more information….Alongside Professor Richard Macrory QC, Six Pump Court’s Chris Badger is currently producing a companion guide for the new Act, which will assist in the interpretation of specific sections. The book is planned to be released soon.

Environmental Law Conference – next week

Join Six Pump Court’s hybrid Environmental Law Conference next week on Friday 3rd December 2021 either in-person or online to hear from our specialist counsel and leading experts on current issues in environmental law and climate change. **Discounts are available for multiple bookings from the same organisation and for public sector/NGO delegates**.

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.

For those attending in-person, the conference will take place in the new Ashworth Centre at Lincoln’s Inn on 3rd December from 9am to 5pm. It will be simultaneously livestreamed, so that online delegates can follow the main panel presentations and Q&A online.

Discounts are now available for multiple bookings from the same organisation – 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 bridget.tough@6pumpcourt.co.uk

Environmental Law News Update

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  [2021] 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 [2020] 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 bridget.tough@6pumpcourt.co.uk