All posts by Bridget Tough

Environmental Law News Update

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

Wood spotted despite interference from trees

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

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

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

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

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

per Lord Briggs in Vedanta at [49].

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

Flood of trouble for the Environment Agency

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

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

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

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

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

Budget 2021

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

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

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

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

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

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

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

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

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

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

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

Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Mark Davies consider water pollution fines for Thames Water and fines in the US for a UK company found to be in breach of air pollution limits.

Thames Water fined £2.3 million for ‘foreseeable’ pollution

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

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

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

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

The Environment Agency’s press release can be found here

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

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

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

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

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

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

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

Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Noémi Byrd and Mark Davies consider a recent case involving the application of Energy National Policy Statements to nationally significant infrastructure projects, developments on legislation to curb sewage overflows and further delays for the Environment Bill.

Who’s counting? 

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

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

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

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

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

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

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

Wishin’ and a-hopin’

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

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

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

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

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

The Environment Bill has been delayed (again)

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

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

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

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

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

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, Nicholas Ostrowski and Mark Davies consider disputes over riparian rights and related land drainage issues, more public interest litigation from environmental groups and charities and the news that the US will re-join the Paris Agreement.

Riparian rights revisited
by “Chippy Northerner”

The rich list of characters created by John Mortimer QC in his “Rumpole of the Bailey” books includes Mr. Justice Oliver Oliphant, a High Court Judge of northern origins whose frequent invocation in court of “northern common sense” as the most reliable of touchstones was despised by Rumpole and thus, one supposes, by his creator too. One might even feel, on occasions, that this was reflective of a wider incidence of similar feeling at the less diverse Bar of yesteryear, and that this explains, amongst other things, why perfectly respectable decisions by judges in cases heard outside London (even including those of judges who usually did sit in London) were resolutely ignored lest infected with the same quality (perceived, presumably, as synonymous with “lack of intellectual rigour”).

A major step in the reform of this attitude has been the creation of the Business and Property Courts throughout England and Wales. Over the past three years these have generated a steady stream from the regions of valuable reported contributions to case law, including in the environmental field, the latest being the decision of Judge Mark Cawson QC sitting in the B&PC at Manchester in Bernel Ltd v Canal and River Trust [2021] EWHC 16 (Ch). It is a succinct and clear exposition of the law applicable to disputes over riparian rights and related land drainage issues of a kind which seem to be proliferating as developers struggle to create the sustainable drainage systems required of them by planning consents.

As we like to stress, these blog items are not case reports. So suffice it to say that if you have a case whose conduct would be benefited by insights into such issues as the methods of determination of whether a watercourse is natural or artificial, the degree of significance of a prior Environment Agency determination on that issue, the extent to which enjoyment of riparian rights can extend to artificially modified discharges, and the extent to which the benefit of a prescriptive easement might survive even radical change in the use of the dominant tenement, this is a go-to case.

Whilst on the facts neither riparian nor prescriptive rights were held to exist, the judge held obiter that neither of them would have been defeated by the mere fact of artificial modifications to the drainage into the relevant channel, because the new system was specifically designed to ensure that maximum rates of flow did not exceed preceding levels. This was so notwithstanding that overall quantities of flow over any given period of time would have been augmented i.e. the average flow would have been significantly higher than before. So far as the judgment reveals, there was no evidence that the overall increases in total volume would themselves have caused problems to the receiving watercourse (such as by increase in scour or cost of maintenance). Were that so, the position might have been different.

Tweets for tweets

There have, of course, been environmental organisations and charities bringing litigation to protect the environment for many years but a conspicuous development over the last few years seems to be a greater appetite by environmental groups and charities to bring public interest litigation. In the last six weeks (including the Christmas vacation) the courts have handed down no fewer than four judgments in such cases brought by ClientEarth ([2021] EWCA Civ 43), Wildjustice ([2021] EWHC (Admin)) and Friends of the Earth ([2020] UKSC 52, [2021] EWCA Civ 13). If one looks back over the whole of 2020 one can add Plan B Earth, Greenpeace and numerous local environmental groups and concerned individuals to the list of those who have brought claims before the courts.

The government would no doubt suggest that this is evidence that the Aarhus costs protection regime set out in CPR 45.41 – 45.44 is working and that the system should not be disturbed. That is debatable. A better answer seems to be that many of these environmental organisations have cottoned on to how to harness the power of social media to launch quick, effective and powerful publicity drives to raise awareness and cash to fund litigation.

Wildjustice is a good example of just how powerful combination of celebrity, social media and the environment can be. Set up by Ruth Tingay, Mark Avery and Chris Packham only in 2019 it deploys its social media savvy to great effect in seeking funding from the public to fund targeted litigation protecting the environment and claims, for instance, to have raised £48,500 in three days to bring a claim protecting badgers (see here). The model plainly works as they have achieved significant legal victories such as persuading DEFRA in October 2020 to concede a judicial review and reconsider the way in which pheasants and partridges are managed (see here).

Wildjustice’s latest foray before the courts in R (Wildjustice) v Natural Resources Wales [2021] EWHC 35 (Admin) was less successful in that its challenge to NRW’s licensing system for the shooting of wild birds was rejected by the High Court. Nevertheless Wildjustice claim, with some justification, that the case was a success for them as the court and NRW clarified a number of issues relating to the circumstances in which wild birds can be lawfully killed.

US to re-join the Paris Agreement

The Paris Agreement entered into force on 4 November 2016. Four days later, Donald J Trump was elected President of the United States. On 1 June 2017, he announced that the US would be withdrawing from the Agreement, however, pursuant to Article 28, no signatory may withdraw within three years of the date on which the Agreement came into force and therefore the notification was sent to the United Nations on 4 November 2019. The withdrawal process under the terms of the Agreement takes a further 12 months, and thus it was not until 4 November 2020 that the US officially withdrew from the Agreement.

Fortunately for proponents of the Agreement, on 3 November 2020 the US once again went to the polls and voted as to who should be the country’s President. Despite protestations to the contrary from certain quarters, Joe Biden won that election having already evinced his intention to re-join the Agreement if he was victorious. Thus, just hours after his inauguration on 20 January 2021, Biden signed an executive order indicating that the US would be re-joining after a 30-day notice period.

After the whirlwind of the last four years, the US will eventually have been out of the Agreement for slightly over 100 days, which seems like rather a waste of everyone’s time.

Waste of time or not, what happens next, and what form America’s new National Determined Contribution (“NDC”) takes, will be crucial. The NDC the US sent to the United Nations Framework Convention on Climate Change under the terms of the Agreement when it first joined was for, “…economy-wide emissions reductions of 80% or more by 2050.” But of course, since that NDC was submitted, the Intergovernmental Panel on Climate Change published (on 8 October 2018) its ‘Special Report on Global Warming of 1.5 degrees C’.

The Report, as readers will no doubt be aware, stated that for the target of 1.5 degrees C warming to be met (avoiding catastrophic climate change, it is important to recognise) global net human-caused emissions of CO2 would need to fall by 45% by 2030 against a 2010 baseline, reaching net zero around 2050.

So, the takeaway from all of this? The US has lost four years in the fight against climate change, and the World’s efforts have been dented as a result. If President Biden is serious about the US once again taking to the centre stage in responding to climate change, its new NDC is going to need to be far more robust than its original: net zero by 2050 at the very least. If America’s NDC is that ambitious, or indeed more ambitious, then, for the first time in a while, there would appear to be a little more light at the end of the tunnel.

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

Environmental Law News Update

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

Environmental Law Predictions for 2021

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

The Office for Environmental Protection

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

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

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

Export of waste abroad

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

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

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

Lawyers forced to rethink their carbon footprint

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

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

Should an Environmental Impact Assessment consider ‘indirect’ emissions?

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

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

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

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

When bad marks don’t count (continued)

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

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

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

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

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

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

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

Environmental Law News Update

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

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

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

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

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

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

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

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

Our January predictions

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

And finally…

Something In The Air

(Thunderclap Newman, 1969)

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

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

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

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

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

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

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

Merry Christmas!

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

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

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

Environmental Law News Update

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

Fatal Accident at Avonmouth

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

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

UK’s Sixth Carbon Budget Published

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

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

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

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

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

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

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

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

The letter from the CCC may be found here

The Budget may be found here

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

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

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

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

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

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

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

The consultation can be found here

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

Environmental Law News Update

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

ECtHR fast-tracks youth climate case

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

The complaint alleges:

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

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

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

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

Challenges to Environment Agency decisions post-2020

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

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

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

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

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

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

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

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

Friends of the Earth and Shell litigation: Update

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

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

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

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

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

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

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

Environmental Law News Update

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

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

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

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

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

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

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

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

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

Misleading environmental claims

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

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

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

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

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

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

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

Government announces its Ten Point Plan for a Green Industrial Revolution

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

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

The Ten Points are:

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

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

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

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

Environmental Law News Update

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Atmosphere – Amber.

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

Freshwater – Red.

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

Marine – Red.

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

Soils – Red.

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

Biota – Red.

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

Land – Red.

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

Minerals and resources – Amber.

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

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

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

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

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

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


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