Environmental Law News Update

Human Rights and Climate Change under the ECHR.

On 9th April, the European Court of Human Rights handed down three decisions in cases brought by applicants contending that the respondent governments had violated the European Convention on Human Rights by failing to take adequate measures to combat climate change. The three cases were all heard by the same judges, and a number of other cases were adjourned pending the decisions in these cases. We have summarised the 3 decisions in our blog here

The decision in the Swiss case is the first time that the Court has recognised climate change as a significant threat to human rights, requiring effective action from states to address its impacts.  The rejection by the Court of the other two cases, against Portugal and France, does not detract from this important landmark in the court’s jurisprudence.  As the decisions were taken by the judges sitting in Grand Chamber, they are final and there is no further right of appeal from them.

There was one dissent amongst the 17 judges considering the Swiss case.  The British Judge, Judge Eicke, expressed a partly dissenting and partly concurring opinion, which is annexed to the judgment.  He agreed that there had been a violation of Article 6 (for different reasons), but not of Article 8. His concern is that, whilst sharing the very real sense of and need for urgency in relation to the fight against anthropogenic climate change, the Court “has gone well beyond what I consider to be, as a matter of international law, the permissible limits of evolutive interpretation” of the European Convention on Human Rights.  His opinion is the first in what may prove to be a considerable body of legal criticism of this decision.  But it does not detract from the fact that the main Court has accepted that the human rights of present and future generations are in issue here.  Their stated overall rationale (§ 499) is that: “[i]n view of the urgency of combating the adverse effects of climate change and the severity of its consequences, including the grave risk of their irreversibility, States should take adequate action notably through suitable general measures to secure not only the Convention rights of individuals who are currently affected by climate change, but also those individuals within their jurisdiction whose enjoyment of Convention rights may be severelya and irreversibly affected in the future in the absence of timely action.”

Biodiversity Net Gain markets – lessons from REDD+?

Biodiversity net gain (“BNG”) is a topic regularly appearing in the news and is now a live consideration facing developers across the country. We have explained before that by Schedule 7A of the Town and Country Planning Act 1990, developers must deliver a BNG of 10%. The interesting question is in the ‘how’.

The ways in which a developer can achieve their BNG are:

• creating biodiversity on-site, or
• creating biodiversity using the developer’s own land off-site, or
• purchasing ‘biodiversity units’ on the market, or
• buying statutory biodiversity credits from the government.

That last option of statutory credits, provided for by Section 101 of the Environment Act 2021, is in fact called a “last resort” by Government guidance[1], and is to be approached because “it is not possible to restore habitats on-site or by buying off-site units”. Developers in fact should prove they need statutory credits and are to provide “evidence that the developer approached 3 local or national suppliers, habitat banks or trading websites and that insufficient off-site options are available” in their application. The Government’s push is clearly towards the growth of the biodiversity unit market, rather than statutory credits. A number of websites have now set themselves up as biodiversity unit marketplaces, viewable via a simple internet search. Those websites list hedgerows, meadows, wetlands and woodlands as biodiversity units, calling on prospective buyers searching for units.

Markets for demonstrated biodiversity growth are active elsewhere, and readers will know about REDD+ and the global carbon market. REDD stands for “Reducing emissions from deforestation and degradation of forests”, with the “+” standing for sustainable forestry management and enhancement of forestry carbon stocks. REDD+ has been the subject of a number of criticisms, including that the money from carbon credits does not actually reach the forest areas on the ground, inaccurate measurement of sequestered carbon, inadequate monitoring of REDD+ projects over time, and the creation of perverse incentives. These are of course material lessons for participants in the new biodiversity unit market, and indeed, are being taken seriously abroad. The strongest evidence of such focus is that last year, the US regulator, the Commodity Futures Trading Commission, established an Environmental Fraud Task Force, to “examine, among other things, fraud with respect to the purported environmental benefits of purchased carbon credits” [2].

Environment Agency continues to target water companies

On 26 March 2024 the Environment Agency (“EA”) launched its whistleblowing portal as a feature of its “continued commitment to stronger regulation and tougher enforcement to improve water quality”. The portal allows workers in water, waste, nuclear, fishing, agriculture and chemicals to report wrongdoing by their employer.[3]

The portal does not reflect a change to the regulatory regime but one would think that it is designed to make it easier for workers to blow the whistle. As a prescribed person within the meaning of the Employment Rights Act 1996, a worker may make a qualifying disclosure directly to the EA – see section 47 of the 1996 Act. A worker who makes a qualifying disclosure has a right not to be subjected to a detriment or dismissal by their employer because of the disclosure. A qualifying disclosure must relate to the environment and include information relating to one or more of the following: a criminal offence; risk of or actual damage; that the company is breaking the law in connection with its statutory obligations; the covering up of any wrongdoing.

Though the portal is not specifically limited to disclosures by water company workers, communications around the launch of the portal explicitly mention water companies.[4] The timing of the launch is interesting, coming the day before the EA published its storm overflow spill data for 2023, which attracted coverage in the national press. The data shows a 54% increase in the number of sewage spills compared to 2022, and a 13% increase compared to 2020.[5] The EA attributes part of the increase to rainfall in 2023, which was identified by the Met Office as the 6th wettest year since records began in 1836, with 2020 being the most comparable year for rainfall where relevant data are available.[6]

[1] https://www.gov.uk/guidance/understanding-biodiversity-net-gain

[2] https://www.cftc.gov/PressRoom/PressReleases/8736-23

[3] https://www.gov.uk/guidance/whistleblowing-report-serious-wrongdoing-to-the-environment-agency

[4] https://www.gov.uk/government/news/whistleblowing-portal-launched-in-latest-water-company-crackdown

[5] https://www.gov.uk/government/news/environment-agency-publishes-storm-overflow-spill-data-for-2023#:~:text=The%20EA%20is%20already%20conducting,of%20over%20%C2%A3150%20million.

[6] https://www.metoffice.gov.uk/about-us/press-office/news/weather-and-climate/2023/2023-was-second-warmest-year-on-record-for-uk