Environmental Law News Update

November 27, 2019

In this latest Environmental Law News Update, Charles Morgan and Mark Davies consider a case concerning the legality of an environmental permit and the coverage of environmental issues in the Labour election manifesto.


Environmental permits – a soluble problem

In Mott v Environment Agency [2016] 1 WLR 4338 the Court of Appeal recognised that “the court should afford a decision-maker an enhanced margin of appreciation in cases involving scientific, technical and predictive assessments.” (the case, in which members of Six Pump Court appeared, went to the Supreme Court on other issues, see Env Law News 19/2/18).

This principle has been considered in R (BACI Bedfordshire Ltd) v Environment Agency [2019] EWCA Civ 1962, which concerned a challenge to the validity of an environmental permit issued by the Environment Agency for a waste incineration plant. The challenge was supported by evidence from the redoubtable Professor Dr. Jeremy Ramsden. The permit was 220 pages in length and contained numerous conditions addressing the management of bottom ash and the containment of the heavy metals within it. These incorporated by reference a passage from the application to the effect that:

Any heavy metals within the [bottom ash] will be present as salts. These salts will be retained in solution when mixed with water and would not be expected to dissolve.”

It does not require much, if any, scientific knowledge to see that the second sentence is internally inconsistent, since something “in solution” is indeed “dissolved” as a matter of plain use of English. It was this fact, as much as the Environment Agency’s undoubted grasp of the chemical properties of heavy metal salts (including the elementary fact that they are soluble in water) which led the Court of Appeal to uphold the decision of Lang J. concluding that the Environment Agency had neither been misled by the error nor itself committed the same error and thereby wrongly assessed the risks of fugitive emissions via the surface water drainage system. Indeed the error had been expressly drawn to the Environment Agency’s attention by Professor Ramsden during the consultation process and duly noted. The permit read as a whole made it clear that the Environment Agency proceeded on the basis that the salts were soluble and had approached the assessment of the application entirely properly.

The central thrust of the decision is that the challenge, properly analysed, did not really concern “margin of appreciation” at all, but rather whether or not the decision had actually proceeded on a fundamental misunderstanding of basic physical chemistry. The judgment of Lindblom LJ, with whom Henderson and Peter Jackson LJJ agreed, contains also some interesting observations on the proper interpretation of an “all practicable measures” qualification to a condition in a permit and its reconciliation with EU requirements of an absolute nature, and the law relating to mistakes of fact in public-law decision-making.


The environment in Labour’s Manifesto

Labour’s manifesto for the 2019 General Election (our third in four years, let us not forget) runs to around 105 pages. Pleasingly, the section entitled ‘A Green Industrial Revolution’ takes up around 14 or so pages, which is subdivided into ‘Economy and Energy’, ‘Transport’, ‘Environment’ and ‘Animal Welfare’. Readers should note that the Labour manifesto has been covered because it was published first, not for any other reason!

Starting with the ‘Economy and Energy’ section, this contains bold statements about ‘kick-starting’ a Green Industrial Revolution by a ‘Green New Deal’, with the laudable aim of halving emissions by 2030 in accordance with recommendations from the IPCC. The introductory section finishes, ‘[Labour] have turned [the global movement on climate change’s] demands into detailed, credible plans for real change’.

The ‘detailed and credible plan’ starts with the creation of a Sustainable Investment Board (the Chancellor, Business Secretary and Governor of the Bank of England) to oversee and co-ordinate investment, with the Office for Budget Responsibility incorporating climate and environment impacts into its forecasts. A £400 billion National Transformation Fund (£250 billion of which will directly fund a Green Transformation Fund) will be launched and the Treasury’s investment rules will be re-written to guarantee that ‘every penny spent’ is compatible with climate change targets. A national Investment Bank, supported by a network of Regional Development Banks, will provided £250 billion of lending for ‘enterprise, infrastructure and innovation over 10 years’. There is also a suggestion that the rules of listing on the London Stock Exchange will be changed so that large carbon emitters will be delisted.

In relation to energy use, Labour promises 7,000 new offshore wind turbines 2,000 new onshore wind turbines, 22,000 football pitches worth of solar panels (if a football pitch is roughly an 1.76 acres, that’s 38,720 acres of solar panels – the City of London covers 716.80 acres), new nuclear power for energy security, trial and expansion of tidal energy, investment and reduction in the costs of renewable and low-carbon hydrogen production and an upgrade to the highest standards of energy-efficiency for all of the UK’s 27 million homes by 2030. A tax will be introduced on oil companies.

The section on ‘Economy and Energy’ goes on…

The section on ‘Transport’ reveals that Labour’s transport policies will be driven by cutting emissions, however most of the proposed policies (public ownership of the railways, etc.) do not reference to how they will achieve a cut in emissions. There are, however, commitments to position the UK ‘at the forefront of the development and manufacture of ultra-low emission vehicles’ and an assertion that ‘any expansion of airports must pass our tests on air qualify, noise pollution and climate change obligations and countrywide benefits’. Labour aims to end the sale of combustion engine vehicles by 2030.

The section on the ‘Environment’ is complemented by Labour’s Plan for Nature. It states that a Climate and Environment Emergency Bill, setting out in law robust, binding new standards for decarbonisation, nature recovery, environmental quality and habitats and species protection, will be introduced, and that existing EU standards of environmental regulation will be maintained and continuously improved. Other issues covered are a healthy environment, nature restoration, land, food and waste and recycling.

The final section concerns ‘Animal Welfare’. It is the shortest of all the sections (really only three paragraphs in length, although it does have a nice picture of a badger) and commits to prohibiting fox hunting and ending the cull of badgers. An animal welfare commissioner would be introduced and the sale of snares and glue traps prohibited.

In relation to the environment, all in all, Labour’s manifesto starts well with the environment playing a central role in economic policy, but then it rather fizzles out. Lots of bold claims are made but, despite the promise of ‘detailed and credible plans’, no such information is forthcoming; there is no detail as to how promises will be funded (cf. the tax on oil companies, which is a bald statement) and some of the proposals are plainly popular vote winning manifesto pledges. Grade: B-


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