Environmental Law News Update

December 18, 2019

In this latest Environmental Law News Update, Charles Morgan, Gordon Wignall and Christopher Badger assess our blog predictions made back in January, the progress of the European Green Deal and this year’s selection of Christmas songs for environmental lawyers.


Our predictions – how did we do?

As we approach the end of the year, we assess the predictions we made back on 7 January. They were:

  • A shake-up of the approach to waste crime
  • More interest in the environmental impacts of the chemical sector
  • A redundant Environment Bill

Waste crime – a frustrating year

The Environment Agency published its Corporate Scorecard back in August 2019. This showed that during the fourth quarter, active high risk waste sites increased from 233 to 250, against a target for the EA of just 196. This then rose to 260 in the first quarter of 2020/2021. However, the EA have pointed to additional funding of £30 million and that they expect this additional support to help deliver against their challenging target in the future. The EA also highlighted the new Joint Unit for Waste Crime, through which over 140 cases had been referred to HMRC with over 50 resulting in working cases.

Chemical regulation – dominated by Brexit

A year of frustration and uncertainty, as the chemical industry looked desperately for some form of concrete guidance from Government that simply didn’t materialise. Urged to prepare for a no deal Brexit, as of October it was reported that some 48% of UK chemical companies had not transferred their REACH registrations to EU-based entities.

The environmental impacts of the chemicals sector remain critically important. By way of example, a recent survey by PwC identified that sustainability impacts outweigh macroeconomic concerns. The top four transformational factors, assessed by PWC, are:

  • Resource and materials substitution;
  • Decarbonisation of the economy
  • Use of renewable energy sources ; and
  • Elimination of waste.

PwC’s report can be found here

A redundant Environment Bill?

At the start of the year, we canvassed the possibility that the heralded Environment Bill may become redundant, either because we didn’t actually Brexit after all or because the UK committed to retaining EU environmental laws. In fact, the Bill never made it through Parliament. It received its Second Reading in the final days of the last Parliament, but despite being broadly welcomed by all sides of the House, the Bill has been scathingly criticised by 23 environmental law experts, who argued that it would neither maintain current environmental standards nor would it enshrine the highest standards into law.

Putting the election rhetoric to one side, the election victory and majority in favour of the Conservatives effectively guarantees Brexit, as well as the creation of the Office for Environmental Protection and the Environment Bill. It doesn’t guarantee environmental standards will not be compromised. If anything, the Bill, its passage through Parliament and whatever form the inevitable Act takes, has just assumed even greater importance.

Future predictions

We will once again set out our environmental law predictions for the coming year in the first post of 2020.


The European Green Deal: December 2019 developments

On Wednesday 11 December 2019 the EU Commission published its European Green Deal Communication (COM(2019) 640 Final). This is a lengthy summary of the Commission’s collection of ambitions intended to achieve “no net emissions of greenhouse gases in 2050”.

The Communication is a very important read for anyone who is interested either in future regulatory requirements or in business and industrial opportunities. It should be read together with the very short Conclusions of the Council published on 12 December (CO EUR 31 CONCL 9).

The Commission states that its targets will need a lot of hard policy and legislative decisions to be taken within five years. ‘Not so fast’, were the reported responses of Hungary (which promotes nuclear energy) and Poland (which substantially relies on coal). Accordingly, the Council’s Conclusions record its decision as to a “climate-neutral EU by 2050, in line with the objectives of the Paris Agreement” as follows:

“One Member State, at this stage, cannot commit to implement this objective as far as it is concerned, and the European Council will come back to this in June 2020”.

The Communication itself sets out many detailed (if ‘high-level’) ambitions, in particular for the extraction of minerals, energy-intensive industries (steel, chemicals, cement), transport and chemicals. There is to be a “zero pollution action plan for air, water and soil”.

On construction, the Communication includes extensive building renovation policies, and in the cases of electronics and durables there should be a ‘right to repair’ (policies to “curb the built-in obsolescence of devices”) and measures to encourage the sharing of goods and services.

As to trans-boundary waste shipment: “The EU should stop exporting its waste outside of the EU”.

Altogether there is too much even adequately to be able summarise the contents in this blog.

One aspect of interest which merited both a comment in the Conclusions and substantial press interest, is a brief passage in the Communication which recognises the need to control “the risk of carbon leakage in a WTO compatible way” by means of “a carbon border adjustment mechanism for selected sectors” (for which read “tariffs”).

The Communication succinctly explains the underlying problem as perceived by the Commission thus:

“As long as many international partners do not share the same ambition as the EU, there is a risk of carbon leakage, either because production is transferred from the EU to other countries with lower ambition for emission reduction, or because EU products are replaced by more carbon-intensive imports. If this risk materialises, there will be no reduction in global emissions, and this will frustrate the efforts of the EU and its industries to meet the global climate objectives of the Paris Agreement”.

Overall, the Commission has recognised that its Communication is not just a set of environmental policies. It extends to specific EU competences in diverse areas including, fiscal and finance (subsidies for industry and individuals who can afford higher prices), trade and competition.

The Communication can be found here
The Conclusions here


This year’s Christmas songs for environmental lawyers

We return to our annual theme of Christmas songs for the environmental lawyer. We’ve decided this year to focus on songs relating to noise nuisance, in a thinly-disguised ploy to mention again the Six Pump Court involvement in Coventry v Lawrence (and many other cases). Job done.

There is no doubt that Silent Night (The Shepherds feat. Joseph, Mary & Child) got things off to a cracking start in ancient times, setting a definitive 0 dB reference point and with early use of the criterion of a peaceful night’s sleep as a threshold test for nuisance (“Heavenly hosts singing Alleluia!” being an apparently acceptable level of intrusion). At the same location and on the same occasion, Away In A Manger (verse 2) relates noise levels from cattle at a volume sufficient to wake a young Child (fortunately without tears) – an illustration of the difficult issues which can result from mixed-use barn conversions.

By Victorian times The Twelve Days of Christmas invites us to imagine the simultaneous festive clamour of ten pipers piping and nine drummers drumming. Once we enter the 20th Century, the richer and more legally pertinent pickings are to be found in the wider song catalogue. Lazy Sunday (The Small Faces) summarises succinctly the classic residential noise dispute: “Wouldn’t it be nice to get on with me neighbours, but they make it very clear they’ve got no room for ravers. They stop me from groovin’, they bang on me wall …”. Noise by the Kinks (itself not the quietest of songs, presumably to make the point) refers to noise at work, at home and in the street (from traffic and street works) and the wearing cumulative effect on the singer, arriving at the conclusion that “There oughta be a law”, in evident ignorance of the already extant provisions of section 58(1) of the Control of Pollution Act 1974, the precursor to section 79(1)(g) of the Environmental Protection Act 1990.

Not all songs lament noise. Slade’s Cum on Feel the Noize celebrates it; so does Beautiful Noise by Neil Diamond, which begins with an orchestral rendition of the sound of car horns and rejoices in the background rhythm of noisy urban activity, describing it as “the music of life”. AC/DC defend their art in Rock and Roll Ain’t Noise Pollution and the lyrics of The Tubes’ Let’s Make Some Noise consist almost entirely of the repetition of the title (37 times) – although it’s at least possible that these last two songs are written in the language of innuendo.

The Sound of Silence (Simon & Garfunkel) is essentially a modern take on the Biblical theme, and leads nicely into what for lawyers is perhaps the most interesting noise-in-song-related tale of all. Songwriter Mike Batt (Bright Eyes, Remember You’re a Womble, Only A Winter’s Tale etc. etc.) recorded a track called A One Minute Silence, which consists of exactly what its title suggests. He was sued by the estate of the late John Cage, alleging infringement of Cage’s work 4’33”, a rather longer version of much the same thing, having perhaps rather mischievously invited this by crediting composition to “Batt/Cage”. The dispute was settled by a six-figure contribution to the John Cage Trust, Batt stating at the time: “Mine is a much better silent piece. I have been able to say in one minute what Cage could only say in four minutes and 33 seconds.”

We Wish You a Wombling Merry Christmas!


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