Environmental Law News Update

January 15, 2020

In this latest Environmental Law News Update, Charles Morgan, Gordon Wignall and Mark Davies consider the Wellbeing of Future Generations Bill, the Dutch Supreme Court’s ruling in the Urgenda litigation and the role of local authorities in climate change and nuisance law.


Wellbeing of Future Generations Bill

The private members’ Wellbeing of Future Generations Bill received its first reading in the House of Lords last week. It might be termed “anti-short-termism” legislation.

Part 2 of the Bill introduces the “future generations principle”, requiring public bodies to act “in a manner which seeks to ensure that the needs of the present are met without compromising the ability of future generations to meet their own needs.” That is accompanied by a new attempt at a definition of “sustainable development” as “the process of improving the economic, social, environmental and cultural wellbeing of the United Kingdom by taking action, in accordance with the future generations principle, aimed at achieving the wellbeing goals …” Those goals must be set by the Secretary of State after public consultation and the convening of a Citizen’s Assembly. Public bodies must in turn “carry out” sustainable development by setting, publishing and meeting “wellbeing objectives” aimed at contributing to achievement of the wellbeing goals. Public bodies are specifically required to take account, amongst other things, of “the importance of balancing short-term needs with the need to safeguard the ability to meet long-term needs, especially where things done to meet short term needs may have detrimental long-term effect”.

The Secretary of State will be required to publish an annual “wellbeing goals report” and also, within a year of the election of a new Parliament or appointment of a new Prime Minister, a “future trends and risks report”, which must address, amongst other things, environmental risks. Ministers will be required collectively to produce an annual “wellbeing objectives report”. The Secretary of State is also required to issue guidance to public bodies about the exercise of their functions under Part 2, which public bodies must take into account.

Part 3 provides for the creation of a Future Generations Commissioner and Part 4 provides for the creation of a Joint Committee on Future Generations, which must produce annual reports. Needless to say, the future wellbeing of the Commissioner and Committee members is itself assured by provisions for their remuneration, allowances, gratuities and pensions.

Part 5 is entitled “Wellbeing and Companies” and requires the Secretary of State to produce regulations requiring the inclusion in the directors’ reports of certain companies of “an explanation as to whether, and how, each of the strategically significant activities of the company advances, detracts from, or is neutral with respect to the wellbeing goals …”. This is an interesting example of the current trend towards compelling companies to think about the wider, non-economic aspects of their behaviour.

Part 6 addresses “Wellbeing and Procurement” and Part 7 miscellaneous other matters.

It is fortunate that words are not regarded as a form of pollution; the enactment of this Bill will certainly generate lots of them. Its underlying and commendable philosophy appears to be that by making people think about things and articulate that thinking and their justification for their acts, appropriate action will emerge and prevail. In legal terms, the various duties created in the Bill are at a very high level of abstraction and likely to be regarded as of the “aims” variety rather than provisions directly giving rise to specific, readily enforceable requirements. They will create a further context to decision-making by public bodies, to be weighed in the balance in any challenge.

The full text of the Bill may be found here.


Urgenda succeed in the Dutch Supreme Court

Shortly before Christmas the Dutch Supreme Court upheld the District Court and Court of Appeal’s decisions in the Urgenda litigation, brought on behalf of 886 Dutch citizens, finding that the Dutch government has a legal duty to prevent dangerous climate change.

The decision marks the culmination of half a decade of litigation in which the District Court of the Hague initially ruled on 24 June 2015 that the government must cut its greenhouse gas emissions by at least 25% by the end of 2020 against a 1990 baseline. The Dutch Government’s appeal was rejected on 9 October 2018 in the Court of Appeal and on 20 December 2019 the Supreme Court dismissed the final appeal.

Whilst the Supreme Court ruling does represent a momentous victory for Urgenda, the ambit of the disagreement in the case was relatively narrow. Both Urgenda and the Dutch state accepted that greenhouse gas emissions should be reduced quickly, but they disagreed as to the rate at which that reduction should take place. The Dutch State’s target was for a reduction of 20% by 2020 against a 1990 baseline, whilst Urgenda argued successfully that it should be 25%.

The Supreme Court’s decision is based on the UN Climate Convention and on the Dutch State’s legal duties under the European Convention for the Protection of Human Rights and Fundamental Freedoms insofar as dangerous climate change poses a risk of serious impacts on the rights to life and well-being of residents of the Netherlands.

Whether a similar case would succeed in England and Wales is an interesting question and surely one which will inevitably be posed. As a country around one third of the Netherlands lies below sea level, with much more being at sea level or just above, and therefore the country as a whole is placed at serious risk from sea level rise caused by climate change. With England and Wales less susceptible to such risks it must be that very careful consideration would have to be given to show how climate change poses risks of serious impacts on the right to life for such a case to succeed.


Climate Change and Nuisance Law: the role of local authorities

Climate change litigation in the common law nuisance context continues to develop incrementally in the US.  So far as we are aware, no global climate change case has yet succeeded in the US, but we like to keep an eye on how these cases are progressing, in the event that they say something about such cases in England and Wales. Uncertainty about how climate change cases should be presented is shown by the ‘tactical’ manoeuvres still being played out.  In particular, the parties, plaintiff and defendant, continue to skirmish as to whether these are federal or state cases.
This skirmishing is relevant, in part at least, because defendants have discovered the existence of early ‘knock-out’ blows depending on whether domestic legislation provides a ready answer to the control of climate change (displacing the common law), or whether the principle against ‘extraterritorial’ should apply, prohibiting determinations by domestic juries.  There is a real question as to how any domestic tribunal should determine the balancing exercise required to be made between rival parties in any nuisance case (given the global context), and this argument is attractive to US courts.  All of these issues would be relevant within the jurisdiction of England and Wales.
A striking feature of the US nuisance claims is that the state is commonly the plaintiff.  In England and Wales, a local authority has the power, like the Attorney-General, to act on behalf of the general public to maintain a case of public nuisance.  However, in England and Wales, local authorities would have to adopt this role much more aggressively than they currently do if they want to take up the climate change cudgels.
US states have had long enjoyed a role parentis patriae, and this is the basis of their role as claimants.  They have an eye to the enormous costs they are likely to incur having to deal with public health issues, infrastructure damage and many other likely demands on their purses.
For a fuller account of recent relevant cases in the US covering these issues, see the article on the Chambers website here


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