Environmental Law News Update

In this latest Environmental Law News Update, William Upton KC, Christopher Badger and Amy Taylor consider coal mines and climate change, reinvestment of water company fines into environmental improvements and the government’s new measures to tackle rising energy bills.

Coal mines and climate change

This week finally saw the decision by the Secretary of State to grant permission for the Whitehaven coalmine in West Cumbria (7 December 2022; APP/H0900/V/21/3271069), well clear of the COP-26 and COP-27 summits that its announcement might have clashed with.  It has already produced a large amount of protest from those seeking to end our reliance on coal, and we can all predict that there is likely to be further litigation on the decision itself.  There is no doubt much more to be said about this issue.  Three things stand out for now.  Firstly, that this new coal mine respects the strong policy restriction on new coal extraction set out in the NPPF (para 217). A difficult planning balance has been struck,  and it is, ultimately, an exercise in judgment that this new supply of coal for making steel provides national, local and community benefits which clearly outweigh its likely impacts.  Secondly, it is an example of how the idea of achieving net zero by 2050 can still include the transitional use of fossil fuels before we get there. The EU Commission itself has recognised “the indispensable role of coking coal during the steel industry’s transition to climate neutrality”. The proposed development would have a broadly neutral effect on the global release of Greenhouse Gases from coal used in steel making, whether or not end use emissions are taken into account, and it would enable some of the coal that will be used to be sourced from a mine that seeks to be net zero.  Lastly, one point of more general legal application is the consideration of “whether downstream emissions should be taken into account in the consideration of the overall effect of the proposed development on climate change” (paras 34 to 36).  The Secretary of State accepted the approach set out in the 2022 Court of Appeal decision in Finch (a case on an oil well development) which held that the question of whether downstream emissions ‘must’ be assessed as well as the site’s own emissions is a question of fact and judgement for the planning decision-maker.  In this case:

“35. Overall, the Secretary of State agrees with the Inspector that the impacts of GHG emissions from the subsequent use of the coal, as part of a blended coke product, at indeterminate proportion and in an indeterminate quantity, with no knowledge at this stage of the nature and efficiency of the particular blast furnace and any GHG mitigation measures that may be installed, cannot reasonably be regarded as indirect significant effects of the proposed development. …”

Water company fines to be reinvested into the environment

The Government plans to “channel money from water company fines into environmental improvements”.

Under new plans, it is intended that ringfenced funds will go to Defra and will be invested directly back into environmental and water quality improvement projects. The details of the plans are intended to be published next year.

Since 2015, it is reported that the Environment Agency has concluded 56 prosecutions against water and sewerage companies, with fines totalling more than £141 million. The majority of this figure was paid by Southern Water, who received a record penalty of £90 million last year.

Defra has reported that the Environment Agency has had its funding boosted by £2.2 million per year specifically for water company enforcement activity. This is clearly important, as the Environment Agency’s Annual Report for 2021-2022 identified, as one of the main risk areas, that funding pressures might prevent the Environment Agency delivering its statutory regulatory powers and duties, including on compliance and enforcement. This identification of a new corporate risk is a departure from the previous year’s Annual Report and recognises that the Environment Agency is aware of pressures that have the potential to impact on its ability to deliver successful environmental outcomes.

On November 24, Anglian Water were fined £536,000 after more than 3.9 million litres of partially treated effluent was discharged into a river. An unusual fault with the computer running the plant caused the process to pause for two and a half days. 30 small fish were killed including 15 bullheads and some leeches were killed. An investigation by the Environment Agency alleged failures across the water company’s planning, management and monitoring of the Doddinghurst Water Recycling Centre near Brentwood. The judge found that the issue may have been found during a visit to site some 3 months previously. Interestingly, in addition to the financial penalty imposed by the Court, prior to the hearing, Anglian Water also chose to donate £62,000 to the Essex and Suffolk Rivers Trust to help fund their projects and benefit the local environment.

• See the Defra press release
• See the news report relating to Anglian Water

The government’s new measures to tackle rising energy bills

The government has recently announced new measures which aim to help hundreds of thousands of people reduce their energy bills. Since it was launched in January 2013, the Energy Company Obligation (ECO) schemes have delivered approximately 3.5 million energy-efficiency measures in around 2.4 million homes.

A new £1 billion ECO+ scheme will extend support to those who do not currently benefit from any other government support to upgrade their homes. Joining the £6.6 billion ‘Help to Heat’ energy schemes, this £1 billion funding aims to provide hundreds of thousands more households with new insulation and therefore lower bills. Around 80% of the £1 billion funding will be made available for those in the least energy-efficient homes – i.e. those with an EPC rating of D or below – and in the lower Council Tax bands. Around 20% of the fund will target those who are the most vulnerable, including those on means-tested benefits or in fuel poverty. The aim is to save consumers around £310 a year.

A new £18 million campaign, expanding the government’s ‘Help for Households’ campaign, will give the public advice on how they can save hundreds on their bills without sacrificing comfort. This includes promoting the government’s top tips, including turning radiators down in empty rooms and draught-proofing windows and doors.

Recent statistics show that the number of homes with an energy efficiency rating of C or above is at 46% and rising, up from 13% in 2010. The government aims for all homes to meet EPC band C by 2035. The ECO+ scheme will also support the government’s new ambition to reduce the UK’s final energy consumption from buildings and industry by 15% by 2030.

The ECO+ scheme will run from spring 2023 for three years. The press release concerning these new measures repeatedly states that the government aims for the UK to become energy independent. However, these new measures, which are in essence new insulation and turning radiators down in empty rooms, do little to achieve this aim. Although every little helps, perhaps throwing £18 million at a public information campaign and offering certain individuals potential savings of £310 a year is not enough to achieve the government’s aims or protect people from the cost of living crisis.