Environmental Law News Update
July 24, 2020
In this latest Environmental Law News Update, William Upton QC and Mark Davies consider a challenge from Plan B over the ‘unlawful allocation’ of Government and Bank of England funds, a commitment by Apple to achieve carbon neutrality by 2030 and liability for environmental damage from land drainage.
Plan B challenge the ‘unlawful allocation’ of Government and Bank of England funds
Readers may recall that last week we covered the ‘build back greener’ announcement and concluded that, although it is a step in the right direction, it is still a sticking plaster when compared to the recent recommendations of the Committee on Climate Change. Well…
On 21 July, Plan B sent its latest pre-action protocol letter to the Government. It alleges the unlawful allocation of UK Government and Bank of England funds, as well as the failure to take into account the Climate Change Act, the Paris Agreement, the Human Rights Act and other legal commitments when designing and implementing the COVID Recovery Programme.
As the letter makes clear, the challenge is to the totality of the financial measures designed to support the economy following the interruption caused by the pandemic including:
The UK Treasury’s support for the economy or any section of it that was announced after 1 March 2020; and
Any such future announcements up to and including the anticipated Autumn Budget of the UK Government.
What Plan B seeks to achieve by the judicial review (if it does not receive a satisfactory answer by 4 August) is:
A Declaration that the Recovery Programme must be consistent with the Government’s obligations under the Climate Change Act 2008, the Paris Agreement and the Human Rights Act 1998; and
The quashing of all parts of the Recovery Programme which are inconsistent with such obligations.
This presents a fascinating, extraordinarily wide field of challenge, which could ultimately be part of the challenge’s downfall; the remedy sought could require a court to perform a detailed, ‘red-line’ analysis of months’ worth of Government policy, rather than examining the lawfulness of a single, or even set of, policy choices.
Definitely one to watch unfold.
Apple commits to carbon neutrality for its supply chain and products by 2030
With very little congratulations, simply ‘well, good’, or perhaps, ‘about time’ might be your response to Apple’s announcement that by 2030 all of its supply chain and products will be carbon neutral. But perhaps the company deserves a little more credit than that.
Apple is already carbon neutral across its own global operations, but this goal, if it can be met, will mean that every Apple device sold will have no impact on the climate. Given that the company’s market capitalisation is over $1 trillion (greater than many countries’ GDP) it is perhaps slightly more of an impressive commitment and one which is praiseworthy.
Apple’s plan is set out in its 2020 Environmental Progress Report, which outlines that it will reduce emissions by 75% by 2030, whilst developing ‘innovative carbon removal solutions’ for the remaining 25%. The company’s 10-year roadmap includes: low carbon product design; expanding energy efficiency; reliance on only renewable energy; innovations in processes and materials; and carbon removal.
So on this occasion (assuming they can stick to it), well done Apple… now it is up to other companies and countries to follow suit.
Liability for environmental damage from land drainage (and other public operations?)
How land drainage should be managed where there are important local nature conservation concerns has been a particular problem issue in recent years. It has now come to court, in a reference by the German courts to the Court of Justice of the European Union – Naturschutzbund Deutschland– Landesverband Schleswig-Holstein e.V. v Kreis Nordfriesland (Judgment in Case C-297/19 , July 2020).
What we would think of as the local drainage board had been operating a pumping station to help drain land on the Eiderstedt peninsula, for the purposes of habitation and agricultural use. However, a large part of the area had been designated as a protected area for black tern, a European Protected Species and – importantly – an aquatic bird. The local branch of the well-known NGO, Naturschutzbund Deutschland, considered that, by operating the pumping station, the local board had caused environmental damage harming the black tern and brought an action under the local laws based on the Environmental Liability Directive 2004/35 to get the drainage board to remedy it.
The Directive applies to environmental damage and damage to protected species and natural habitats caused by any occupational activities. The CJEU has put to rest the argument that this excludes public authorities acting under statutory duties. The CJEU considers that an “operational activity” in Directive 2004/35 is not limited to market-related activities but would include all activities carried out in an occupational context – including those carried out by a public body under its statutory powers and duties. However, the other argument was that the pumping station was exempt from this liability as it resulted from the ‘normal management’ of the site concerned (an exemption allowed for in the Directive). The CJEU has agreed with this, but only to the extent that the management takes account of the objectives and obligations laid down in the Habitats Directive and the Birds Directive, and not just the established farming practices. It can only be regarded as ‘normal’ if it does. It is not enough therefore to show that the management measures are long-established and can be regarded as usual for the site concerned, as this will be insufficient if they call into question compliance with the objectives and obligations laid down in the Habitats Directive and the Birds Directive. That is a difficult standard to meet in practice. The case now goes back to the German court to decide on the facts. But it leaves you wondering how many established practices and procedures will need reconsidering.
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