Environmental Law News Update

September 25, 2020

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Nicholas Ostrowski consider compliance with the Water Framework Directive, Law Commission proposals on reforming the confiscation regime and new proposals to hit net zero from the Climate Assembly UK.

A [watercourse in] Good Heart These Days Is Hard To Find

To comply with the Water Framework Directive, all surface water bodies in the UK must attain at least “Good” status by a date which has been extended from 2015 until 2021. It has recently been widely reported in both the specialist and popular press that in 2019 not a single one enjoyed Good status (which 14% of rivers, and a greater proportion of other water bodies, were able to achieve in 2016), an outcome which may be part of the explanation of why the 2019 figures have only just now been released. Nor is there any immediate prospect of improvement, and thus compliance, by either the 2021 deadline or the longest possible extension to 2027 (if forthcoming).

A major obstacle to compliance is the stringent “one strike and you’re out” or “one out, all out” nature of the classification system i.e. that if a watercourse fails to satisfy any one of the ecological or chemical criteria stipulated for the attainment of a particular status then it fails to achieve that status. A bit like having to get a minimum number of marks for each question set in an exam, instead of pinning all your hopes on your best three answers. If some cumulative pointing system were adopted instead, as the Environment Agency through its chief executive Sir James Bevan has proposed, then the pass rate would soar – in the case of rivers, the 2016 rate of achievement of Good status would have been 79%. The astute reader will, of course, have realised that this remarkable change of fortune would not be shared by the watercourses themselves or their fauna and flora – the dirty old rivers would just keep rolling along with exactly the same contents as before, including the chemicals from sewage, industry and agriculture which seem to be the principal problem (exacerbated by over-abstraction).

As well as a joint letter of protest from 18 NGOs, enter from stage left Feargal Sharkey OBE, former lead singer of The Undertones, a role which he followed with a successful solo career and then a stint as CEO of Music UK, the consortium of music copyright collection societies. Not content with all that, he is also a keen fly fisherman and has taken up the cause of the rivers and joined forces with the Good Law Project to seek judicial review of the failures of Defra and the Environment Agency to discharge their respective duties towards the aqueous environment. His expectations may be high, but he can’t blame it on his youth any more, and is certainly past the age for giving them both a good teenage kicking.

Could all of this have led to the recent summoning by the Environment Minister of the chief executives of 15 water and sewerage undertakers to “challenge” them to improve their environmental performance? And the announcement from Defra that it has earmarked over 700 storm overflows for investigation and over 200 overflows for improvement during the AMP 7 period (2020-25)?

Spot the songs: there are five allusions to four different songs in the above article. The first person to spot them all will be entitled to a free bottle of champagne. T&Cs below apply.

[Offer open for 7 days only, starting Thursday 24th September. Champagne must be collected and consumed on the premises of the Edgar Wallace Public House between the hours of 10pm and midnight. Correctly-fitted face mask must be worn throughout. Open to under-18s only].

Law Commission proposals on reforming the confiscation regime

£2,065,303,000. That is the amount of money which defendants have been ordered to pay under the Proceeds of Crime Act 2002 (‘POCA’) but which remains outstanding.

On any level that is a staggering amount of money and this unenforced debt as well as the large numbers of appellant POCA cases the senior courts have to deal with has led to a perception that the confiscation regime is ineffective and the legislation is too complex.

As practitioners working in criminal, planning or environmental law will know (particularly in waste cases), the threat of POCA proceedings is an important weapon in the prosecution’s armoury and does frequently result in large, sometimes eye-wateringly large, confiscation orders being made against defendants. The Law Commission has recently released a consultation on the POCA regime which, if enacted by Parliament, may have a significant impact on POCA proceedings in planning and environmental cases (https://www.lawcom.gov.uk/project/confiscation-under-part-2-of-the-proceeds-of-crime-act-2002/).

The Commission’s proposals are best described as ‘evolution not revolution’.

First, there are sensible proposals to simplify the timing in which confiscation proceedings take place.

Secondly, there are proposals to amend the way in which the system calculates the ‘benefit figure’ and the ‘recoverable amount’. The most important element of this change is a proposed amendment to the legislation to permit the prosecution and the court to disapply the ‘lifestyle assumptions’. These assumptions apply in certain cases (normally those where the offending has gone on for a long period) and require that a defendant’s benefit from crime for the purposes of calculating the confiscation order is not limited to what they have obtained from the offences for which they appeared before the court but is instead based on any benefit obtained over that period.

Finally, the Commission makes a number of proposals which address the way in which confiscation orders are enforced. Most strikingly there is a proposal that if a Defendant does not pay a confiscation order and is imprisoned then they should not be released unconditionally at the expiry of half the sentence (as they are currently) but should instead be released on licence subject to conditions which facilitate the enforcement of the confiscation order, and may be returned to custody during the licence period in the event that those conditions are breached.

For environmental law practitioners, the proposals to amend the way in which the ‘benefit figure’ is calculated will be of most interest. At the moment defendants in waste proceedings and planning cases often face confiscation proceedings on the basis that because the offences continued for some time the offences are ‘lifestyle’ offences and all the money which has passed through their accounts over the specified period is criminal proceeds even if they appear to have nothing to do with the actual waste/planning offence. As some defendants in waste/planning offences are not career criminals who may be operating legitimate businesses alongside their criminal undertaking, if the Commission’s proposals are enacted by Parliament defendants may well start to invite the court to disapply the lifestyle assumptions. This may result in very significant reductions to confiscation orders in such cases.

Responses to the consultation are due by 18 December 2020.

Climate Assembly UK publishes proposals to hit net zero

The UK’s Climate Assembly, a body of people intended to reflect all walks of life across the UK, has published its recommendations on how the UK should reach net zero.

Key recommendations include:

  • Taxes on flying should increase as people fly more often and as people fly further;
  • People in different parts of the country should be offered different solutions to zero carbon heating;
  • The future for food, farming and land should centre around local produce and local food production, a change in diet to reduce meat and dairy consumption by between 20% and 40% and a “managed diversity” of land use;
  • Emissions labels for food and drink;
  • Governments and employers should take steps to encourage lifestyles to change to be more compatible with reaching net zero;
  • The transition to net zero should be a cross-political party issue and not a partisan one;
  • We should get to net zero without pushing our emissions to elsewhere in the world.

There was little support for policies that would change income tax or working hours or that would introduce personal carbon allowances. There was also little support for the use of fossil fuels with carbon capture and storage to be part of how the UK generates electricity, with members preferring green technologies such as wind and solar power.

Interestingly, the assembly did not pass proposals that favoured getting to net zero at an earlier date than 2050.

The report can be found here

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