Environmental Law News Update

November 20, 2020

In this latest Environmental Law News Update, Gordon Wignall, Christopher Badger and Mark Davies consider clarification on the sentencing guidelines from the Court of Appeal, measures to tackle misleading environmental claims and the announcement of the Government’s Ten Point Plan for a Green Industrial Revolution.

Court of Appeal reminds us: they are guidelines, not tramlines

In R v Lawrence [2020] EWCA Crim 1465, the Court of Appeal took the opportunity to reiterate that the Definitive Guideline for sentencing environmental offences is not a statute and can, where cases merit it, afford a great deal of flexibility to the sentencing Judge.

In this case, the appellant was the operations director and technically competent person of a waste business that suffered multiple waste fires. He had pleaded guilty to four offences, two in relation to the first fire in December 2012 and two in relation to the second fire in June 2013.

The Judge at the sentencing hearing found that culpability and harm for the first fire was negligent category 3. A small fine was imposed and no complaint was made about this.

For the second fire, the Judge found that culpability was highly reckless due to the risks that must have been apparent after the first fire. He also found that all five category 2 harm criteria were met, albeit that there were no category 1 features. He did find that the cumulative effect of the category 2 features had the potential to raise the overall harm into category 1 and that there were multiple aggravating features. The sentence imposed was 9 months imprisonment, suspended for 2 years and 180 hours of unpaid work.

The central submission of the appellant was that the Guideline did not permit the Judge to aggregate the features of the offence to the level of a category 1 harm case.

The submission was roundly rejected. The Court found that there were ample findings made by the Judge to justify finding harm at the top of category 2 with other features available in the offending to aggravate the offending well beyond that. The Guideline explicitly states that “in some cases, having considered these [aggravating] factors, it may be appropriate to move outside the category range”.

Perhaps more importantly, the Court then went on to state that irrespective of this wording, no one committing such offences should think that multiple aspects of his/her wrongdoing, however grave, will receive no punishment because they all fall within one category of harm. Despite this element of hyperbole, the Court of Appeal rightly drew attention to multiple authorities that stress that it is not sensible to construe the Guidelines as if they are a statute. Whilst not new, it’s a helpful reminder that sentencing is still a matter of judgment and discretion, not simply a tick box exercise.

Misleading environmental claims

On 2 November the CMA (Competition and Markets Authority) announced that it was commencing an investigation to better understand how consumer protection legislation can be used to tackle false or misleading environmental claims that affect consumers.

The end result of the investigation appears to be a broad one, both “to produce guidance for businesses on how they can be transparent in the way that they market goods and services in relation to any claims made about environmental impact”, as well as to provide advice to government.

Most regulation about claims as to the environmental benefits of particular goods and services are enforced by way either of trading standards regulations (see the Consumer Protection from Unfair Trading Regulations 2008) or by means of the broadcasting or non-broadcasting codes of the Advertising Standards Authority.

Defra provided relevant guidance in its Green Claims Guidance dated February 2011.

The CMA has an important role overseeing consumer protection issues, and it should be noted that on 5 May 2020 the EU’s Consumer Protection Co-Operation Regulation ((EU) 2017/2394) was given effect by means of the Consumer Protection (Enforcement) (Amendment etc.) (EU Exit) Regulations 2019/203, giving the CMA enforcement powers in respect of digital representations made on-line (by amendments to the Enterprise Act 2002).

The CMA welcomes responses from consumers and business to: misleadinggreenclaims@cma.gov.uk.

https://www.gov.uk/government/news/cma-to-examine-if-eco-friendly-claims-are-misleading announces: “the CMA intends to publish guidance for businesses next Summer to help them support the transition to a low carbon economy without misleading consumers. At this early stage, the CMA has not reached a view as to whether or not consumer protection law has been broken. However, if it finds evidence that businesses are misleading consumers, then it will take appropriate action.”

Government announces its Ten Point Plan for a Green Industrial Revolution

At 22:30 on Tuesday this week, the Government announced its Ten Point Plan for a Green Industrial Revolution. It is described as an ambitious (when are they not?) plan providing a blueprint covering clean energy, transport, nature and innovative technologies that will allow ‘the UK to forge ahead with eradicating its contribution to climate change by 2050’.

It is hoped by the Government that the plan will create up to 250,000 highly-skilled green jobs in the UK (by the mobilisation of £12 billion in government investment), and three times as much private sector investment, by 2030.

The Ten Points are:

  1. Offshore wind: quadrupling our current output to 40GW by 2030, supporting 60,000 jobs;
  2. Hydrogen: 5GW of low carbon hydrogen production by 2030;
  3. Nuclear: development of small and advanced reactors, supporting 10,000 jobs;
  4. Electric vehicles: transforming our national infrastructure to better support electric vehicles [curiously the announcement does not mention the ban on petrol and diesel cars having been brought forwards];
  5. Public transport: making cycling and walking more attractive ways to travel and investing in zero-emission public transport;
  6. Jet Zero and greener maritime: support for research projects for zero-emission plans and ships;
  7. Homes and public buildings: making our homes, schools and hospitals greener, warmer and more efficient, creating 50,000 jobs and installing 600,000 heat pumps every year by 2028;
  8. Carbon capture: capturing 10MT of carbon dioxide by 2030;
  9. Nature: protecting and restoring our natural environment, planting 30,000 hectares of trees every year; and
  10. Innovation and finance: making the City of London the global centre of green finance.

As with many of the Government’s recent announcements in respect of the environment (the 25 Year Plan, the Green Homes Grant Scheme, etc.) the Ten Point Plan is another step in the right direction in terms of addressing climate change and meeting our reduction targets, but that is, sadly, all it is: another step in the right direction. It is not, yet, a blueprint for achieving Net Zero.

The announcement may be found here. If you were curious as to why the Plan was announced at 22:30 on a November Tuesday, it is because it preceded a press conference on the Wednesday. The press conference was nowhere near Four Seasons Total Landscaping (in case you missed it, see here).

To keep up-to-date follow us on Twitter @6pumpcourt or click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk