Environmental Law News Update

December 2, 2020

In this latest Environmental Law News Update, Gordon Wignall, Christopher Badger and Mark Davies consider the fast-tracking of a climate case by the EctHR, challenges to Environment Agency decisions post-2020 and an update on the Friends of the Earth and Shell litigation.

ECtHR fast-tracks youth climate case

On 30 November the European Court of Human Rights announced that it was fast-tracking a climate dispute filed by six youth-applicants from Portugal. The Court has also required the 33 defendant countries (made up of the EU27 plus Norway, Russia, Switzerland, the UK, Turkey and Ukraine) to respond to the complaint by the end of February 2021.

The complaint alleges:

  1. That none of the defendant countries have adopted adequate legislative or administrative measures to regulate the export of fossil fuels to keep global warming to 1.5°C;
  2. That none of the defendant countries adopted adequate legislative or administrative measures to mandate the off-setting of emission released through the production of goods that these countries import; and
  3. That none of the defendant countries have adopted adequate legislative or administrative measures that restrict the extent to which the entities within their jurisdiction may contribute to the release of emissions overseas.

The applicants complain that these failures infringe the right to life (Article 2), the right to a healthy protected environment (Article 8) and that, because of their age, the applicants are disproportionately affected by the failures of the 33 states.

One issue that the Court will have to tackle is how to make a determination on the adequacy of national measures in the context of a global problem. The Paris Agreement did identify the individual ‘fair share’ of nation states and consequently, whilst it may be predicted that the world will miss the 1.5°C target, it is harder to apportion blame to any group of nation states. In the event that it is found that there has been a breach of the European Convention, finding the appropriate remedy for the individual defendants will not be an easy task.

Nevertheless, the applicants will be buoyed by the Urgenda case that required the Dutch government to reduce its emissions by 25% relative to 1990 levels by 2020 and the fact that the case has been prioritised by the European Court. Very few cases are fast-tracked.

Challenges to Environment Agency decisions post-2020

On the one hand, Safety-Kleen UK Ltd v The Environment Agency [2020] EWHC 3147 is an end of waste judgment of no real interest save that it is an articulate reminder of the key principles. It is also a present to the insomniac.

On the other hand, however, it is of very considerable interest by reason of the ramifications of a concession necessarily (and very clearly) made by the Environment Agency.

It is worth setting out the material paragraph from the judge’s decision in full:

6.  Although these are judicial review proceedings, they are unusual in this respect. The parties agreed that the question for the Court was not whether the decision of the Environment Agency was rational, or whether some material consideration had been ignored or an immaterial consideration had been taken into account. Nor was the question whether the EA had directed itself correctly on the meaning of the term “waste”, and had reached a view as to its application which was reasonably open to it. It was instead for the Court to decide whether, in all the circumstances of the case, the used kerosene was “waste” when collected by Safety-Kleen from its customers, or “waste” only after it had been re-used in the cleaning of the drums at the depot. If the Environment Agency decision was right, it was lawful; and if wrong, it was unlawful. This meant that the Court, in reaching its own decision, could also consider material which was not before the Environment Agency when it made its decision.

The question now is whether all the acres of print which have gone into debating the inadequacies of a deferential judicial review procedure can now be put on one side. Critics have long maintained that the Courts of England and Wales should adopt an intensive merits-based review procedure, like that of the General Court.

This paragraph will be a useful starter in requiring the Courts to examine the merits of EA decisions in those many areas where there should be an appeal procedure but there is not.   An example is a decision to remove the status of an exempt waste facility. It also follows that claimants should feel less reluctant in applying for interim relief.

For proponents of a specialist environmental court, their dreams must also come a step closer. The dregs of the judicial review process were entirely inappropriate to the task faced by the Court. There was no application to cross-examine with witness (understandably), and the judge spent his time shuffling the evidence around to try and come up with some reconciliation of competing statements.

It seems that in this case the claimants had their eye on £2m of back-payments for waste management expenses. One might imagine that they were left somewhat sour by the want of a specialist tribunal to get to grips with the scientific issues.

Friends of the Earth and Shell litigation: Update

In May last year we covered (link here) the delivery of a summons to Shell’s headquarters in the Netherlands by Friends of the Earth Netherlands (“FOEN”). This week, the matter is in court in the Hague for four days of public hearings.

In a claim similar to one being pursued against ExxonMobil in the US, the FOEN case against Shell will in part argue that Shell knew, and has known for decades, of the damage its business was inflicting on the environment and was acting unlawfully by continuing to expand its fossil fuel operations.

The claim proceeds on the basis that Shell is breaking article 6:162 of the Dutch civil code, as well as breaching Articles 2 and 8 of the European Convention on Human Rights (the same articles as alleged to have been breached in the youth-applicant case discussed above) by causing a danger when alternative measures were available.

The case calls for Shell to reduce its CO2 emissions to at least 45% by 2030 against a 2010 baseline, and to net zero by 2050. The company’s own relative targets are currently a 30% reduction by 2035 and 65% by 2050, although it has stated an ambition to be a net zero emissions energy business by 2050 or sooner.

Interestingly, FOEN will need to prove that an alternative business model is available, and so are expected to point towards the success of DONG’s transition from a national oil and gas company generating one third of Denmark’s CO2 to Ørsted, a renewable energy powerhouse responsible for around 30% of the global offshore wind market.

Although the case is fundamentally a different one, given the success the same group achieved in the Urgenda case (upheld in the Dutch Supreme Court last year), this will certainly be one to watch carefully.

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