Environmental Law News Update

December 18, 2020

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Mark Davies consider the Supreme Court decision on the third runway at Heathrow, the outcome of our 2020 predictions and some pertinent musical suggestions for an environmental sing-a-long this festive season.

R oao Friends of the Earth Ltd & others v Heathrow Airport Ltd [2020] UKSC 52

The decision of the Supreme Court to overrule the Court of Appeal on the third runway at Heathrow has principally turned on section 5(8) of the Planning Act 2008 which requires that the reasons for a policy, set out in a National Policy Statement such as the ‘Airports National Policy Statement’ (‘ANPS’), should include an explanation of how the policy takes account of Government policy relating to the mitigation of, and adaptation to, climate change.

The Supreme Court disagreed with the Court of Appeal on the meaning of the words “Government policy”. These are not ordinary words but require a narrow interpretation. A policy could only be a policy if the doctrine of legitimate expectation could be applied to it: clear, unambiguous and devoid of relevant qualification. The fact that the UK had ratified the Paris Agreement was not of itself a statement of Government policy. Comments by Ministers were not government policy. How to adapt to be able to contribute to the global goals of the Paris Agreement was still in a process of development – an “inchoate and developing policy and not an established policy to which section 5(8) refers”.

The Court of Appeal had appeared to hold that national support for an international agreement could be considered domestic policy. But interestingly, even before the case reached the Supreme Court, that view had already been distinguished by the Court of Appeal in R (on the application of Packham) v Secretary of State for Transport [2020] EWCA Civ 1004 which held that the Government’s commitment to the Paris Agreement did not necessarily have the status of ‘Government policy’ but simply that the unincorporated international obligation enshrined in the Paris Agreement was an obviously material consideration that had not been considered.

This latter point has been eroded in the Supreme Court’s decision. It was held that the Secretary of State had taken the Paris Agreement into account. The question for the Supreme Court was whether he should have given it more weight. The Court of Appeal had been  wrong to hold that the Secretary of State had not asked himself the question whether he should take into account Paris – he “certainly did so” and had concluded that it would be wrong to go beyond the extent to which Paris was reflected in the Climate Change Act 2008. It wasn’t necessary to consider what might be the status of an unincorporated international obligation.

The Heathrow judgment therefore finds itself somewhat constrained. Paris simply provides an overarching direction of travel, in contrast to whatever are the stated policies of the day.

Human rights law (exemplified in the decision of Urgenda) will be relevant at the  Development Consent Order stage, where the effect on the lives and family life of those affected by climate change will have to be taken into account. There is an interesting contrast between an emboldened European Court of Human Rights, of course completely unaffected by Brexit, and a UK Government that has very little by way of concrete policies to meet its net zero commitments, save for a need for some major infrastructure projects.

Our January predictions

Broadly speaking, for once our predictions were reasonably accurate (link here). We stated that the Government’s commitment to a ‘level playing field’ would not amount to equivalence with EU standards and indeed, this appears to have been a major sticking point in the negotiations. We were wrong to predict that the Court of Appeal would reject the appeal by Plan B and Friends of the Earth over Heathrow’s third runway but ultimately proved right by the Supreme Court. Producer responsibility has not yet proved itself to be a major policy driver but watch this space! We look forward to making a fresh set of predictions in the New Year.

And finally…

Something In The Air

(Thunderclap Newman, 1969)

For the last three years we’ve provided our readers with some pertinent songs to sing around the Christmas piano. In 2017 it was Sewers in Song; in 2018 Water Pollution in Song; in 2019 Noise Nuisance in Song. This year we have chosen Air Quality.

“All I Need Is The Air That I Breathe” sang the Hollies in 1974. The pedant (especially if a lawyer, or Mr. Logic from Viz comic) would point out that this is not strictly correct: air is a necessary but not of itself sufficient requirement to sustain life. A second pedant would retort that the song does indeed go on to add “And To Love You”; the first would reply that this doesn’t quite cover the ground either. The true allegorical strength of the song turns on the proposition that, in contrast to almost all other needs, our need for air is immediate and constant. It’s a safe bet that if you’re reading this now, you’re consuming air as you do so. It is perhaps of note that the songwriters were Albert Hammond and Mike Hazlewood, who also wrote “Down By The River” which featured in our piece on water pollution. So they were “woke” to environmental issues and there may be a sotto voce message in there.*

Fresh air is the theme of “Country Air” by another band which has featured previously, The Beach Boys – we mentioned their “Don’t Go Near The Water” in 2018. Come to think of it, it’s odd, given their surfing roots, that they never touched more explicitly upon the subject of sewage in the sea but maybe they just never got barrelled in Cornwall, or at Whitburn or Seaham on the North East Coast (see Commission v United Kingdom Case C-301/10) – but we digress.

There are few songs, and none of great note that we can think of, which make poor air quality their central theme. One which does is “The Air We Breathe” by Nick Walker, a somewhat flippant take on the subject with a chorus which begins “The air we breathe can sometimes be so yucky” but nevertheless does point the finger directly at exhaust fumes and industrial pollution and mentions the air quality index (so it’s an index finger) (a Christmas cracker of a wordplay there). Sadly, it’s only clocked up 26 views on YouTube since May 2019 (including ours) so why not give it a Christmas boost. “Air” by Talking Heads has probably earned a bit more in royalties for David Byrne, but it was never destined to be an anthem for environmental activists either.

A really old and interesting poem/song with a sideswipe at air quality is “Jerusalem” by William Blake (c. 1808, music by Parry 1916) and its contrasting of “clouded hills” and “dark Satanic Mills” with “England’s green and pleasant land”. It seems that old William was indeed a bit of a pioneering environmental activist and an extremely far-sighted one at that. Have a look at his poem “London” (c.1794): “Every blackning Church appalls”. It’s a pity that no-one ever put that one to music.**

More famous numbers allude almost incidentally to both causes and symptoms. The “pea soupers” caused by the burning of soft coal must surely have inspired both Gershwin’s “A Foggy Day in London Town” (1928) and Lindisfarne’s proud claim to ownership of “The Fog On The Tyne” (1974). The production of coal smoke in cities (recognised to be the cause of ill-health since, it seems, the thirteenth century) and the resulting smogs have been more or less eliminated in the UK by the Clean Air Acts, to the extent that many of our readers will have no personal knowledge or recollection of them. Sadly, and tragically, they have been replaced by no less potent threats from oxides of nitrogen and particulates. “LA is a great big freeway, put a hundred down and buy a car” sang Dionne Warwick in “Do You Know the Way to San Jose” (1968), noting also that “all the stars that never were are parking cars and pumping gas”, which pretty much explains the yellow pall which still hangs to this day over that “uptight city in the smog” (Neil Young, “LA”). Check out also Celine Dion’s “Skies of LA”, which uses this as an allegorical symptom of wider malaise in society.

Finally, revisit in this context two more songs which we’ve mentioned before, “Pollution” by Tom Lehrer and “What Have They Done To The Rain?” by Malvina Reynolds (Marianne Faithfull’s version recommended). Like all of Ms Reynolds’ catalogue, it’s very singable as you gather around the open fire, burning Ecoal 50 smokeless fuel made from up to 50% crushed olive stones (the rest Welsh anthracite) and emitting up to 40% less CO2 than house coal (other brands are also available).

Merry Christmas!

 * Song nerds (especially if lawyers) will also be fascinated to learn (if they didn’t already know) that “The Air That I Breathe” was (at least) twice allegedly plagiarised, first by Radiohead (“Creep”) and secondly by Lana Del Rey (“Get Free”). It would seem that Hammond and Hazlewood have established exclusive rights to the chord progression G-B-C-Cm (try it on the Christmas piano, but preferably not for compositional purposes). But we digress.

** Now’s your chance; just don’t use a G-B-C-Cm chord sequence.

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