Environmental Law News Update

January 11, 2021

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Nicholas Ostrowski consider some environmental predictions for 2021, whether an Environmental Impact Assessment should consider ‘indirect’ emissions and a further case dealing with the complexities of assessing bathing water quality.

Environmental Law Predictions for 2021

We begin this year as we did the last: with our predictions for environmental law in the forthcoming year.

The Office for Environmental Protection

At the time of writing, the progress of the Environment Bill has been delayed. Amendments have been proposed and accepted that arguably will have the effect of providing the Secretary of State with the power to interfere with the OEP’s enforcement policy and weakening the potential of the OEP to act independently and promote environmental protection.

In our view the recent suggestions that the independence of the OEP has been fatally compromised is overstated, but that doesn’t mean that it will be plain sailing this year. We predict:

  • In order to ensure that the OEP publicly retains its independence, the new watchdog will have to announce on its formalisation that guidance issued by the Government on its enforcement strategy is simply not binding but only a factor that should be taken into account, albeit that sound reasons will be required to depart from the guidance.
  • Proportionality will be the key issue for the OEP. Under the prospective legislation, a fair balance has to be struck between the interests of the environment and other competing interests. This will not be promotion of the environment at all costs.
  • In its infancy, the OEP will struggle to be more than a policeman to the Environment Agency. It will be difficult to demonstrate that public bodies have failed to take proper account of environmental law when exercising their functions. In contrast, given that the Environment Agency’s entire remit concerns environmental protection, it is the Environment Agency that is naturally much more likely to feel the pointy end of the OEP’s stick, at least in the early days.

Export of waste abroad

Following Brexit and the lack of recycling capacity in the UK, the export of waste abroad will be high on the agenda for both businesses and the Environment Agency this year. Recent changes to the Basel Convention have restricted the export of plastic waste which is likely to result in greater scrutiny being applied to exports. Furthermore, the Environment Agency’s recent success against Biffa Waste Services Ltd and the headlines generated by the likes of Malaysia rejecting thousands of tonnes of waste back to their countries of origin will keep this issue firmly in the limelight.

One key issue will be whether or not those regulating the export of waste abroad have sufficient resources to properly tackle the issue or whether enforcement action will be limited.

However, we predict that the movement of waste abroad will be one of the dominant environmental issues of 2021. There has already been a warning of a glut of plastic stockpiling in the UK. Look out for waste exports making further headlines in 2021.

Lawyers forced to rethink their carbon footprint

It remains a fact that many businesses pollute very little themselves but do much to contribute to the polluting activities of others. Enabling high-emissions activities is one area that has seen very little regulation to date. But in light of the UK’s commitment to net zero and the increasing interest in indirect emissions, it is in our view inevitable this is an area that will come under increasing scrutiny.

We therefore predict that professional service firms, such as lawyers, will start more seriously taking into account their indirect emissions as a means of demonstrating their green credentials. Although we don’t predict that regulatory control in this area will be introduced this year, social and green pressures will ensure that indirect emissions will be one of the key green issues of 2021.

Should an Environmental Impact Assessment consider ‘indirect’ emissions?

In the recent case of R (Sarah Finch) v Surrey County Council [2020] EWHC 3559 the Planning Court (Holgate J) considered the argument that an Environmental Impact Assessment prepared for the development of four new oil wells in Surrey was defective because the assessment only considered the greenhouse gas emissions from the operation of the development itself and not the so-called ‘indirect’ emissions of greenhouse gases from when the crude oil produced from the site was used elsewhere by, for instance, drivers of motor vehicles.

Surrey County Council granted planning permission for a company to expand its existing oil extraction site based on an Environmental Statement which described the likely significant effects of the development. The Environmental Statement interpreted the significant effects of the development as the releases of greenhouse gases from the operation of the wells and that the greenhouse gas impacts of the development itself would be negligible. The impact of burning the potential 3.3m tonnes of crude oil which may be extracted from the site over its proposed 20 year production period was not considered.

The Claimant’s argument that the EIA process should have considered the indirect emissions did not succeed. The court found against the Claimant (who was supported by Friends of the Earth) and concluded that (at [101]) ‘the true legal test is whether an effect on the environment is an effect of the development for which planning permission is sought’ and that (at [126]) the assessment of greenhouse gas emissions from the future combustion of refined oil products said to emanate from the development site ‘was, as a matter of law, incapable of falling within the scope of the EIA’.

This is an interesting time for the EIA process. In the summer the government announced that it would consult on proposed reforms to the EIA affecting how the system would work after the UK had left the EU but no such consultation has appeared. Changes to the EIA and Habitats Assessment system have been said by the government to be a significant benefit for the UK after Brexit and Boris Johnson was reported to have said that “Newt-counting delays are a massive drag on the prosperity of this country.” (https://www.bbc.co.uk/news/uk-politics-53276461). However, how the UK will use its new post-EU freedoms to affect the EIA and Habitats Assessment processes will play out in the coming months.

When bad marks don’t count (continued)

Last June, we published a blog item “When bad marks don’t count …” relating some of the complexities surrounding the assessment of bathing water quality and the use (and/or discounting) of samples taken during or following heavy rainfall events, which cause the overflowing of combined sewers into rivers and the sea and the introduction of sewage into bathing waters. We noted the tension between the need for a fair and realistic overall assessment and classification system on the one hand, and on the other the view (expressed to ENDS by an anonymous Environment Agency officer) that the “Abnormal Weather Exception” “knocks the very thing that causes the problem out of the equation”.

Light has now been shone on this very subject by the judgment of Thornton J. in Anglian Water Services Ltd v Environment Agency [2020] EWHC 3544 (Admin), in which Anglian Water successfully sought judicial review of decisions made by the Environment Agency in its application of the relevant legislation to the determination of the quality of bathing water at three beaches in Lincolnshire (mistakenly but not entirely inappositely described as “three breaches” in the judgment at paragraph 9).

The practical application and operation of the Bathing Water Regulations 2013 are, as in so many other environmental regulatory regimes (try WEEE, for example), so complex and arcane as to be fully known to and understood by only those who are daily involved in them. Such areas of human endeavour are inherently prone to “drift”, in that practical and sometimes ad hoc rules and guidance, often devised to fill gaps or to resolve difficulties or ambiguities in the underlying legislation, become the touchstones of decision-making rather than recourse to the actual words and requirements of the legislation (try COVID-19 for example). In such circumstances, the occasional judicial “legality check” can be beneficial.

This is a blog item not a case report, so we shan’t delve too deeply into the detail of the 30-page judgment in the case. The EA had applied its understanding of the concepts of “short term pollution” and “abnormal situation” in the Regulations in such a way as to result in the three beaches becoming downgraded from “excellent” to “good”. This was challenged by Anglian Water on three grounds (1) that the EA had wrongly claimed and exercised a discretion in the manner in which it discounted water samples taken during “short term pollution” events; (2) that the EA had wrongly used its own Pollution Risk Forecasting system; (3) that the EA had unlawfully failed to classify an event as an “abnormal situation”. The challenge failed on the first two grounds but succeeded on the third. Essentially, the EA had wrongly declined to treat exceptional rainfall as an “abnormal situation” justifying rejection of samples on the inadequate ground that it could not identify the source of the resulting pollution and had further wrongly concluded that as a matter of law it could not later revisit that decision when determining classification of the bathing water. The exact consequences were left to be worked out between the parties if possible.

The decision is of considerable significance to those whose work involves this regime; it is also of more general note as an interesting application, in the context of ground (2), of the principle in R (Mott) v Environment Agency [2018] 1 WLR 1022 that the court should be slow to review the decision of a specialist regulator in cases involving scientific, technical and predictive assessments.

Finally, one suspects that some of the activists in the field of bathing water quality might be amused/irritated by the euphemistic reference in EA documents and the judgment to heavy rainfall “mobilising faecal indicator organisms from the catchment to the sea”. This proposition could perhaps be shortened in common parlance to two words, the second of which is “happens”.

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