Environmental Law News Update

January 25, 2021

In this latest Environmental Law News Update, Charles Morgan, Nicholas Ostrowski and Mark Davies consider disputes over riparian rights and related land drainage issues, more public interest litigation from environmental groups and charities and the news that the US will re-join the Paris Agreement.

Riparian rights revisited
by “Chippy Northerner”

The rich list of characters created by John Mortimer QC in his “Rumpole of the Bailey” books includes Mr. Justice Oliver Oliphant, a High Court Judge of northern origins whose frequent invocation in court of “northern common sense” as the most reliable of touchstones was despised by Rumpole and thus, one supposes, by his creator too. One might even feel, on occasions, that this was reflective of a wider incidence of similar feeling at the less diverse Bar of yesteryear, and that this explains, amongst other things, why perfectly respectable decisions by judges in cases heard outside London (even including those of judges who usually did sit in London) were resolutely ignored lest infected with the same quality (perceived, presumably, as synonymous with “lack of intellectual rigour”).

A major step in the reform of this attitude has been the creation of the Business and Property Courts throughout England and Wales. Over the past three years these have generated a steady stream from the regions of valuable reported contributions to case law, including in the environmental field, the latest being the decision of Judge Mark Cawson QC sitting in the B&PC at Manchester in Bernel Ltd v Canal and River Trust [2021] EWHC 16 (Ch). It is a succinct and clear exposition of the law applicable to disputes over riparian rights and related land drainage issues of a kind which seem to be proliferating as developers struggle to create the sustainable drainage systems required of them by planning consents.

As we like to stress, these blog items are not case reports. So suffice it to say that if you have a case whose conduct would be benefited by insights into such issues as the methods of determination of whether a watercourse is natural or artificial, the degree of significance of a prior Environment Agency determination on that issue, the extent to which enjoyment of riparian rights can extend to artificially modified discharges, and the extent to which the benefit of a prescriptive easement might survive even radical change in the use of the dominant tenement, this is a go-to case.

Whilst on the facts neither riparian nor prescriptive rights were held to exist, the judge held obiter that neither of them would have been defeated by the mere fact of artificial modifications to the drainage into the relevant channel, because the new system was specifically designed to ensure that maximum rates of flow did not exceed preceding levels. This was so notwithstanding that overall quantities of flow over any given period of time would have been augmented i.e. the average flow would have been significantly higher than before. So far as the judgment reveals, there was no evidence that the overall increases in total volume would themselves have caused problems to the receiving watercourse (such as by increase in scour or cost of maintenance). Were that so, the position might have been different.

Tweets for tweets

There have, of course, been environmental organisations and charities bringing litigation to protect the environment for many years but a conspicuous development over the last few years seems to be a greater appetite by environmental groups and charities to bring public interest litigation. In the last six weeks (including the Christmas vacation) the courts have handed down no fewer than four judgments in such cases brought by ClientEarth ([2021] EWCA Civ 43), Wildjustice ([2021] EWHC (Admin)) and Friends of the Earth ([2020] UKSC 52, [2021] EWCA Civ 13). If one looks back over the whole of 2020 one can add Plan B Earth, Greenpeace and numerous local environmental groups and concerned individuals to the list of those who have brought claims before the courts.

The government would no doubt suggest that this is evidence that the Aarhus costs protection regime set out in CPR 45.41 – 45.44 is working and that the system should not be disturbed. That is debatable. A better answer seems to be that many of these environmental organisations have cottoned on to how to harness the power of social media to launch quick, effective and powerful publicity drives to raise awareness and cash to fund litigation.

Wildjustice is a good example of just how powerful combination of celebrity, social media and the environment can be. Set up by Ruth Tingay, Mark Avery and Chris Packham only in 2019 it deploys its social media savvy to great effect in seeking funding from the public to fund targeted litigation protecting the environment and claims, for instance, to have raised £48,500 in three days to bring a claim protecting badgers (see here). The model plainly works as they have achieved significant legal victories such as persuading DEFRA in October 2020 to concede a judicial review and reconsider the way in which pheasants and partridges are managed (see here).

Wildjustice’s latest foray before the courts in R (Wildjustice) v Natural Resources Wales [2021] EWHC 35 (Admin) was less successful in that its challenge to NRW’s licensing system for the shooting of wild birds was rejected by the High Court. Nevertheless Wildjustice claim, with some justification, that the case was a success for them as the court and NRW clarified a number of issues relating to the circumstances in which wild birds can be lawfully killed.

US to re-join the Paris Agreement

The Paris Agreement entered into force on 4 November 2016. Four days later, Donald J Trump was elected President of the United States. On 1 June 2017, he announced that the US would be withdrawing from the Agreement, however, pursuant to Article 28, no signatory may withdraw within three years of the date on which the Agreement came into force and therefore the notification was sent to the United Nations on 4 November 2019. The withdrawal process under the terms of the Agreement takes a further 12 months, and thus it was not until 4 November 2020 that the US officially withdrew from the Agreement.

Fortunately for proponents of the Agreement, on 3 November 2020 the US once again went to the polls and voted as to who should be the country’s President. Despite protestations to the contrary from certain quarters, Joe Biden won that election having already evinced his intention to re-join the Agreement if he was victorious. Thus, just hours after his inauguration on 20 January 2021, Biden signed an executive order indicating that the US would be re-joining after a 30-day notice period.

After the whirlwind of the last four years, the US will eventually have been out of the Agreement for slightly over 100 days, which seems like rather a waste of everyone’s time.

Waste of time or not, what happens next, and what form America’s new National Determined Contribution (“NDC”) takes, will be crucial. The NDC the US sent to the United Nations Framework Convention on Climate Change under the terms of the Agreement when it first joined was for, “…economy-wide emissions reductions of 80% or more by 2050.” But of course, since that NDC was submitted, the Intergovernmental Panel on Climate Change published (on 8 October 2018) its ‘Special Report on Global Warming of 1.5 degrees C’.

The Report, as readers will no doubt be aware, stated that for the target of 1.5 degrees C warming to be met (avoiding catastrophic climate change, it is important to recognise) global net human-caused emissions of CO2 would need to fall by 45% by 2030 against a 2010 baseline, reaching net zero around 2050.

So, the takeaway from all of this? The US has lost four years in the fight against climate change, and the World’s efforts have been dented as a result. If President Biden is serious about the US once again taking to the centre stage in responding to climate change, its new NDC is going to need to be far more robust than its original: net zero by 2050 at the very least. If America’s NDC is that ambitious, or indeed more ambitious, then, for the first time in a while, there would appear to be a little more light at the end of the tunnel.

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