Environmental Law News Update
June 9, 2021
In this latest Environmental Law News Update, William Upton QC and James Harrison consider the precautionary principle, the new Dutch case about Shell’s climate change obligations, the latest list of Enforcement Undertakings, and look forward to the UKELA conference.
The Precautionary Principle as an answer to uncertainty
Trying to satisfy the tests under the Habitat Regulations to allow new housing to proceed near to a European protected site is a challenge at the best of times. The decision maker has to be satisfied, at the time of the consent, that the project will not adversely affect the integrity of the European site. When a site is declared to be in an unfavourable condition, there is then little, if any room for additional adverse impacts, as many local authorities across the country are discovering. The recent case of R (oao Wyatt v Fareham Borough Council [2021] EWHC 1434 (Admin), before Mr Justice Jay, has seen the advice in respect of the Solent Estuary come under close scrutiny, and has highlighted how far the precautionary principle can provide an answer to the conundrum. The case itself may have only been about 8 new houses, but the advice at issue affects 12 local planning authority areas.
The advice from Natural England is that there remains a considerable degree of scientific uncertainty surrounding the likely impact of the wastewater from new housing development on the Solent Estuary sites, which are in unfavourable condition. Applying the precautionary principle, this means that NE’s advice is that only proposals which can show that they will be, at worst, “nutrient neutral”, should be granted permission.
Many see this as a moratorium on new development. Indeed, the claimant in effect tried to argue that the uncertainty about the effects of new houses near the Solent ruled out any new development in the region. This was described by the judge as “an unattractive submission given the exigencies of the real world.” It also “misunderstands the precautionary principle. We are in the realm of the empirical sciences where uncertainty is inevitable”. As he said, the whole point of the principle is that the uncertainty is addressed by applying precautionary rates to the variables included in the assessment. In that manner, reasonable scientific certainty can indeed be given as to the absence of an adverse outcome and satisfy the legal requirements. In the case of the Solent, in order to calculate the likely nutrient impact from housing, NE advise using an algorithm that uses a number of variables, and then adding a further cushion of 20% as a precautionary buffer. Whilst the judge considered that one element (the use of a national average occupancy figure) was open to criticism, he considered that the overall algorithm was “sufficiently precautionary” and not – given the court’s role – irrational.
The story of nutrient neutrality continues, as Natural England are now in the process of producing national guidance, and have been waiting on the results of case. But the case is an important reminder of the proper role of the Precautionary Principle, and that a requirement in an assessment for absolute certainty would be impossible of scientific attainment as well as being disproportionate.
Fossil fuels, Shell and Friends of the Earth (Netherlands)
Headlines have been grabbed by the Dutch case of Milieudefensie et al v Royal Dutch Shell, (26 May 2021), where the Court of First Instance of The Hague has ruled that Royal Dutch Shell (“RDS”) has an independent obligation to reduce its CO2 emissions by 45% by 2030 compared to 2010 levels and to zero by 2050, in line with the Paris Agreement.
This case owes a debt to the Urgenda case for the principle that the State has a positive duty under human rights law to act against climate change. But the legal basis of the Milieudefensie judgment is novel in the way that it utilises Dutch private law to extend this principle to apply international human rights law to RDS in a way that could potentially in future be applied to “all companies, no matter size, sector, operational context, property relations or structure”.
The Dutch Civil Code stipulates inter alia that tortious behaviour can consist of “what according to unwritten law is contrary to what is required in societal interrelations”. The Court has used this to hold that RDS are under a duty of care to reduce all its global emissions, because these will increase global temperatures and hence harm Dutch citizens. It relied on a list of 14 relevant elements, including that global warming beyond 1.5°C will heavily impact upon human rights (per Urgenda) and that corporations must respect human rights and do their share to reduce climate change and its effects.
The Court acknowledged that RDS “cannot solve this global problem on its own” but that RDS was not absolved of its “individual partial responsibility to do its part regarding the emissions of the Shell group, which it can control and influence”. The Court stated that RDS has what it referred to as an “obligation of result” to reduce the emissions directly resulting from its activities (‘Scope 1 emissions’), and an “obligation of best efforts” to reduce the emissions resulting both from the production of the energy used by the Shell Group (‘Scope 2 emissions’), and from its consumers (‘Scope 3 emissions’). RDS was given flexibility in allocating emissions cuts between Scope 1, 2, and 3 emissions, so long as in aggregate, the total emissions were reduced by 45%.
Shell has already announced its intention to appeal the judgment and it will be fascinating to see how far the Dutch appeal court will go in upholding the decision and the distinction between the two types of obligations. Whilst at first glance this case seems to impose a very wide-reaching standard of care, it has also featured in the Norwegian courts. The legal status of environmental targets – whether they are absolute or merely require reasonable efforts – also remains a live issue for many governments.
Meanwhile, Shell has not been let off the hook – the Dutch court has made its decision provisionally enforceable so that RDS will be required to meet its reduction obligations even as the case is appealed.
Recent update to Enforcement Undertakings in England
The Environment Agency has published its list of the 29 undertakings it has accepted in the 6 months between October 2020 and March 2021. It can be viewed here.
As ever, the actual details given are brief, and relate more to the actions that will be taken than the details of the underlying offence. Whilst each entry could tell a very interesting story, all that we really know is that the Agency decided – in line with its enforcement policy – that it was not in the public interest to prosecute, that they consider that the offer has addressed the cause and effect of the offending, and that it will protect / restore and/or enhance the country’s natural capital.
It is striking that most of the list is taken up by breaches of the producer responsibility for packaging waste regulations. There are 20 undertakings listed. Indeed we cannot recall when the last prosecution for this type of offence was last reported. The sums involved range from about £1,700 to £54,000.
Seven entries relate to environment permitting, and the sums involved range from some £2,000 (for some silage pollution) up to £380,000 (for a failure to comply with a permit condition, resulting in chemical pollution to nearby streams). They also cover offences such as effluent discharges, sewage pollution, and even operating an illegal waste site for a year. There are then two single entries for Water Resources Act 1991 (a water abstraction offence) and for the Salmon and Freshwater Fisheries Act 1975.
The use of this form of civil sanction has become well embedded. It is therefore regrettable that, as the ENDS Report has noted, hundreds of previous undertakings have been removed from view as the newest list replaces those that went before on www.gov.uk. ENDS have done a public service by collating the previous entries, and in publishing a complete list on their web pages.
UKELA CONFERENCE week
We look forward to the UKELA Annual conference next week, starting on 14 June, and we are pleased to be able to support it as one of the sponsors. The main plenaries are on Thursday and Friday. Members of chambers are also involved on:
Monday June 14, at the Water Working Party session (12.30-2pm), Charles Morgan and Nick Ostrowski will be leading the session on “Combined Sewer Overflows – what are they and what is all the fuss about?” with Rachel Salvidge, journalist at ENDS; Andrea Poole, water/waste water consultant at Atkins; and Philip Dunne, MP for Ludlow and author of the Sewer (Inland Waterways) Bill 2019-2021.
Tuesday, June 15, Climate Change and Energy Working Party (8.30-10am) where Stephen Hockman QC will be leading a session on the “Energy Sector after Brexit”, with Christopher Badger; and Silke Goldberg, Herbert Smith Freehills.
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