Environmental Law News Update

September 8, 2021

In this latest Environmental Law News Update, Charles Morgan, James Harrison and Rukan Hazar consider a new regulatory statement on water and sewage effluent discharges, a legal challenge relating to the emission of noxious landfill site fumes and an announcement on the UK’s new ‘Heat Strategy’.

The New Normal?

“Normally, you need a permit under the Environmental Permitting (England and Wales) Regulations 2016 to discharge treated effluent from a waste water treatment works (WwTW) to surface water or groundwater”. So begins the Environment Agency’s latest “Regulatory Position Statement” B2 on the subject of “Water and sewerage company effluent discharges: supply chain failure.” The word “invariably” might be nearer the mark. But now, only “up to a point”, to be determined by an officer of the Agency.

We discoursed very recently on the subject of Regulatory Position Statements (see Environmental Law News Update 167) in the context of spreading of sewage sludge, where it seems that a significant “get out of jail free” card has been delivered to sewerage undertakers to ease the problems arising from lack of storage space. This time the relaxation is, according to Water UK as reported by ENDS, prompted by supply chain difficulties (specifically delivery problems due to a shortage of drivers) leading to a dearth of ferric sulphate which is used in tertiary treatment. The problem is thus not as bad as it might be (ENDS had to correct an earlier version of the story which suggested that the RPS would allow more raw sewage to be discharged into rivers) but the timing of the RPS could scarcely be worse, coming hot on the heels of the record fine imposed on Southern Water and the debate over the provisions in the Environment Bill concerning sewage discharges and on the eve of COP26. It is likely to be seen as a further unacceptable laxity in regulation of the undertakers, who are seemingly let off every hook on which they might conceivably become snagged.

The RPS is hedged with caveats. It is not available at all in the case of “high risk” discharges and available stocks must be prioritised for the most risky of the remaining discharges. Two weeks’ advance notice must be given to the Environment Agency and normal use must resume as soon as possible. The relaxation will end altogether on 31 December 2021 unless extended.

An undertaker is also required to show that the shortage has occurred despite reasonable contingency and response planning. Characteristically of RPSs, there is of course no orderly mechanism for the determination of any argument about whether or not such planning has taken place. It would certainly not be any defence to the strict liability offences whose effect it purports to relax. The “length of the Chancellor’s foot” by which the operation of the 17th century courts of equity was said to vary has re-emerged in the context of 21st century environmental law in the form of the impression of the Environment Agency officer determining the applicability of an RPS. Indeed in the case of the infamous H4 Odour Management Guidance it might not unfairly be suggested to depend upon the flare of the officer’s nostrils.

Local residents kick up a stink about noxious landfill fumes

The Administrative Court recently heard proceedings brought against the Environment Agency with respect of gases that are emanating from Walleys Quarry landfill near Newcastle-under-Lyme. Thousands of residents have complained of sleeplessness and breathing difficulties and claim it has gotten worse since the beginning of this year. However, the effects have been felt most acutely by Mathew Richards, a five-year-old claimant represented by his family, who is said to have a reduced life expectancy as a result of emissions from the site.

The landfill at Walleys Quarry produces hydrogen sulphide, which is a poisonous, corrosive gas with an ‘eggy’ odour, and, at times, the levels of the gas at the site have exceeded the World Health Organisation guidelines. The High Court was told that the local community (of which many members are elderly and 1,773 are children under the age of five) has suffered “with widespread physical and mental health conditions due to the emissions”. For Mathew the production of noxious gases has aggravated his chronic lung disease and underlying health conditions meaning that, in his mother’s words, he regularly has nights where he is “coughing, vomiting, [and] choking” and if the legal proceedings are unsuccessful the family may be forced out of their home.

The judicial review proceedings, of which the Richards family are a part, are brought against the Environment Agency with respect of their enforcement of Walleys Quarry Ltd and are intended to bring an immediate stop to landfill activities at the site. Human rights arguments are being advanced – under Articles 2 and 8 of the ECHR – as well as arguments that the Environment Agency failed to properly inform itself about the safe levels of hydrogen sulphide emissions. In response, the Environment Agency reject the claim that there is a ‘public health emergency’ at Walleys Quarry and argue there is not a real and immediate risk to Mathew’s life.

Mr Justice Fordham is expected to give his ruling at a later date.

Announcement of the UK’s new ‘Heat Strategy’

As readers will know, on 27 June 2019, the UK government set a legally binding target to achieve net zero greenhouse gas emissions from across the UK economy by 2050. A way in which the UK government is aiming to do this is by improving the energy efficiency of new and existing buildings to reduce heat demand.

The Department for Business, Energy & Industrial Strategy announced that it would carry out a consultation on regulatory options to phase out the installation of fossil fuel heating systems in off gas grid buildings. Following the publication of the Future Framework for Heat in Buildings in 2018, it was further announced that the Department for Business, Energy & Industrial Strategy would develop a new long-term policy framework for the future of heat – a ‘Heat and Buildings Strategy’. The strategy will aim to enable homes and businesses transition to low carbon alternatives and bring the UK a step closer to the net zero target.

The highly anticipated ‘Heat and Buildings Strategy’ was expected to be published in March. However, it has been announced that the publication will be further pushed back to September 2021 when the broader net zero strategy will also be published. This will coincide with the 26th UN Climate Change Conference of the Parties (COP26) in Glasgow on 31 October – 12 November 2021.

There have been recent suggestions by Business Secretary Kwasi Kwarteng that the ‘Heat and Buildings Strategy’ may include a plan for phasing out gas boilers. He also added the possibility of introducing incentives aimed at homeowners to make buildings more energy efficient and introducing a carbon tax so as to make polluters pay for their emissions. Although the UK Emissions Trading Scheme replaced the EU Emissions Trading Scheme on 1 January 2021, these comments from the Business Secretary indicate that a conclusive decision has not been reached in government as to whether a carbon tax will be introduced.

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