Environmental Law News Update

November 5, 2021

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Nicholas Ostrowski consider economic incentives for water companies to improve environmental performance, a short guide to COP26 and Six Pump Court’s inaugural Environmental Law Conference to be held next month.

The Land Of Make Believe

Defra has suggested in its consultation on the draft Strategic Priority Statement for Ofwat that water companies should receive economic incentives to improve environmental performance to meet EA requirements. The Environmental Audit Committee is ”disturbed to note” this, particularly in relation to sewage discharges (which have been in the limelight for some months now, to the surprise and delight of those of us who practise in the usually stagnant creek of these murky waters).

Having Brexited, we are now free if we wish to adopt the laws of the empire of Lilliput, as described by Jonathan Swift in Chapter 6 of Gulliver’s Travels:

Although we usually call reward and punishment the two hinges upon which all government turns, yet I could never observe this maxim to be put in practice by any nation except that of Lilliput. Whoever can there bring sufficient proof, that he has strictly observed the laws of his country for seventy-three moons, has a claim to certain privileges, according to his quality or condition of life, with a proportionable sum of money out of a fund appropriated for that use: he likewise acquires the title of snilpall, or legal, which is added to his name, but does not descend to his posterity. And these people thought it a prodigious defect of policy among us, when I told them that our laws were enforced only by penalties, without any mention of reward. It is upon this account that the image of Justice, in their courts of judicature, is formed with six eyes, two before, as many behind, and on each side one, to signify circumspection; with a bag of gold open in her right hand, and a sword sheathed in her left, to show she is more disposed to reward than to punish.”

One significant difference between the Liliputian system and the one proposed is that the former incentivised all good citizens, whereas Defra’s model does not extend beyond water and sewerage undertakers, who are perhaps unlikely to be perceived by the public as uniquely deserving of such a reward. The more so if the basis for singling them out has been the extent of their non-compliance to date. Nevertheless, if the Lilliputian model were to be exactly emulated and followed by the companies, the public gain would be 73 moons of cleaner rivers. The length of a Lilliputian moon is unknown without further research (which time does not permit), and the value which the companies would attach to the title of “snilpall” is debatable. The success of the proposal thus seems likely to be dependent upon a very large financial carrot (“open bag of gold”) being dangled from the stick which is so rarely wielded in anger, like the sheathed sword of Justice.

Another difference between Lilliput and the UK is that one of them is, like Utopia, a fictitious country.

COP26 – A Noddy’s guide

The COP 26 carnival in Glasgow is very much in the news but, except for those international environmental lawyers amongst our readership (hello!), practitioners may not have kept up with what, exactly, the COP26 is trying to achieve. This is intended as a short introduction to the event and what it’s all about.

This is the 26th Conference of the Parties (COP) about global climate issues. The ‘climate COPs’ have met annually since 1995. COP26 aims to bring countries together to agree a comprehensive plan that takes forward coordinated climate action and resolves key issues related to the UN Framework Convention on Climate Change, the Kyoto Protocol and the Paris Agreement. The UK is president of COP 26 but the current COP president (it rotates) is Chile.

There are four COP26 goals. First, the aim is to ‘secure global net zero by mid-century and keep 1.5 degrees within reach’. This goal follows the Paris Agreement at COP21 where every country agreed to work together to limit global warming to well below 2 degrees and to aim for 1.5 degrees. The Paris Agreement set out ‘Nationally Determined Contributions’ (‘NDCs’) which set out the amounts by which each country would reduce their emissions but left unagreed the timing by which these NDCs would be reduced.

The second goal is to ‘adapt to protect communities and natural habitats’. This reflects the fact that a focus on reducing carbon emissions (and hence temperature rises) will be of limited utility if ecosystems and biodiversity are destroyed and also reflects the fact that, for some parts of the world (especially low lying countries) climate change already requires them to build defences and increase the resilience of their infrastructure.

Thirdly, COP26 aims to end with an agreement to ‘mobilise finance’. The stated goal of the parties is to mobilise at least $100bn of climate finance a year by 2020 to pay for the transition away from our carbon-intensive civilisation.

Fourthly, COP 26 aims to ‘work together to deliver’. While at first glance this may seem the most nebulous of the COP26 goals, this actually is the opposite as it is reference to the desire to finalise the Paris Rulebook setting out Nationally Determined Contributions from carbon, to set the rules for the transparent reporting of action, to set common timetables for emission reduction commitments and agree mechanisms between the parties for addressing loss and damage from climate change. This is where the thousands of negotiators, UN staff and diplomats in Glasgow will earn their keep.

The first goal is what has generated the most amount of comment, has the most ‘cut through’ with members of the public and will form the majority of discussions with the COP26 delegates involved in actual negotiations to finalise the ‘Paris Rulebook‘ which sets out the rules needed to implement the 2015 Paris agreement and to conclude outstanding issues from COP25 in Madrid. It’s fair to say that things have not got off to a good start here with India stating that it can only achieve carbon neutrality by 2070 and with the Chinese president not attending Glasgow at all. However, perhaps of most importance is the question of whether the parties can agree a carbon market allowing states to conduct emissions trading. This is one of the big outstanding issues in the Paris Rulebook (it is Article 6 of the Paris Agreement). While a negotiating text on this issue has been agreed the parties do not, currently seem to be that close to actually agreeing such a market.

Six Pump Court hosts its inaugural Environmental Law Conference

On 3 December, Six Pump Court will be hosting its first environmental law conference. Entitled ‘Key changes and future trends in environmental regulation and litigation’, this event will be a timely and practice-focussed assessment of key recent developments in environmental law, on topics ranging from the Environment Bill, key issues in water law, and carbon capture and storage to corporate climate obligations and climate change litigation. Professor Richard Macrory, Emeritus Professor of Environmental Law at University College, London, will give the keynote address.

The event brings together leading experts and practitioners in the field of environmental law to give an unparalled insight into the most recent key developments and future trends. Confirmed speakers include Joanne Holbrook, Legal Director at Addleshaw Goddard LLP, Dr Sophia Northridge, Head of CCUS Tranport and Storage Strategy at DBEIS, Dalia Majumder-Russel, Partner at CMS Cameron McKenna, Vanessa Havard Williams, Partner and Global Head of Environment and Climate Change at Linklaters LLP, Professor Ole Windhal Pedersen from Aarhus University and Sarah Oliver Scemla, Director and Assistant General Counsel at Bank of America. Panels will be hosted by environmental law specialists at Six Pump Court.

The event will begin at 9am on 3 December 2021. In-person and virtual tickets are available here. This is going to be a truly fantastic event, presenting an unmissable analysis of the current critical issues in environmental law. We look forward to seeing you there.

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