Environmental Law News Update

November 24, 2021

In this latest Environmental Law News Update, Christopher Badger, Nicholas Ostrowski and James Harrison consider progress made at COP26, a major investigation into sewage treatment works by Ofwat and the EA, the new Environment Act and our Environmental Law Conference next week.


COP 26 has now finished, with mixed views on whether or not progress has been made. We take a look at some of the passages from the final text, with our own analysis. Passages in italics are taken directly from the final text.

“29. Recalls Article 3 and Article 4, paragraphs 3, 4, 5 and 11, of the Paris Agreement and requests Parties to revisit and strengthen the 2030 targets in their nationally determined contributions as necessary to align with the Paris Agreement temperature goal by the end of 2022, taking into account different national circumstances.”

It was requested that countries will meet next year to pledge further cuts to emissions of carbon dioxide. This is both a positive and a negative. It reflects the fact that on one view, little progress was made on establishing plans to make the necessary reductions in emissions agreed under Paris. But at least that might be revisited next year. That reflects a departure from the previous requirement to only submit new or updated plans every five years.

“36. Calls upon Parties to accelerate the development, deployment and dissemination of technologies, and the adoption of policies, to transition towards low-emission energy systems, including by rapidly scaling up the deployment of clean power generation and energy efficiency measures, including accelerating efforts towards the phase-down of unabated coal power and inefficient fossil fuel subsidies, recognizing the need for support towards a just transition.”

This is the plan to “phase-down” the use of coal. The explicit mention of “coal” and “fossil fuel subsidies” is a break from previous agreements. But what does “unabated coal power” mean? Presumably “support for a just transition” refers to financial support for polluting industries. And the world’s countries couldn’t agree on a “phase-out”. The word “phase-down” reflected a change of wording when both China and India both objected to the use of the words “phase-out”. “Inefficient fossil fuel subsidies” reflects an agreement to phase down subsidies that artificially lower the price of coal, oil or natural gas but it can be seen that no date has been set.

44. Notes with deep regret that the goal of developed country Parties to mobilize jointly USD 100 billion per year by 2020 in the context of meaningful mitigation actions and transparency on implementation has not yet been met, and welcomes the increased pledges made by many developed country Parties and the Climate Finance Delivery Plan: Meeting the US$100 Billion Goal and the collective actions contained therein;

Developed countries missed the $100 billion target of climate finance that ought to have gone to developing countries by 2020 under the Paris Agreement. In its place, there is a pledge to significantly increase money to help poor countries cope with the effects of climate change and make the switch to clean energy. There is a prospect of a trillion dollar a year fund from 2025.

73. Decides to establish the Glasgow Dialogue between Parties, relevant organizations and stakeholders to discuss the arrangements for the funding of activities to avert, minimize and address loss and damage associated with the adverse impacts of climate change, to take place in the first sessional period of each year of the Subsidiary Body for Implementation, concluding at its sixtieth session (June 2024);

It was agreed that there will be further dialogue about “loss and damage”, a collective term for the impacts that climate change has already had. The final text recognises that climate change has already caused loss and damage but the bottom line is that the world’s richer countries don’t want to be held liable for that “loss and damage”.

“78. Recalls the Katowice climate package, and welcomes with appreciation the completion of the Paris Agreement work programme20, including the adoption of decisions on the following:

78 (b) Methodological issues relating to the enhanced transparency framework for action and support referred to in Article 13 of the Paris Agreement (decision -/CMA.3);

78 (f) Rules, modalities and procedures for the mechanism established by Article 6, paragraph 4 of the Paris Agreement (decision -/CMA.”

78 (b) reflects an agreement on a single transparency standard, important for how countries should report on their emissions under the Paris agreement. 78 (f) reflects the creation of internationally controlled standards to avoid the same emissions reductions being claimed by multiple countries or companies and to tackle false reduction credits in a carbon market. Nonetheless, concerns remain over the integrity of the market and the extent to which it will actually contribute to carbon reduction.

COP 26 closed claiming that 1.5 remained within reach. Whilst, objectively, that appears very much to be in doubt, there is no alternative but to keep trying to make progress.

Major investigation into sewage treatment works begun by Ofwat and the EA

The biggest water story in 2021, that of allegations of unauthorised sewage discharges by water companies, continues to run and run.

The latest instalment in the saga came on 18 November 2021 when the Environment Agency and Ofwat launched what they both described as a ‘major’ investigation into sewage treatment works. This investigation is said to be looking into 2000 sewage treatment works where the Environment Agency and Ofwat are concerned that water companies are discharging effluent into watercourses in excess of environmental permits. The specific allegations which are being explored are whether at these 2000 sewage treatment works ‘the companies are complying properly with the conditions in their permits on the volumes of sewage they must treat before they are allowed to divert any untreated sewage to storm overflows.’

While this has been welcomed by interested groups, many are suggesting that this investigation is long overdue as they have claimed for years that despite apparently stringent terms in permits, water companies are, in practice, diverting polluted water from sewage treatment works and discharging them into watercourses from stormwater outfalls or similar after very minimal (or in some cases no) recent rainfall. The statements from Fish Legal and Windrush Against Sewage Pollution (WASP) are particularly interesting in asking why it has taken so long to begin such an investigation.

In a recognition of the political and social impact which water pollution is having, the language used by the chair of the Environment Agency, Emma Howard Boyd is noticeably assertive: ‘This shows why we need robust and well-funded regulation to provide the public, investors and customers with assurances about what is being delivered on the ground. I would like to see the levels of penalties for corporate environmental crime in England go up significantly. More attention should also be paid to the directors of companies that are guilty of repeated, deliberate or reckless breaches of environmental law. Such directors should be struck off and in the most grievous cases given custodial sentences.’

Environment Act 2021: a short summary

Last week the Environment Act 2021 became another piece of ‘world-leading’ legislation. Environment Secretary, George Eustice, stated that the new Act “will deliver the most ambitious environmental programme of any country on earth”. The Act is intended to clean up the air, restore habitats, increase biodiversity, reduce waste, halt species decline, tackle deforestation, and encourage better use of resources.

The Act is notable for the way in which it provides something of a ‘one-stop shop’ for environmental issues. Top-level policy is impacted by the Act through the requirement to set long-term targets and the need for ministers to consider five key (reassuringly familiar) principles when making policy – the integration principle, the prevention principle, the rectification at source principle, the polluter pays principle and the precautionary principle. At a regional level there are requirements outlined in several areas such as the requirement for local councils to establish regular recycling (DEFRA wants to recycle at least 65% of municipal waste by 2035). There is something for businesses and for individuals, too: for example, the encouragement to use sustainable packaging and to use deposit return schemes for drink containers, respectively. Finally, international issues feature such as provisions intended to stop the export of polluting plastic waste to developing countries.

Joined-up thinking is also clear in the way that ‘classic’ environmental issues such as targets for particulate pollution rub alongside biodiversity targets. Under s 1 of the Act, long-term targets to improve air quality, biodiversity, water, and waste reduction and resource efficiency must be set, including a target on ambient PM2.5 concentrations, the most harmful pollutant to human health. The government is obliged to propose the targets before the end of 2022. Interim targets are intended to increase accountability and ensure that steady progress is made, which in the view of this author is essential to avoid undue reliance upon the hope of future exponential improvement that is contingent on future technologies. Alongside these targets, the UK has become the first country with a legal target to halt wildlife decline by 2030. There is impetus to take steps towards “net zero for nature” ahead of Convention on Biological Diversity negotiations next year. However, despite this positive step the issue of biodiversity loss is likely to remain something of a political battleground; on 2 September 2020 Caroline Lucas tabled a private members bill entitled ‘Climate and Ecology Bill,’ which would establish a Citizens’ Assembly to help set biodiversity and climate strategy.

Related to several recent posts in this blog, the Act will crack down on water companies that discharge sewage into rivers, waterways, and coastlines. A duty enshrined in law to ensure water companies secure a progressive reduction in the adverse impacts of discharges from storm overflows. However, this did not go as far as amendments tabled by peers in the House of Lords, and the reference to ‘progressively reducing impacts’ is argued by critics to undermine the protections derived from EU law which place an obligation on water companies to avoid spills from storm water overflows save for in exceptional circumstances. On this score it may be a case of waiting until the muddle settles to see if the water is clear…

Finally, as has been outlined in the blog previously, government and public bodies are to be held to account by the Office for Environmental Protection (OEP). An interim OEP has been operative since July and the OEP proper will formally commence its statutory functions early in 2022. There remained concerns in the House of Lords as to the independence of the OEP. Groups such as Green Alliance suggested that the Act permits environment secretaries to “interfere in [the] independent process examining whether secretaries of state or public authorities have failed to uphold laws relating to water pollution, air quality or the marine environment”. As above, only time will tell whether these concerns are well founded.

For those looking for a little more information….Alongside Professor Richard Macrory QC, Six Pump Court’s Chris Badger is currently producing a companion guide for the new Act, which will assist in the interpretation of specific sections. The book is planned to be released soon.

Environmental Law Conference – next week

Join Six Pump Court’s hybrid Environmental Law Conference next week on Friday 3rd December 2021 either in-person or online to hear from our specialist counsel and leading experts on current issues in environmental law and climate change. **Discounts are available for multiple bookings from the same organisation and for public sector/NGO delegates**.

The full programme and confirmed speakers including from DBEIS, Linklaters, Aarhus University, Bank of America, Addleshaw Goddard, and CMS Cameron McKenna, are available here. The event will incorporate speaker panels and Q&A on the Environment Bill, Water Law, Carbon Capture and Storage and Climate Change (drivers of corporate behaviour, and litigation). Professor Richard Macrory will give the keynote address.

For those attending in-person, the conference will take place in the new Ashworth Centre at Lincoln’s Inn on 3rd December from 9am to 5pm. It will be simultaneously livestreamed, so that online delegates can follow the main panel presentations and Q&A online.

Discounts are now available for multiple bookings from the same organisation – booking information and prices here

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