Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Gordon Wignall and Nicholas Ostrowski consider the measures being undertaken by the government and water companies to mitigate the effects of drought in the UK, a report into global trends in climate change litigation, and a successful challenge to the government’s net zero strategy.

Nor any drop to drink

It’s that time of year again – the drought season.

Last Tuesday the Environment Agency convened an extra meeting of the National Drought Group, comprising representatives of the Environment Agency, Defra and other government departments, the water undertakers, the NFU and some environmental protection groups (the group normally only meets in spring and autumn). Its purpose was to discuss the need for action in response to yet another extremely dry spring and an even dryer (and hotter) month of July. August is forecast to be similar. Good news for those of us who are on holiday in this country, but the worst possible for all the organisations represented at the meeting. The chair of the group nevertheless announced that “there are currently no plans for restrictions on essential use.”

Since the meeting Southern Water has made a drought application to be permitted to make increased abstractions from the River Test, a request which is being challenged by Fish Legal, whose piscine quasi-clients will be the first to suffer. Drought produces a vicious circle of consumption – there is an increased demand for water at a time of decreased flows. The “hands-off” minimum flow in an abstraction licence does not allow abstraction of sufficient water for human use and a relaxation must be sought, despite the risk of injury to the aquatic environment.

As for non-essential use, yesterday South East Water announced a temporary ban on hosepipes and sprinklers in Kent and Sussex (a step already taken by Southern). Further measures over wider areas of the country appear likely.

Meanwhile, mains water supply lost to leakage is estimated to be at least 20%. Undertakers have committed to halving leakage from 2017-18 levels by 2050.

Global Trends in Climate Change Litigation: 2022 Snapshot

Climate Change Laws of the World (see here) is a database of 2740 climate law and policies and 2049 climate litigation case. It is maintained by the Grantham Research Institute at LSE, but made possible by a variety of collaborators, including the world-leading Sabin Centre for Climate Change at Columbia University.

Global Trends in Climate Change Litigation (2022) is an attempt by the Grantham Research Institute and the Centre for Climate Change Economics and Policy to categorise the trends of the above cases by reference to the period May 2021 to May 2022. It is the fourth such annual report.

As the authors themselves acknowledge, “the field of climate change litigation has matured, as has the ecosystem of actors engaged in strategic cases” (meaning the strategies behind climate litigation). Different categorisations of climate-aligned litigation strategies are possible, but the authors have identified the following (in summary):

• Government cases which challenge the implementation or ambition of climate targets and policies
• Litigation challenging the use of public money perceived as incompatible with climate action
• Corporate cases which seek to disincentivise companies from high-emitting strategies
• Government and / or corporate cases intended to interrupt projects which will also affect policy-making, typically in such areas as fossil fuel extraction, agriculture and land use
• Government and / or corporate cases challenging decisions to take climate risks into account (including on the part of financial service providers)
• Compensation cases (mainly to recover mitigation costs).

Every and any species of procedures and laws from across the global can be seen in the report, and the co-mingling of these claims in collections such as this, must surely influence the development of each individual country’s domestic laws about climate litigation. There is a great deal to assimilate. At the same time, as the authors also conclude, much more research is now needed to understand the effectiveness and impacts of climate litigation. There is just a small but growing literature to assist in understanding the effectiveness of litigation as a tool for advancing climate action.

It is quite impossible to summarise the report. As well as a taxonomy of more obvious types of litigation, new strands are discussed, whether SLAPP claims (strategic claims against public participation), ‘greenwashing’ complaints to competition authorities or advertising regulators, ‘just transition’ litigation, or ‘stranded asset’ litigation in Investor-State Dispute Settlement proceedings.

For anyone who may be interested in where these manifold types of proceedings are going, the report is well worth a careful read; at the same time just a ‘quick perusal’ will do, if only to check how your own daily interests are being taken forward or used in the context of climate litigation.

The report can be found here

Successful challenge by Friends of the Earth and others to government’s net zero strategy

A particular feature of environmental litigation in the last few years has been the increase in number, profile and effectiveness of strategic challenges bought by campaigning or charitable bodies. This isn’t a new phenomenon of course (see for instance R v HM Inspectorate of Pollution, ex parte Greenpeace Ltd [1994] 4 All ER 329), but organisations like ClientEarth, Wildjustice and Friends of the Earth have been noticeably active in bringing claims for judicial review in recent years and this will undoubtedly continue.

A recent and successful challenge was that brought by Friends of the Earth, ClientEarth and the Good Law Project in R (Friends of the Earth and others) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin)

The claim arose out of the obligation on the government under the Climate Change Act 2008 (‘the Act’) to reach net zero greenhouse gas emissions by 2050. The government’s strategy for so doing was made in October 2021 and the claim proceeded on the basis that the Act was being breached 1) because it would not meet the carbon budgets set out in the Act, 2) because the briefing provided to the Minister was insufficient, 3) because the strategy report did not adhere to the requirement in the Act to publish a sufficiently detailed report and 4) that it was in breach of the obligations on states under Article 2, Article 8 and Article 1 of Protocol 1 of the ECHR. The Claimants were successful on points 2 and 3 as the material presented to the Secretary of State was insufficient and the reporting obligations under the Act had not been adhered to.

The judgment treads a careful balance between, on the one hand, repeating the age-old instruction to defer to expert technical specialists making predictive judgments about how carbon useage will fall over the coming years (per Mott v Environment Agency [2016] 1 WLR 4338) with, on the other hand, recognising the onerous requirements which the Act, deliberately, imposed upon administrations to grapple with this most urgent environmental obligation.

The government will now have to update its strategy to provide more information, including setting out how policies will achieve the targets set out in the Act. This author’s prediction is that although this is a significant victory for the Claimants, the strategy will not be that different from the October 2021 version particularly given that the government succeeded on ground 1 and defended the plan’s approach towards carbon budgets.

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If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk