Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger considers a review by DEFRA of the OEP, the publication of a Strategic Framework for a net zero energy system and an Interpol report on organised crime and links to pollution crime.

DEFRA reviews the OEP

DEFRA has completed its first review of the newly established Office for Environmental Protection (‘OEP’). The purpose of the review was twofold – to ensure that the OEP is on track to be effective, efficient and aligned to the government’s priorities and to ensure that it is well governed and properly accountable for what it does.

In short, DEFRA has concluded that the OEP is “in good health”. There are 12 recommendations to improve administration and governance processes. These include:

• Agreeing performance metrics with DEFRA;
• Developing a digital, data and technology strategy;
• Ensuring that all board members have appropriate training on financial management and reporting requirements;
• Agreeing the Common Framework document with DEFRA by August 2022.

There is no need for a full, independent review of the OEP at this stage.

DEFRA is to review the OEP’s budget and permitted headcount ahead of the next financial year, as further evidence becomes available. DEFRA will also review these again in 2023 to 2024. This is intended to ensure that the OEP can deliver its statutory objectives under the Environment Act 2021.

The funding and independence of the OEP was the subject of much debate prior to the OEP’s inception. What is likely to prove interesting will be the breadth of evidence that DEFRA will take into account when conducting these financial reviews. For example, the views of the government on the adequacy of OEP funding may vary from those of green NGOs. Non-governmental input could paint the issue of funding in a very different light, depending on the actions and success of the OEP in these early years.

Details of the review can be found here

Government publishes a Strategic Framework for a net zero energy system

The electricity network is fundamental to net zero and reducing dependence on fossil fuels. However, it will need to be transformed to meet the expected demand and to be able to accommodate the goal of decarbonisation. With this in mind, on 1 August 2022, BEIS published its Strategic Framework for Electricity Networks.

Key points to take away are:

• It is intended that the network will be planned strategically, led by the Future System Operator, who will also provide targeted, expert advice to the Government and Ofgem;
• Regulation to take a ‘forward looking, flexibility first’ approach to new network investment;
• A reformed planning consent process in order to cut timescales for projects.

The Future System Operator (‘FSO’) is intended to be an expert, impartial body, with operational independence from the government, with a duty to facilitate net zero while also maintaining a resilient, economical, coordinated and efficient system. It will be publicly owned. This isn’t a new proposal – BEIS and Ofgem consulted on this back in July 2021 and a joint statement by the government, Ofgem, National Grid and the Electricity System Operator was published in April 2022, confirming all parties commitment to the FSO.

Ofgem has also published a Call for Input on energy system functions needed at a sub-national level to facilitate the transition to net zero at least cost, and the criteria that need to be in place to deliver these functions effectively.

It is estimated that up to 20,000 new jobs could be created in ‘load-related reinforcement projects’ in the electricity networks sector by 2035. Digital skills and data analytics will be core skills. The knock on effects are also significant – the example given is that by upgrading the electricity network to handle the electrification of heat, this will create up to 50,000 jobs by 2030 in heat pump installation alone. The headline figure for jobs across net zero industries is 480,000 by 2030.

It remains to be seen whether the proposed reforms will be radical enough to cope with the sheer scale required to meet prospective demand. Changes are to be made to the way network investment decisions are made, in particular promoting flexibility to meet demand first, but the onus is on others to demonstrate how that flexibility will be created through the production of business plans. Price control is to be the subject of consultation. Further consultation will also take place on changes to the regulatory framework, including funding, approvals and exemptions. At the same time, transmission operators are expected to commit to significantly expedited delivery timetables and put forward new investment plans that demonstrate expedition. There will be a re-consultation on the revised energy National Policy Statements to include further references to strategic network planning.

BEIS’ publication can be found here

New Interpol report considers organised crime and links to pollution crime

Interpol have considered 27 pollution crime case studies shared by law enforcement in Interpol member countries. The proceeds of the pollution offences ranged from USD 175,000 to USD 58 million, with an average of USD 19.6 million for each case. The proceeds of the 27 cases were estimated to amount to half a billion US dollars.

In one case, organised crime groups illegally exported municipal waste from the UK and dumped it in Poland, fraudulently claiming to dispose of the waste in legitimate UK-based sites, as they were paid to do. The illegal dumping resulted in an estimated 30-40 waste fires in Poland.

The term ‘pollution crime’ was used as an umbrella term to describe a range of criminal activities involving the trafficking and/or the illegal management of potential contaminants, and resulting in environmental pollution. It included waste crime; marine pollution crime; fuel, oil and gas smuggling and illegal refineries; illegal use and trade in chemicals and plastic; and carbon trading crime.

The report makes the following recommendations:

• Elevate pollution crime to a priority level in national law enforcement agendas, shifting from a reactive to a proactive approach when investigating such crimes domestically, and proactively engaging in cooperation with foreign authorities and Interpol to tackle transnational cases;
• Integrate tools and techniques of organised crime and financial investigations into environmental crime investigations on a regular basis, either through a more multidisciplinary training of investigators, or by establishing permanent multi-agency task forces;
• Undertake systematic and accurate data collection and intelligence analysis (particularly network analysis) on the companies and criminal networks charged with pollution crimes, to support intelligence-led operations.

Pollution crime is generally seen as high profit and low risk. The study found that document fraud was an essential component in many cases in order to mask illegal disposal and to smuggle waste internationally. The UK Environment Agency is recorded as having detected 16 organised criminal groups in the pollution crime area and in one case conducted 8 separate investigations in order to dismantle a major organised criminal group involved in pollution offences.

The report makes for interesting reading on the key patterns associated with organised crime in this arena and the capacity of those involved to penetrate the public sector and local politics. One alarming figure was the cost given to the clear up of unauthorised landfills following illegal waste dumping, with costs ranging from USD 6 million to USD 37 million, averaging USD 15.6 million, thus providing a measurable indicator of the impact of pollution crimes on society.

The report can be found here

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