Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Charles Morgan consider the prospect of a Green Brexit, the liability of ‘successors’ for contamination of land under the Part IIA regime, and the prospective impact of China’s waste ban on the UK.

Delivering a Green Brexit

On 21 July 2017 the newly-appointed Secretary of State for the Environment Mr. Michael Gove MP delivered a speech entitled The Unfrozen Moment – Delivering a Green Brexit. He declared himself an environmentalist acutely aware of the potentially fatal consequences of over-stressing natural systems and expressed regret at President Trump’s rejection of the Paris Agreement. Mr. Gove recognised that the EU had been “in a number of ways, a force for good environmentally” but criticised its weakness in resisting the demands of producers.

Mr. Gove considered that “outside the EU we can do much better” and proposed reform of “the two areas where the EU has most clearly failed to achieve its stated environmental goals” viz. The Common Agricultural Policy and the Common Fisheries Policy.

Most pertinently for the legal practitioner, Mr. Gove said: “ … inside the EU, the European Commission and the ECJ have provided enforcement mechanisms and understandably, some are asking what could or should replace them. My view is that we have an opportunity, outside the EU, to design potentially more effective, more rigorous and more responsive institutions, new means of holding individuals and organisations to account for environmental outcomes.” He promised that this would be addressed in DEFRA’s long-awaited 25-year Environment Plan, which he acknowledged “has been longer in gestation than a baby elephant.” It currently awaits advice from the Natural Capital Committee, which is promised for September. Once the Plan is published, the terms of the European Union (Withdrawal) Bill, if passed into law, will provide Mr. Gove and his successors with ample ‘Henry VIII’ powers to implement its recommendations, providing as it does for Ministerial correction of deficiencies in retained EU law, including at clause 7 the specific power to make provision concerning arrangements involving the EU, an EU entity, a member State or a public authority which “are no longer appropriate”.

The full text of the speech can be found here

Liability of successors for contamination of land under the Part IIA régime

In Powys County Council v Price and Hardwick [2017] EWCA Civ 1133 the Court of Appeal determined that Powys County Council was not liable as an ‘appropriate person’ for the remediation of contamination created entirely by the activities of its predecessor local authorities in operating a landfill site over a culverted watercourse. The Court of Appeal considered the situation to be indistinguishable from that in R (Transco plc) v Environment Agency [2007] 1 WLR 318, where the House of Lords had held that nothing in Part IIA of the Environmental Protection Act 1990 rendered Transco (a commercial company) responsible as an ‘appropriate person’ in respect of the activities of its predecessors (private gas companies, followed by the state-owned British Gas). Nor in the Powys case was any such liability transferred or imposed by the operation of the legislative provisions governing the transitions in local government which created the Council. At the time of those transitions, the relevant liability did not exist, even contingently, to be transferred.

In so deciding the Court of Appeal differed from both the first instance judge (Judge Jarman QC) and the Council itself in earlier times, which had (like many similarly-placed authorities) for years proceeded on the basis that it was an ‘appropriate person’ and responsible as such for meeting costs of monitoring and remediation. Whether, in the case of local authorities, a distinction can, and should, be drawn so as to impose liability upon successors is a matter of some general significance and importance, albeit that the outcome might necessarily turn upon the specific terms of the underlying enabling legislation in individual circumstances.

In the result, the decision of the Court of Appeal caused responsibility for remediation under Part IIA to fall upon the innocent current landowner as (in the terms of the statutory guidance) a ‘Class B’ appropriate person, in the absence of any directly responsible ‘Class A’ appropriate person (the Council having been the sole candidate).

China waste ban to impact on UK

China has filed a notification with the World Trade Organisation that it intends to ban 4 classes and 24 kinds of solid waste by the end of 2017 as part of a campaign against “foreign garbage”. The ban includes all plastics scrap, unsorted waste paper, certain metal recycling residues, textiles and all unsorted waste or scrap.

The UK currently exports over 80% of its recyclable plastic to China. China is a major importer of waste from across the globe and last year imported 7.3 million tonnes of waste plastics, valued at $3.7 billion, accounting for 56% of world imports. However, China is currently attempting to improve pollution in the country, following well-publicised reports on air and soil quality.

While the export of unsorted, contaminated paper will be banned, China will still accept mixed paper as long as it is resorted. It remains to be seen how this will manifest itself in practice.

The illegal export of waste abroad is a controversial topic, not least because criminal investigations tend to be lengthy and extremely expensive and yet the penalties for breaching the Transfrontier Shipment of Waste Regulations tend to be very low. Part of the regulatory problem is that contamination in waste destined for export is ultimately inevitable (due in part to the limitations of current waste sorting processes) and yet the Regulations make no allowance for this fact and there is very limited UK Guidance, if any, on acceptable levels of contamination or the methods by which such contamination can properly be assessed.

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