Environmental Law News Update

In this latest Environmental Law News Update, William Upton KC, Noémi Byrd, Natasha Hausdorff and James Harrison consider how the Government’s Net Zero Review, its revised Net Zero Strategy and response to the CCC Progress Report will interact, increases in civil penalties faced by polluting water companies, and the tough line being taken by the Environment Agency against illegal fishing.

Net Zero – all gain and no pain?

How the Government’s recent announcement of a Net Zero Review, its formal delay to its response to the CCC Progress Report, and the High Court’s requirement that it revise its Net Zero Strategy, will interact is unclear. Allowing for the Oxford comma (itself under threat), we’ve written a longer item about this critical issue as part of our Climate Change Blog.

We are in turbulent times politically, and this has directly affected the Net Zero agenda. Whilst the Government’s commitment to Net Zero emissions by 2050 is still in place (as set out in s.1 of the Climate Change Act 2008), the route to get there is now in question. On 26 September 2022 the Government announced a review of its approach to delivering Net Zero, “to ensure that it is pro-business and pro-growth”. There is a need, it is said, to avoid placing “undue pressure” on businesses and consumers on the way to reaching Net Zero. This review is in addition to, and will predate, the need for the Government to submit its revised Net Zero Strategy to the High Court, following its loss in R (Friends of the Earth) v SSBEIS [2022] EWHC 1841 (Admin).

The Government has also formally deferred, by statutory instrument (2022/982), its obligation to respond to the Climate Change Committee’s Progress Report until 31st March 2022 – the same deadline as for the revised Net Zero Strategy following the judicial review. It is also the case that the Levelling-up and Regeneration Bill in its current form does not reflect the CCC’s recommendations – not that there is any apparent further progress on a LURB at all.

This Environmental Law News item is a summary of a longer item that may be found on Chambers’ Climate Change Blog here.

Potential for civil penalties to rise from £250,000 to up to £250 million against water companies for causing pollution

Last week, the Environment Secretary, Ranil Jayawardena, announced proposals to raise the civil penalty for water companies who pollute the environment by 1,000-fold, from £250,000 to up to £250 million. Noting that privatisation has put in £170 billion of investment into water infrastructure, and also that the private sector will put in another £56 billion, Jayawardena warned that this proposal would be pursued if the sector did not deliver.

The proposal is that the Environment Agency (EA) will be given the power to directly issue fines of up to £250 million to water companies for serious pollution incidents, as part of the government’s ongoing action to push for water companies to invest more in infrastructure in order to minimise pollution incidents and secure future water supply. The issue has been high on the agenda after reports that in 2021 there were 62 serious pollution incidents by water companies, an increase from 44 in 2020.

Since 2015 the EA’s criminal prosecutions against water companies have secured fines of over £138 million, with a record £90 million fine handed out to Southern Water for corporate environmental crime.

Criminal prosecutions can, however, be lengthy and costly. This proposal would extend the power to use civil sanctions, or Variable Monetary Penalties (VMPs), which can be imposed directly by the EA rather than the courts, offering a quicker method of enforcement. The current limit for VMPs handed out by the EA for individual breaches of the rules is £250,000. Increasing the cap for fines up to £250 million would speed up the process of enforcement by the EA handing down directly VMPs for more serious offences, including when there is evidence of negligence or mismanagement or when there is an environmental impact. They would, however, be subject to a right of appeal to the First-tier Tribunal, which may open the EA up to adverse costs awards, something which at present they are largely insulated from by the criminal court process.

The Environment Secretary stated: “Bigger financial penalties will act as a greater deterrent and push water companies to do more, and faster, when it comes to investing in infrastructure and improving the quality of our water. This 1,000-fold increase sends a clear signal that we want clean rivers and coastlines, and that the duty falls to the water companies to deliver – the polluter must pay.”

Last month the Environment Secretary requested that water companies set out their plans for improving environmental performance and infrastructure. The responses are under review as part of the ongoing work by the government, the Environment Agency and Ofwat to address water companies’ performance and accountability.

The proposals build on the Storm Overflows Discharge Reduction Plan, published at the end of August, which brought in the strictest targets on sewage pollution and requires water companies to deliver their largest ever infrastructure investment, £56 billion capital investment over 25 years.

Midlands men in deep water when caught red-handed fishing illegally by Environment Agency

On Monday 26 September 2022 at Northampton Magistrates’ Court, Steve Gibbons and Jason Palmer were both convicted in their absence for fishing-related offences. One might have thought that equipment licences were only needed when shooting (in and out of a barrel) but both men were found guilty of fishing “by means of an unlicensed fishing instrument, namely rod and line”.

The men were sentenced to a total penalty of £389, which includes a fine of £220, costs of £135 and a victim surcharge of £34. Taking a solely financial view, the men would have better off paying for a licence as that sum would have bought them a licence for the next 12 years and three days.

One might have thought that the Environment Agency has bigger fish to fry but its official spokesperson pointed out that:

Illegal fishing undermines the Environment Agency’s efforts to protect fish stocks and make fishing sustainable.  Money raised from fishing licence sales is used to protect and improve fish stocks and fisheries for the benefit of anglers. For those caught cheating the system, we will always prosecute.

These cases show how seriously the courts take these offences. We hope the penalties received by the illegal anglers will act as a deterrent to anyone who is thinking of breaking the laws and byelaws we have in place across England.

This prosecution is something of a sea change from the Agency’s other work with the value of the financial penalty falling at the bottom end of the scale. However, we can all appreciate the real value in protecting our natural fisheries. This prosecution comes hot on the heels of DEFRA’s publication of the 10 Point Plan for financing biodiversity as the government pledges to champion protection of at least 30% of land and ocean globally.

The next time you’re thinking of seizing the day and going angling, be sure to mull it over and fish out your licence.