Environmental Law News Update

November 9, 2022

In this latest Environmental Law News Update, Gordon Wignall, Doug Scott and Amy Taylor consider moves by UK regulators on greenwashing claims, definitions of Gypsies and Travellers in planning policy and missed deadlines for providing legally binding environmental targets in the UK.

UK regulators move on greenwashing claims

In the first ruling of its kind, the UK advertising regulator has banned a series of adverts for HSBC which constituted misleading advertising in respect of environmental claims (r.3.1 – marketing communications must not materially mislead and r.11.1 – The basis of environmental claims must be clear)

The Advertising Standards Authority ruled that the adverts were likely to mislead by omitting material information over HSBC’s actual impact on the climate owing to its substantial investments in fossil fuels and other polluting industries. The ads were found to be in breach of the Committee of Advertising Practice’s Codes.

In the ruling, the HSBC has been warned not to show the adverts again, and, crucially, to ensure that its ads do not similarly mislead in the future. The ruling sets a precedent for the financial sector. See here

The ASA has warned in a research study dated 20 October 2022 that terms like ‘net zero’ and ‘carbon neutral’, and concepts such as carbon offsetting, are leading to misunderstanding and disappointment among consumers. See here

There is no doubt that the ASA can expect further approaches from campaign groups in the wake of the ruling. Robbie Gillet from Adfree Cities, the campaign group that led the complaint against HSBC’s ads, is reported to have said: “This is a significant moment in the fight to prevent banks from greenwashing their image. HSBC can no longer ply us with ads pretending they are green while continuing to bankroll climate breakdown in the background. Campaigners appear to be scrutinising many other green claims, from clothes to food to petrol to ESG products.

Other regulators are also investigating ‘greenwashing’ issues. In July 2022 the CMA announced that it would be “scrutinising eco-friendly and sustainability claims made by ASOS, Boohoo and George at Asda about their fashion products, including clothing, footwear, and accessories. The move comes as part of its ongoing investigation into potential greenwashing”.

The rise in complaints about ‘greenwashing’ has led to a spate of new regulation from various regulators, including the FCA in the UK. and there are legal investigations across the globe into international companies.

On 25 October 2022 the FCA reported that “In a bid to clamp down on greenwashing, the Financial Conduct Authority is proposing a package of new measures including investment product sustainability labels and restrictions on how terms like ‘ESG’, ‘green’ or ‘sustainable’ can be used”. (See Consultation Paper CP22/10.)

Court of Appeal find the definition of Gypsies and Travellers in planning policy to be unjustifiably discriminatory

The facts of Smith v Secretary of State for Levelling Up, Housing and Communities [2022] EWCA Civ 1391 are straightforward. Ms Smith, the appellant, and her family are Romany Gypsies. They have lived in their caravans on a site in Coalville since 2011, the site having had temporary planning permission for such use. They had no intention of continuing to travel, largely due to the impact that would have on Ms Smith’s two severely disabled sons. In 2016 the landowner sought to make the temporary permission permanent. The local authority refused permission, as did the planning inspector on appeal.

The proceedings that followed focused on the inspector finding that Ms Smith and her family did not fall within the definition of “Gypsies and Travellers” for the purposes of the 2015 edition of the Planning Policy for Traveller Sites (“PPTS 2015”). This is because the PPTS 2015, unlike its predecessor, removed from that definition those who had ceased travelling permanently. Ms Smith claimed that the new definition in the PPTS 2015 unlawfully discriminated against her. The High Court upheld the decision of the inspector finding that whilst the policy was discriminatory it was justified and there were sufficient safeguards in the planning system as a whole.

The Court of Appeal, in its judgment last week, disagreed and allowed all four grounds of the appeal. On the burden of proof the court said “[in] cases where indirect discrimination is admitted, what becomes critical is whether or not it can be justified” and it is not for the person discriminated to demonstrate this but the public authority (paragraph 52).

Dealing with the substance of the appeal – whether the definition was justified – the court initially focused on what was the objective of changing the definition and whether it was legitimate. The objective advanced by the Secretary of State was “to ensure that the planning system applies fairly to all” so “where Gypsies and Travellers have settled permanently, they should be treated no differently to the rest of the settled community for planning purposes” (paragraph 90).

The court proceeded to investigate whether the fairness objective – and therefore the legitimate aim – was made out from the evidence. The court concluded it was not because firstly, the Public Sector Equality Duty analysis concluded the requirements of section 149(1) of the Equality Act 2010 were not met; secondly, the evidence that supported the policy being fair was uncertain and in the minority; thirdly, it was inappropriate to partly justify the exclusion on the baseless perception that the planning system was advantageous to Gypsies and Travellers; and fourthly, the policy appeared to create a sub-class of an ethnicity – Gypsies and Travellers that don’t travel as opposed to nomadic Gypsies and Travellers – and then discriminate against the former. The court concluded that there was no proper justification for the exclusionary definition. It also concluded the “harsh consequences” of the policy were disproportionate. As a result, Ms Smith suffered unjustifiable discrimination, the inspector’s decision was quashed and a redetermination of the planning appeal ordered.

Three takeaway points. Firstly, the PPTS 2015 definition still stands – the court being at pains to stress they were not asked, nor had the jurisdiction, to declare the definition unlawful. However, the last paragraph of the judgment does indicate to planning decision-makers that they will need to carefully consider the weight they now attach to the definition. Secondly, the judgment is a reminder to ministers that self-confessed discriminatory policies will be rigorously scrutinised by the court. If the evidence of justification does not stand up, or even exist, then the court is ready to intervene. Finally, the courts are usually understandably very cautious about adjudicating on the rights and wrongs of a political policy, the phrase “that is a matter for [Parliament [or] the Executive], not this court”, is one we have grown accustomed to reading. Yet, in Smith the court has trodden quite close to the line and it will be interesting to see if the respondent appeals on the basis that the line was, in fact, crossed.

No time to lose, but no targets in sight

On 31 October 2022, the government missed a statutory deadline for announcing environmental targets to tackle water and air pollution and halt the decline in nature.  These targets are a requirement of the Environment Act 2021, section 4. A new deadline has not been provided.

 The failure to come up with new legally binding targets prompted environmental charities, such as the RSPB, the Wildlife Trusts and the National Trust, to file a complaint to the Office for Environmental Protection (OEP) and the Department for Environment, Food and Rural Affairs (Defra).

The head of the OEP, Dame Glenys Stacey, has met with the Secretary of State for Environment, Food and Rural Affairs, Thérèse Coffey, to address strengthening the targets and the delay in their publication. Environmental groups want the delay in publication to be used to create a stronger package of targets before the UN Biodiversity Conference (Cop15) in December.

Ruth Chambers of the Greener UK coalition said: “By missing this deadline the government is undermining its own flagship legislation. We urge the new secretary of state to make this an urgent priority and set ambitious targets for restoring our natural environment.”

This is not the first time an environmental law deadline has been missed. The OEP has warned that the possibility of taking formal enforcement action against the government was being kept under active review. The OEP has the power to launch an investigation and take legal action. There remains a huge question mark over when the targets will be published and we will have to wait and see if the OEP is required to take such steps against the government.

As noted by Dame Glenys Stacey, with the government “committed to halt species decline by 2030, and given other environmental pressures, there is no time to lose.”


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