Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan and Laura Phillips consider the future relationship of DEFRA and the Environment Agency, recent clarification of the legal status of petroleum exploration and development, and a new Brexit position paper which aims to ensure continuity in the availability of goods for the EU and the UK.

DEFRA and the Environment Agency define their relationship

In a Framework Document published last month, DEFRA and the Environment Agency (one of DEFRA’s “delivery bodies”) set out the basis upon which they “will work together in an open, honest, trust-based partnership”, whilst acknowledging that the EA as a Non-Departmental Public Body will operate “at arm’s length from its principal sponsor”. The 30-page document “should be formally reviewed every three years with light touch annual reviews as necessary”. It sets out the status and purpose of the EA, providing in the process a useful summary of the EA’s statutory functions, duties and powers under the Environment Act 1995 and a statement of the respective responsibilities of its chairman, chief executive and board. The contents of the document also constitute the discharge by the Secretary of State of several statutory requirements imposed by that Act in relation to the functioning of the EA. The concept of Risk Management is specifically addressed, the EA stating that it will adopt the principles contained within the Treasury guidance Management of Risk: Principles and Concepts. The document also addresses (it is to be hoped not ominously) “Arrangements in the event that the Environment Agency is wound up”.

The Framework Document can be found here

Legal status of petroleum exploration and development licences clarified

In R (oao Dean) v Secretary of State for Business, Energy and Industrial Strategy and Dart Energy (West England) plc [2017] EWHC 1998 (Admin) the Administrative Court considered the effect of a consensual variation to the duration of the initial term of a Petroleum Exploration and Development Licence (‘PEDL’) granted by the Secretary of State under section 3 of the Petroleum Act 1998 to search for, bore and get petroleum (all petroleum deposits being vested in the Crown by virtue of the 1998 Act). Such licences are topical and controversial in the context of ‘fracking’ activities, which were indeed the subject-matter of the instant licence.

The main issue in the case was whether a PEDL was purely statutory in nature or took effect instead as a contractual licence. Statutory instruments set out model clauses for licences and an EU Directive further regulated their content. It had nevertheless been the practice of the Secretary of State both to grant such licences as deeds and to vary them by deed when expedient to reflect the multitudinous changes of circumstances encountered by operators in the field. Holgate J. held that this was in fact the only appropriate way in which to grant a PEDL, which he held to be a quite distinct thing from a planning permission or an environmental permit, requiring as it did both the grant of real property rights and the acceptance by the licensee of the terms offered. The 1998 Act and subsidiary legislation simply empowered the Secretary of State, as a public authority, to enter into such agreements in private law. It did not create a public law statutory code. The lawful content of PEDLs was circumscribed by domestic and EU legislative requirements, but that did not affect their essentially contractual nature.

Holroyd J. further indicated that even if he had found that PEDLs took effect only in public law, he would nevertheless have found also that there was a statutory implied power of variation by agreement with the licensee. He also found that the actual variations made were unobjectionable in nature.

New Brexit position paper published on ‘Continuity in the availability of goods for the EU and the UK’

This position paper is part of a series published prior to the third round of negotiations currently taking place. Its aims are to: ensure that UK and European goods which are placed on the market prior to Brexit can continue to be sold in both countries after Brexit; seek continuity and avoid unnecessary duplication of compliance activities in place before Brexit (e.g. through existing product approvals, certificates and registrations remaining valid); ensure cooperation in monitoring and enforcing against non-compliant products; and to place no restrictions on the provision of services supplied with goods between the EU and UK. It can be summarised as proposing business as usual and appears to suggest that little will change in the current regulatory regimes: “… The UK’s objective is to provide legal certainty and avoid disruption for businesses and consumers with respect to the continued availability of goods in the EU and the UK. In doing this, it makes sense to recognise our common regulatory systems and the UK’s ambition for cooperation in the future” (para 9). The details are all rather vague, as are the mechanisms for resolving legal disputes and dealing with conflicting regulatory standards, although recent comments from the Justice Minister Dominic Raab appear to suggest that ECJ case law could continue to influence UK decisions after Brexit (see news article).

The position paper, and others, are available here

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