Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and William Upton consider calls from the Environmental Audit Committee for further views on chemicals regulation, the publication of Carbon Clear’s 2017 Sustainability Report, and the prohibitive costs generated by private nuisance cases.

Environmental Audit Committee calls for further views on chemicals regulation

“The chemicals industry is the second largest exporter to the EU after cars. Chemicals regulation is important because it enables the sector to provide value to the economy whilst also protecting public health and the environment.

Some businesses that trade within the EU are responding to the uncertainty around the future of UK chemicals regulation by looking to move their operations overseas, putting UK jobs at risk.

I am disappointed that the Government hasn’t set out a plan to regulate this industry. With only 18 months until the UK leaves the EU, the Government must provide certainty to businesses in this sector.”

These were the words of Mary Creagh, Chair of the Environmental Audit Committee as it called for further written submissions. Her sentiment doesn’t suddenly reflect a new concern. Back in April, a report by the EAC found that the Government then needed urgently to provide certainty to the UK chemicals industry over the future of chemicals regulation. The response of the Government is found in the Delegated Powers Memorandum to the EU (Withdrawal) Bill see here.

Paragraph 20 reads:

“In certain scenarios, a UK body may need to start evaluating and authorising chemicals in the UK taking over functions currently performed at a EU level. The European Chemicals Agency currently conducts evaluation and authorisation of chemicals under the REACH regulation (Regulation (EC) No 1907/2006). This function may need to be transferred so that consumers can continue to have confidence in the safety of certain chemicals and their proper regulation and international markets have sufficient confidence in the UK’s products so that UK businesses can continue exporting. In the event of no deal in this area, a UK government body would take on the functions of assessing chemical substances under the REACH regulation. Some sample drafting is at Annex A.”

The absence of any certainty on the future of chemicals regulation is deafening. It reflects a much larger concern about the prospect of a ‘compliance deficit’ and weakening of environmental standards following Brexit. The deadline to express views on the Government’s response is 5pm on Friday 20 October 2017.

Carbon Clear publishes 2017 Sustainability Report

Carbon Clear has published its research into the Sustainability Reporting Performance of businesses listed on the FTSE 100, IBEX 35 and CAC 40 indices. The focus of the report is on how some of the biggest companies in the world respond to investor calls for action on climate risk and legislative requirements, how they manage risk and future proof business operations and how they innovate to maximise on energy and emissions reductions opportunities and engage with stakeholders and beyond shareholders

The top ranking company in the FTSE 100 was Marks and Spencer, closely followed by BT Group. Interesting statistics identify that only 39% of FTSE 100 companies list climate change as a risk in their annual reports, 67% have reduced year on year emissions and whilst 70% have set carbon reduction targets, only 8% are science based targets. Supermarkets were the best performing industry, engineering and machinery the worst.

Overall, the report concludes that the FTSE 100 shows genuine improvement across several industry sectors and there has been substantial growth in the number of companies co-innovating with suppliers to address their own, and others’, sustainability challenges.

The report can be downloaded here

Prohibitive costs in private law nuisance

You might have thought that the European Court of Human Rights would welcome the opportunity to review the excessive costs regime that can apply to private litigants in England and Wales who seek to protect their home and possessions. Private nuisance proceedings carry a significant costs risk which often in practice precludes people from bringing proceedings. Indeed, the UK has been found to be in breach of its obligations in respect of the Aarhus Convention, but has declined to do anything about it – or rather, “The government will continue to consider how best to address these cases” (see “The government response to the consultation on proposals to revise the costs capping scheme for eligible environmental challenges”, MoJ, November 2016).

But it appears that the matter of Austin v UK (39714/15; 5 October 2017) is not such a case. This is the ECHR complaint arising from the refusal of costs protection by the High Court and the Court of Appeal (Austin v. Miller Argent (South Wales) Ltd [2014] EWCA Civ 1012). She was one of a large number of claimants who had sought a PCO to allow her to bring a claim about the dust and noise pollution from a nearby open-cast coal mine.

The ECtHR dismissed her application to them as inadmissible as it accepted the UK government’s argument that it was far too late for her in her own proceedings to introduce the human rights arguments. These were new grounds not pleaded in the UK courts until her application for permission to appeal to the Supreme Court.

So, although this claim is a win for the UK government, the question of whether the costs system for private nuisance cases is in breach of human rights (or, more specifically, the Human Rights Act) remains unresolved. The most that we now know is that the question has been left open. The ECtHR “would not exclude the possibility that the State’s responsibility under the Convention could potentially be engaged in such a case” (§40). We also now know that it will need to be pleaded in that way almost from the beginning if it is to have a proper chance of success.

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