Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger, Gordon Wignall and Jill Barrett report on recent prison sentences imposed on company directors involved in waste crime, current agricultural concerns including the future of Glyphosate and the UK’s international environmental treaty obligations after Brexit.

Prison sentences for company directors involved in waste crime

Corporate officers and one manager were sentenced on 30 October at Sheffield Crown Court for their part in repeatedly breaching environmental permits at three sites in Worksop, Nottinghamshire and Kiveton and South Anston in South Yorkshire.

Kevin Burgess, the principal director of Nottinghamshire Recycling Limited and Park Farm Limited, was sentenced to a total of 21 months imprisonment.  Nottinghamshire Recycling Limited had previously been convicted in 2011 for offences linked to the illegal storage of wood waste. Despite this, the company continued to act illegally, helping to maximise its financial gain at the expense of the environment. Waste was stored in huge quantities outside of the permitted boundary and waste was also illegally blended on site in an attempt to avoid the higher rates of landfill tax. Five fires occurred at the Worksop site during 2013 and 2014.

Both companies have gone into liquidation. Three other directors received suspended sentences of imprisonment and another director and a site manager were sentenced to community orders.

All of the defendants pleaded guilty and consequently received an appropriate reduction to their sentences. All six were of previous good character.

The Environment Agency’s press release can be found here

Agricultural concerns, the future of Glyphosate and the precautionary principle

Environmental concerns which have caused comment recently in the agricultural sector include the Environment Agency’s release of its data set concerning natural flood management and responses to DEFRA’s new powers in respect of littering.

The biggest news in the sector is the fall-out from the European Parliaments’ resolution concerning the future licensing of glyphosate. Not only do the faltering attempts by the Commission to promote the chemical amount to important news in its own right, but they also inevitably give rise to domestic issues in relation to Brexit.

DEFRA’s announcement on 24 October of a modest increase in on-the-spot fines for littering and the new development of a power to fine vehicle owners from whose cars litter is thrown, was preceded by the release of its fly-tipping statistics on 19 October. Both the NFU and CLA called for a significant increase in enforcement action, the statistics showing a rise in incidents but significant decline in enforcement.

Co-incidentally, at the time of the announcement, members of Chambers at Six Pump Court were both prosecuting and defending a group of waste company directors who received sentences of imprisonment for offences including the illegal spreading of semi-processed waste on to farmland (see above).

On 31 October DEFRA published an extensive evidence base for the purpose of developing ways of working with natural processes (“WWNP”) to reduce flood risk. The material included 65 case studies and guidelines. One practical use will be in ensuring that a proper business as well as environmental case can be made out for any grant aid which may be available, for instance by way of Natural England’s Countryside Stewardship grants.

Glyphosate is the key ingredient in Monsanto’s product Roundup. Approval for the use of product was made possible, initially, under an EU implementing regulation 1107/2009/EC, and its approval runs out at the end of 2017. The Commission has a delegated power to renew its approval, but this is subject to the control procedures made available to the European Parliament as set out in Council Decision 1999/468/EC.

On 24 October the Parliament adopted a Resolution under 1999/468/EC. This rejected the Commission’s proposal to renew the approval for ten years. Indeed the Resolution called on the Commission “to adopt necessary measures to phase out … glyphosate in the EU no later than 15 December 2020”. On 25 October a vote by the relevant Standing Committee was postponed to 9 November.

The Commission itself had relied on approvals by the European Food Safety Authority the European Chemicals Agency. Notwithstanding that, both the underlying Regulation and Parliament’s Resolution carry pleas to the applicability of the precautionary principle, itself deriving from Art.191 TFEU.

Public reaction was much varied. Greenpeace tweeted that glyphosate “is the asbestos of our generation”. A leader in the latest Farmer’s Guardian carried the headline: “Hysterical eco warriors must not prevail in glyphosate saga”.

A more lawyerly focus is on the much misunderstood and arguably over-used ‘precautionary principle’ in the light of Brexit. Has it now become domestic law, or is it a “general principle of EU law” which will or will not continue to exist under Schedule 1 of the European Union (Withdrawal) Bill?

As of 3 November, the pdf of the notices of amendment to the Bill now run to 169 pages, including the Grieve amendments which would affect inter alia the Henry VIII powers under clause 7, and in turn, the application of this important driver of environmental policy.

The future direction of the precautionary principle in the UK is uncertain. But at least on this topic, uncertainty prevails within the EU, as well as domestically.

The UK’s international environmental treaty obligations after Brexit

The impact of leaving the EU on the UK’s international treaty relations will be profound and unprecedented, in many fields including the environment. For each treaty, the effect will vary according to the division of responsibility for its content as between the EU and the Member States (MS), and on whether the UK or the EU or both are party to it. The interaction between international law, EU law and UK law is complex.

In considering the effects of Brexit, treaties need to be categorised both by participation: (1) EU only; (2) EU and UK; (3) UK only, and by the way EU law assigns competence (responsibility) for the subject-matter: (a) exclusive EU competence; (b) shared EU and MS competence; (c) MS competence. Generally (with some exceptions) these categories correlate (1)=(a), (2)=(b) and (3)=(c). To give two examples: the EU has exclusive competence over fisheries and is party to the Northwest Atlantic Fisheries Organization, but the UK is not. The EU and MS both have competence in relation to climate change and both participate in the UN Framework Convention on Climate change (UNFCCC) and related treaties.

Most environmental treaties are ‘mixed agreements’ meaning that the EU and MS share competence. Both the EU and the UK are party to most of them, where the treaty permits this. Most environmental treaties do. Typically, there is a provision that permits the EU to join under certain conditions (a ‘REIO clause’). Where its MS are also parties, the EU must declare the extent of its competence over the matters governed by the treaty. Some treaties also require the EU to inform other Parties of any substantial change. These conditions are insisted upon by other States (eg USA) concerned about lack of transparency over who would be responsible for non-compliance. For example, the EU and the UK both joined the UNFCCC in 1993, and the EU made the requisite competence declaration. The same was done for the Paris Agreement in November 2016, except that the EU began its declaration ‘The following States are at present Members of the European Union……’.

When the UK leaves the EU, the EU will presumably inform all relevant treaty depositaries that it is no longer responsible for treaty obligations applicable to the UK. The UK will remain a party to those treaties and therefore bound by all the obligations via a vis the other treaty parties. This means that by Brexit day, when EU law ceases to apply in the UK, the UK needs to have new legislation to replace all the EU law that currently implements the EU’s treaty obligations. If this is not feasible, what are the alternatives?

None of the alternatives seem attractive or simple. Most treaties provide for withdrawal, on giving a specified period of notice. It is hard to imagine the Government would contemplate the UK’s wholesale withdrawal from environmental treaties, although it might consider it in selected cases. Most treaties do not permit reservations or opt-outs after ratification, but there may be a few treaties that do, or allow some flexibility on national commitments. Or, if new legislation were delayed only by a short period, might the government risk leaving the UK in technical breach of some treaties and hope for the best?

It is hard to imagine other States parties to a treaty being content with ambiguity over the extent of the UK’s acceptance of or ability to comply with all its treaty obligations. Presumably, the UK will clarify its position to all relevant depositaries in due course, probably at the same time as the EU does. Long before that, the Government should clarify its intentions to Parliament and the British public, not least to ensure that the necessary new legislation is enacted, via the EU Withdrawal Bill or otherwise, before Brexit day, and that there is no weakening of the UK’s international environmental commitments.

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