Environmental Law News Update

In this latest Environmental Law News Update William Upton, Nicholas Ostrowski, Frances Lawson and Mark Davies consider the failure of Highways England’s plan for a Kent Lorry Park, the recent publication of the Environment Agency’s Enforcement and Sanctions Guidance, revisions to the EU ETS and the Powering Past Coal Alliance, and the new Conservation of Habitats and Species Regulations 2017.

Procedural car crash in Kent Lorry Park

When we advise our clients about large projects, we often have to warn them about the consequences of not following the Environmental Impact Assessment regime. They normally listen. Now we have a real live catastrophic example of what happens if they do not.

Highways England have been promoting a lorry parking facility for 3,500 HGVs on M20, to provide a holding area for HGVs as alternative to parking them on the M20 at times when the Channel tunnel and ports are disrupted (known as “Operation Stack”). It is a major problem, as they handle 90% of freight traffic between the UK and mainland Europe. Operation Stack also causes major disruptions to the M2, M20 and local roads. For instance, the area around Maidstone (some 30 miles inland) tends to grind to a halt. Its worst example came in 2015, when Operation Stack was implemented for 31 days, mostly in June and July.

The lorry park solution has been talked about for years. It finally got £250m backing in the Chancellor’s 2015 Autumn Statement, and a preferred site was identified in July 2016. Highways England produced a non-statutory “Environmental Impact Analysis” report, and carried out some consultation. In October 2016, a local hotel business and the Parish Council challenged the proposals by way of judicial review. They said that there was no proper EIA, that Highways England had failed to consider other possible alternatives and that local people had been unable to make representations properly. After all, the Secretary of State must not grant consent for an EIA development unless an EIA has been carried out in respect of it.

The Secretary of State for Transport has just conceded defeat, 3 weeks before the main court hearing, and has said the government will now start to look at alternatives. So instead of the site opening in December 2017, there may be a planning application made sometime in 2019 (with its own EIA). See more here.

There may be some politics mixed up with this, but it should not have fallen down on this legal point. As Richard Burnett, chief executive of the Road Haulage Association, is quoted as saying: “I find it beyond belief as to why the most basic of procedures, that of an environmental assessment, was not undertaken simply on the assumption that it was not needed.”

Recent information provided by the Environment Agency may assist companies to avoid criminal prosecution.

The Environment Agency’s Enforcement and Sanctions Guidance sets out the procedure that the Environment Agency will follow when considering whether to accept an Enforcement Undertaking for breach of specified environmental regulations rather than commencing a criminal prosecution. An Enforcement Undertaking offered by a company will go before a civil sanctions panel but it can be hard for affected companies to determine how to ‘pitch’ their offer and exactly what financial and procedural matters the Environment Agency will expect to be covered.

The Environment Agency recently published a list of all the enforcement undertakings which it accepted between 28 January 2017 to 31 August 2017.

The list confirms that over 40 enforcement undertakings (EUs) were accepted in respect of environmental offences (including packaging, environmental permitting and fisheries offences) in that period. The list sets out both the ‘actions that will secure equivalent benefit or improvement to the environment’ (typically a financial payment to an environmental trust or charity ranging from £1,000 to £650,000) and what ‘Actions to stop offending, restore/remediate, come into compliance or benefit any person affected by the offences’ were undertaken.

While each EU is inevitably highly fact-specific and it is difficult to read too much into the financial payments made by the companies involved, Practitioners who may be in the process of inviting the Environment Agency to consider an enforcement undertaking in lieu of a criminal prosecution should be aware that the list exists and may wish to scrutinise the list carefully to understand what the Environment Agency expects to see in order to accept an EU rather than to press on with the more disruptive (and expensive) process of criminal prosecution. The list shows that there is scope for practitioners to suggest inventive and creative means of showing that clients have learnt their lessons and that offending is not likely to re-occur.

Revisions to the EU ETS and the Powering Past Coal Alliance

Earlier this month on the 9th of November the European Parliament and Council announced that a provisional agreement has been reached to revise the EU Emissions Trading Scheme (EU ETS) after the third period comes to a close in 2020.

The Commissioner for Climate Action and Energy, Miguel Arias Cañete, lauded the agreement, “Today’s landmark deal demonstrates that the European Union is turning its Paris commitment and ambition into concrete action. By putting in place the necessary legislation to strengthen the EU Emissions Trading System and deliver on our climate objectives, Europe is once again leading the way in the fight against climate change.”

The proposed revisions have not been met with such universal acclaim however. Some commentators have noted that a late compromise would appear to allow less wealthy EU Member States to continue allocating free allowances to energy producers, some of whom would include those running ageing coal power stations. The compromise apparently compounds what many see as an unacceptable concession to fossil fuels by raising the amount governments can allocate in this manner from 40% to 60%.

It is interesting that the concession had to be made at all given that there is clearly international appetite to reduce reliance on coal. Just a week after the announcement about the provisional agreement on the EU ETS, the United Kingdom and Canada announced the creation of the Powering Past Coal Alliance, 30 countries committed to phasing out coal by 2030, at the Conference of the Parties in Bonn.

With uncertainty as to the UK’s continued membership of the EU ETS many may find the establishment of the Powering Past Coal Alliance a reassuring move for a country with pressing obligations under not only the Climate Change Act 2008, but also the Paris Agreement.

Conservation of Habitats and Species Regulations 2017

On 30th November, the new Conservation of Habitats and Species Regulations 2017 will come into force. The new regulations consolidate the 2010 regulations with the ten sets of amendments that have been made since they were adopted, make other minor amendments to align the regulations with wider legislative changes, and amend several provisions of the Marine and Coastal Access Act 2009, such as the definition of a “European marine site”. The Government’s rationale for making the 2017 regulations is that “consolidation now will make the Habitats Regulations 2017 easier to follow and make subsequent necessary operability changes in the light of our Exit from the EU easier to understand”.

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