Environmental Law News Update

December 18, 2017

In this latest Environmental Law News Update, Christopher Badger, Charles Morgan and Natasha Hausdorff consider an inquiry into nitrate pollution by the Environmental Audit Committee, a House of Commons Committee Report on Brexit and Euratom, and a light-hearted look at a seasonal ‘sewer song’ and the balance between property rights and environmental interests.


Inquiry into nitrate pollution launched

The Environmental Audit Committee has launched an inquiry into nitrate pollution in the U.K. It will consider the nature, scale and impact of nitrate pollution on the environment and human life and review the current approach to chemicals regulation.

Once nitrates are released into water they exacerbate the growth of algae, which can lead to shortage of oxygen and create dead zones in which animals cannot live. High nitrate concentrations can also contaminate drinking water and pose a risk to human health.

Nitrate pollution is one area currently regulated by the EU, but which is considered to be at risk following Brexit. Back in 2014, 78% of UK surface and groundwater bodies failed to meet the ‘good’ ecological status prescribed in the Water Framework Directive. In 2015 the UK was referred to the ECJ for poor waste water collection and treatment, a case which is still on-going. In February of this year, the European Commission told the UK to take more intensive action to tackle water quality, as well as air quality and protected species. In November of this year, Environment Agency chief executive James Bevan told the House of Commons Environment, Food and Rural Affairs Committee that legally binding 2027 water quality targets under the Water Framework Directive would not be met.

The key questions underpinning the inquiry are:

• What is the scale of nitrate pollution in the UK and what is the likelihood of the pollution getting worse?
• What are the consequences of nitrate pollution for the environment and for human life?
• How important are the different sources of nitrate pollution? Where should action be taken?
• How effectively does Government regulate nitrate usage so that nitrate pollution is reduced as quickly as possible?
• Are other nations taking more effective action on nitrates that the UK can learn from?
• What more could Government do to reduce nitrate pollution as quickly as possible?

The deadline for providing written submissions is Thursday 18 January.


House of Commons Committee Report on Brexit and Euratom

A report released last week by the House of Commons Business, Energy and Industrial Strategy Committee addressed the impact of Brexit on the civil nuclear sector. Of particular note is the potential effect on the UK’s membership of Euratom.

The report concluded that it was highly doubtful that the UK would be able to implement Euratom-equivalent safeguards (or even the IAEA standards) by March 2019. The Committee therefore recommended that Euratom should continue to manage the UK’s safeguards regime and that, in the event this was not possible, that the government ensure that transitional arrangements last long enough for the Office for Nuclear Regulation (ONR) to take over.

The Committee was concerned that the Government is overly optimistic that nuclear co-operation agreements with the USA, Canada, Australia and Japan can be in place by March 2019. Instead, it considered that the Government should ensure the UK is able to continue trading with other countries through Euratom’s existing nuclear co-operation agreements until new bilateral agreements are established.

The Nuclear Safeguards Bill, introduced by the Government on 11 October 2017 in preparation for the UK’s departure from Euratom, seeks to extend the powers of the Office for Nuclear Regulation and the Secretary of State’s power to make Regulations under the Energy Act 2013, including the power to modify retained EU law within the meaning of the European Union (Withdrawal) Bill 2017-19.

The Committee considers that the provisions regarding Euratom require further parliamentary scrutiny, in particular in relation to: (i) determination of ownership of fissile material; (ii) security of fuel supply; (iii) impact of nuclear new builds on export controls; and (iv) implications of changes to the UK’s relationship with the internal energy market, and the EU Emissions Trading System.

It is worthy of note that the Committee did not address whether, as a matter of law, the UK would be required to leave Euratom. The UK’s notice of departure from Euratom has been particularly controversial; it remains to be seen whether this report will impact the Government’s position.


Sewers in Song

Christmas is the season for gathering around the family piano for a good sing-along, or at least it was 100 years ago. Amongst the songs of the music hall era available to this day (in sheet music collections and via YouTube) is “They’re Moving Father’s Grave to Build A Sewer”, a lament of great interest to those of us whose work involves that of the water industry. Its origins are obscure and lyrics vary from source to source but its basic message is plaintively clear:

They’re moving father’s grave to build a sewer
They’re moving it regardless of expense.
They’re moving his remains to lay down five-inch drains
To irrigate some rich bloke’s residence.

No version of the song identifies the location or undertaker involved (far less the individuals), rendering it impossible to identify the specific statutory powers relied upon, although it seems likely that the works would have been performed under powers originally found in special Acts incorporating the provisions of the Towns Improvement Clauses Act 1847, section 24 of which, “if for completing the said works it be found necessary”, empowered local Commissioners to carry the new sewer “into or through any inclosed or other lands”. Similar provisions have existed ever since through frequent repeal and re-enactment. The current pipe-laying power is contained in section 159 of the Water Industry Act 1991. One notes also the reference to the expense incurred, doubtless by operation of the compensation provisions in section 24 or its successors (now section 180 of and Schedule 12 to the Water Industry Act 1991). A faculty may also have been required – see by way of example The Commissioners Of Sewers of the City Of London and the Vicar and Parishioners Of St. Botolph Without Aldgate v The Parishioners of the Same [1892] P 161.

The central issue raised by the lyrics is whether it was a proper exercise of those powers to disturb at least one (and probably many more) graves for what is neatly described in one version as “one old rich man’s convenience”. Such an imbalance of costs and benefits, or between direct consequences and externalities (to use the language of modern economics) may be compared and contrasted with (or perhaps likened to) that revealed by the long-running saga of Sir Charles Adderley’s battle with the Birmingham Corporation over the effect of that city’s sewage discharges upon the amenity of his downstream country estate, where his private property interests were effectively held to prevail over the needs of an entire population – Attorney-General v The Council of the Borough of Birmingham (1858) 4 K & J 527. We are shortly to hear from the Supreme Court on how the modern law should deal with the deprivation of a man’s property in the interests of the environment in Mott v Environment Agency, following argument last week from Stephen Hockman QC and Mark Beard. Something to look forward to in the New Year.

In the hope that this will provide our readers with a lively topic of Christmas dinner table conversation before retiring to the drawing-room to gather round the pianoforte and a blazing open fire (burning smokeless fuel of course), the members of Six Pump Court wish you a very Merry Christmas, One and All.

End Note

The inquisitive reader will quickly discover several more songs about sewers, including Spike Milligan’s “Sewers of The Strand”, Art Carney’s “Song of the Sewer”, Donald Jay’s “Working Down The Sewer”, The Stranglers’ “Down In The Sewer” and of course “The Sewer” from Les Miserables. These dwell upon the practical and functional rather than the legal aspects of the sewerage system, but are nonetheless of interest.


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Please note the next Environmental Law News Update will be sent out on Monday 8th January 2018.