Environmental Law News Update

For the first Environmental Law News Update this year, we make our predictions for the development of environmental law in 2018.

The long awaited 25 year plan

DEFRA’s objectives published in December 2017 are as follows:

1. A smooth and orderly exit from the EU;
2. A cleaner, healthier environment, benefiting people and the economy;
3. A world leading food and farming industry;
4. A rural economy that works for everyone, contributing to national productivity, prosperity and wellbeing;
5. A nation better protected against floods, animal and plant diseases and other hazards, with strong response and recovery capabilities.

As part of the government’s manifesto commitment to leave the environment in a better state than it was found, the government has repeatedly promised the publication of a 25 year environment plan. The current intention is to unveil the plan early in the New Year.

We predict the following:

• Single use plastic will be targeted

An easy start, but what will be interesting is how the government intends to measure progress against recycling targets. The EU currently measures progress against the total weight of waste that is recycled. Expect environmental impact and the value of waste to feature much more significantly. Reform is necessary, not least because of the recent decision of China to refuse to accept poor-quality recycled waste from the UK.

• More trees

DEFRA proposes to plant 11 million trees. 10% of England is currently covered by woodland. The goal is 12%. £5.7 has just been pledged to develop a new northern forest along a 120-mile stretch of land running next to the M62. Expect this and numerous other proposals as part of the approach to tackling air quality, not least to try and stop the repeated High Court challenges to the lack of effective action so far.

• Green corporate reporting

We anticipate that as part of a reform of corporate governance, the environmental impact of individual businesses will become a hot topic. Carbon emissions remain a very live issue. ‘Natural capital’ are the current environmental buzz words. Government won’t want to increase the regulatory burden on businesses (Regulators are still required to have regard to the statutory guidance on the growth duty published in March 2017), but as being seen to be green is currently considered to be a vote winner as well as socially responsible, we predict a significant enhancement of the current corporate duties to the environment.

Variable monetary penalties

The Environment Agency’s current consultation on its Enforcement and Sanctions Policy closes on 15 January. Within that consultation, it is proposed to update the Environment Agency’s guidance on the methodology used to calculate Variable Monetary Penalties.

It is suggested that the methodology will follow the Definitive Guideline on Sentencing Environmental Offences. This requires an assessment of culpability and harm, as well as an assessment of the size of the organisation and its financial circumstances. The starting points for penalties as set out in the Guideline will be reduced by a factor of 4 and very large organisations will be treated in a class of their own. The maximum penalty that can be imposed by the Environment Agency is £250,000.

To date, Variable Monetary Penalties have been rarely, if ever, deployed by the Environment Agency. However, we predict that this is likely to change. Financial pressures, including the cost of effective enforcement in the criminal courts, combined with the fact that it is thought that many companies may prefer for cases to be resolved by way of a civil sanction rather than have the stigma of a criminal conviction, are powerful factors that favour greater use of Variable Monetary Penalties for Environmental Permitting offences. Enforcement Undertakings have been largely seen as a success.

There remain a number of questions about the current proposed methodology, as well as uncertainty as to how Variable Monetary Penalties will be used in practice. We still await the first judicial review of a decision by the Environment Agency connected to civil sanctions. Yet as the Environment Agency considers that the Guideline provides a “proportionate and effective approach to setting a level of penalty in a consistent way”, if the Guideline does become the basis for the calculation of a Variable Monetary Penalty then we expect this form of alternative sanction to gain significant traction.

A new independent environmental body

Michael Gove has promised that the UK will have a new, independent environmental body capable of holding the Government to account on environmental issues. It is inevitable that the Government will have to consult on this body in the near future.

Its creation promises to be a fascinating development for UK environmental law. As yet unanswered questions are:

• Which bodies will fall under the remit of the new environmental body? For example, will the decisions of local authorities, as well as the executive, be capable of review?
• Who will be able to raise a complaint before the new environmental body? The European Commission is capable of receiving complaints from the public. Will this be possible before the new environmental body?
• What rules or principles will be used by the new environmental body to assess the environmental impact of any particular decision or policy?
• How will any sanction imposed by the new environmental body ensure an effective outcome for the environment?
• Will the new environmental body be ready to be up and running as of March 2019? Will it have effect across all of the UK?

The creation of this new independent body is a novel and potentially herculean task. The greater its remit, the more resources and time it will require and due to Brexit both are in short supply. DEFRA is keen on ensuring that there is no regulatory gap on Day 1 of Brexit and so there must be a risk that an interim measure with limited function, set up as of March 2019 simply to ensure that something was in place, will ultimately prove to be permanent and the UK will never get the extensive replacement of the functions of the Commission that this proposal promises.

Our prediction is that the forthcoming consultation is critical to the development of environmental law. Do not expect the new body to be an exact replication of the European Commission’s role and functions. This consultation will set out an intention to nationalise environmental law. And whilst we may not see any practical effect this year, the effectiveness of the UK’s environmental regulation is likely to be decided in the next few months.

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