Environmental Law News Update

January 29, 2018

In this latest Environmental Law News Update, Christopher Badger and William Upton consider an early victory for ClientEarth in its legal action to hold the government to account over their Air Quality Plan, contributions from climate change bodies to the Environmental Audit Committee’s inquiry into green finance, and extra funding for DEFRA to help prepare for Brexit.


ClientEarth – early win

Readers will recall that ClientEarth are taking the government back to the High Court about their failure to adopt an effective set of measures to ensure the UK meets the EU air quality legal limits within “in the shortest possible time”. The Secretary of State must also take steps which mean meeting the limit values is not just possible, but likely.

The claimant’s task is more difficult this time around, as the judge is being asked to review more of the merits of what is being proposed – which is not the natural territory of the Administrative Court. Part of Defra’s defence is that the UK regime relies on local government action, that the revised air quality plan (June 2017) sets out £3bn of measures aimed at tackling the issue, and that it has introduced – for the first time – an end date for the sale of new diesel and petrol cars (by 2040). Judgment has been reserved.

However, when the case opened on Thursday 25 Jan, one of the Defendants did concede that it had acted unlawfully. The most recent version of the UK Air Quality Plan had not required any action in Wales at all – leaving it to the Welsh Government to publish its own Clean Air Plan for Wales, including include a Clean Air Zone Framework for local authorities to follow. The Welsh Government had said that it had plans to publish the document later this year, even though all of its designated “zones and agglomerations” (Swansea Urban Area, north Wales and south Wales) exceed the permitted levels of nitrogen dioxide. It has now agreed that it will draw up a timetabled air quality plan for Wales, and work with ClientEarth to agree the ‘consent order’. So, once again, ClientEarth have been vindicated. But cynics might also note that the defendant has gained itself a further 8 months by the way in which it has defended the claim.


Mandatory climate risk disclosure

The Centre for Climate Change Economics and Policy (CCCEP), together with the Grantham Research Institute on Climate Change and the Environment, has submitted written evidence to the House of Commons Environmental Audit Committee to assist the Committee’s inquiry into ‘green finance’, launched in November 2017.

As part of the document’s submissions, the evidence advocates that climate risk disclosure by publicly listed companies should be a mandatory part of existing financial disclosure rules. The evidence suggests that voluntary reporting alone may not be enough because companies do not have a sufficient incentive to disclose comparable and reliable data and refers to a recent survey by HSBC that showed that whilst two-thirds of institutional investors are planning to increase their climate-friendly investments, they currently lack the appropriate information to do so.

The evidence also highlights the great deal of variability within sectors in how they report on carbon emissions. For example, cement producers have created the Cement Sustainability Initiative voluntary reporting guidelines, but these are followed by only 10 out of the 19 largest cement producers. Many other sectors lack voluntary guidelines in general, resulting in heterogeneous reporting of carbon intensities.

The government has already announced that a Green Business Council will be set up to develop and articulate the business case for reporting on natural capital risks. The words “business case” suggest that there is no appetite in government for imposing mandatory reporting that would increase the regulatory red tape on businesses unless such a requirement can be seen to be a positive contribution to business rather than a burden. Attracting investment through the publication of environmental information may provide that incentive.

A complete draft of the written evidence can be found here


DEFRA granted an extra £16m for Brexit uncertainties

Michael Gove has approved emergency cash for DEFRA to prevent “severe disruption to vital public services”.

Funding was requested for six specific projects:

  • £5.8m for new IT capability to enable registration and regulation of chemicals placed on the UK market;
  • £7m for a new national import control system for animals, animal products and high-risk food and feed;
  • £1.6m to deliver systems for licensing and marketing of veterinary medicines;
  • £1m for development of a new catch certificate for UK fish and fish products being exported to the EU;
  • £1m to develop arrangements for data exchange to identify the movement of EU and third country vessels in UK waters and the movement of UK vessels in EU or third country waters;
  • The development of a UK system to manage the quota of fluorinated gases and ozone-depleting substances.

The approval is the first use of ministerial directions to provide cover for Brexit spending since Treasury permanent secretary Tom Scholar and Department for Exiting the European Union chief Philip Rycroft wrote to other department chiefs in October telling them to seek ministerial directions to authorise spending to implement new systems needed for after the UK leaves the EU.

As part of the request for the extra funding, DEFRA’s permanent secretary Clare Moriarty wrote “We are implementing a major programme of work at pace in order to be ready for a range of scenarios including the possibility of a ‘no deal’ exit without a transition period.” Clear evidence, you may think, of the considerable impact on both time and resources generated as a result of Brexit’s lack of direction and residual uncertainty.


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