Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Mark Davies and Ana Kantzelis consider the attention given to environmental issues in the Draft UK-EU Brexit Agreement, the government’s attempts to tackle single-use plastics, and the extent to which the UK and Ireland are meeting their Aarhus Convention obligations.

Consideration (or lack thereof) of the environment in the Draft Agreement between the UK and the EU on Brexit

On 19 March the ‘Draft Agreement on the withdrawal of the UK from the EU and the European Atomic Energy Community’ was published (available here). The document is split into green text (agreed at negotiators’ level and only subject to technical legal revisions in the coming weeks), yellow text (agreed on the policy objective but drafting changes or clarifications required) and white text (proposed by the EU with discussions ongoing but no agreement as yet). Unsurprisingly, most of the coverage of the Draft Agreement has centred around the implications for trade and the border between the Republic of and Northern Ireland. However, conspicuous by its absence is any consideration of the environment.

The Draft Agreement is 130 pages; the word ‘environment’ (or derivatives thereof, to be generous) appears a total of six times. One of those entries is within the contents page, another in an explanation of the annexes. ‘But wait!’ I hear you cry, ‘an entire Article in the Protocols is dedicated to the environment!’. Well, yes, Article 7 of the Protocols is titled ‘Environment’, but: firstly, its text is white and therefore not agreed; secondly, its contents relate to:

‘the provisions of Union law for environmental protection concerning the control of the import into, export out of, release into, or transport within the Union of substances or material, or plant or animal species, listed in Annex 2.8 to this Protocol’

And finally, and most importantly, it relates solely to the Protocol on Ireland/Northern Ireland. There is not one mention of the environment within the substantive body of the Draft Agreement on withdrawal.

You may ask, ‘what is Annex 2.8? Does that provide us with any indication as to what form environmental protection might take post-withdrawal more generally?’ An excellent question, but not one that can be answered as Annex 2.8 is not included within the Draft Agreement.

In short, the environment does not appear to have featured explicitly in the production of the Draft Agreement.

One article within the main body of the Draft Agreement that has raised a few eyebrows (the text, predictably, is white) is Article 85, the ‘Binding force and enforceability of judgments and orders’. Article 85 provides that judgments and orders of the Court of Justice of the European Union (“CJEU”) handed down before the end of the transition period (at present the 31st of December 2020, Article 121), and those handed down under Article 82 (already pending cases decided after the end of the transition period) and Article 83 (new cases), ‘shall have binding force in their entirety on and in the United Kingdom’.

Article 85 would appear to be in direct conflict with section 6 of the draft European Union (Withdrawal) Bill, which states that a court or tribunal is not bound by any principles made or decision given by the CJEU after the date of Brexit – 29 March 2019. If it is proposed that judgments of the CJEU will continue to have effect between 29 March 2019 and 31 December 2020, and Schedule 1, section 2 of the Withdrawal Bill (the sub-section of the Bill that would infamously, and potentially, exclude general environmental principles such as the polluter pays post-Brexit) is amended accordingly to account for this, then would an expedited judgment from the CJEU decided before 31 December 2020 that recognised such environmental principles as general principles of EU law be able to safeguard those principles after the end of the transition period and give some level of security to environmental law? Much like the contents of Annex 2.8, we will have to wait and see.

Tackling single-use plastics

Alongside Chancellor Philip Hammond’s Spring Statement on 13 March 2018, HM Treasury launched a call for evidence, ‘Tackling the plastic problem: using the tax system or charges to address single-use plastic waste’. The announcement was foreshadowed in the Autumn 2017 Budget and follows the publication, earlier this year, of the ‘25 Year Environment Plan’, in which the Government pledged to eradicate all avoidable plastic waste by the end of 2042.

The call for evidence aims to explore how changes to the tax system or other charges could be used to reduce amounts of single-use plastic waste, specifically by reducing the unnecessary production of single-use plastics in the first place, increasing their reuse and improving the rates at which they are recycled. It will also consider how the same economic incentives might be used to drive innovation in relevant sectors, for example, to encourage growth in the domestic recycling industry.

The call for evidence considers the entire supply chain of single-use plastics, from production and retail to consumption and disposal, and asks 18 questions, covering such key issues as how single-use plastics should be defined, their harms and benefits, points in the life cycle at which the government could potentially intervene and the impact of any potential interventions. Interestingly, it specifically requests comments on a recent proposal put forward by the Environmental Audit Committee for a levy on disposable coffee cups, which would operate along the same lines as the existing (and very effective) 5p charge on carrier bags.

The deadline for responses to the call for evidence is 18 May 2018.

It is not currently clear what the timeline for the formulation and implementation of any policy recommendations arising out of the call for evidence may be. However, a growing public awareness of the scale of the problem of plastic pollution, as well as the fact that the UK’s waste and recycling industry and infrastructure is likely to come under significant pressure in the near-term due to China’s recent decision to impose severe restrictions on the import of plastic and paper waste for recycling, imply that the task of reducing single-use plastic waste will remain an urgent and important priority for the legislature.

More ’hus

UK on the Naughty Step Again …

The UK’s unhappy engagement with the provisions of the Aarhus Convention (the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters) continues.

Following the qualified success of their judicial review proceedings last September concerning the costs rules governing Aarhus Convention claims (see R (RSPB and others) v Secretary of State for Justice [2017] EWHC 2309 (Admin)), the RSPB and Friends of the Earth Scotland have now submitted a communication to the Aarhus Convention Compliance Committee asserting the UK’s failure to provide the public with an effective right of substantive challenge. Signatories to the convention are required to enable challenges to both procedural and substantive legality. As the RSPB put it:

“The Aarhus Convention requires the UK to provide more than a checklist of procedural compliance – it requires the courts to grapple with the merits of the decision to a much greater extent than it currently does.”

Presently, UK domestic challenges are limited to judicial review of the decision-making process.

On 21 March the Committee declared the communication admissible so it will now receive full consideration. Given the UK’s record to date in front of the Committee and the persuasive simplicity of the RSPB’s position, the Government finds itself in an unenviable position.

…. And Eire Too

Meanwhile, across the Irish Sea, Convention rights have been engaged by proposals by EirGrid plc to erect 300 pylons carrying 138 miles of high-voltage cables to link the girds of Eire and Northern Ireland. These proposals were challenged by North East Pylon Pressure Campaign Ltd. (NEPP). An Bord Pleanála, the body responsible for considering applications for development consents, convened a hearing. NEPP challenged this procedure by judicial review in the Irish High Court. In those proceedings it sought an interlocutory injunction to restrain the hearing. The substantive relief sought was wide-ranging, including challenges to the propriety of An Bord Pleanála acting as decision-maker given that the Minister had also appointed it as the authority responsible for facilitating and co-ordinating the permit-granting process for the same project.

The injunction was refused and so too was the application for permission, on the grounds of prematurity i.e. that NEPP should have awaited a final decision by An Bord Pleanála and challenged that. Numerous issues arose as to costs, which the court referred to the CJEU (First Chamber). That court had jurisdiction because the EU is itself a party to the Convention and has implemented the Convention in EU law by Directive 2011/92/EU, which in turn must be implemented in national law by Member States. This includes the requirement that Member States must determine at what stage decisions etc. may be challenged. In briefest summary the CJEU held:

• that the requirement that costs must not be prohibitive applies to permission hearings required by national law as well as to substantive hearings
• where the scope of the proceedings is wider than issues concerning the public right of participation in environmental decision-making, the Directive’s provisions as to costs are by their wording limited in application to costs relating to those issues; where there are also other issues, it is for the national court to distinguish, on a fair and equitable basis, between costs which engage the protection of the Directive and other costs
• a national court of a member State must nevertheless construe national procedural law to give the fullest effect possible to articles 9(3) and (4) of the Convention (access to justice and lack of prohibitive expense) in cases where the applicant is seeking to ensure compliance with national environmental law, even those these articles do not have direct effect; this exercise may result in costs outwith the protection of the Directive nevertheless enjoying similar treatment in a national court;
• neither the Convention nor the Directive prevents national courts from making costs orders against applicants; in doing so, a court may take account of factors such as prospects of success and whether an application is frivolous or vexatious, but must still ensure that costs imposed are not unreasonably high
• the protection afforded by the Convention applies to enforcement of environmental law “in the abstract”; a connection to actual or potential damage to the environment is not required and national legislation imposing such a requirement is a derogation from Convention rights.

This significant decision will no doubt encourage further scrutiny of the UK’s “bare necessities” approach to Aarhus implementation in relation to costs rules; Part VII of CPR Part 45, which is already looking like “the House that Jack Built” as a result of frequent “tweaks” in response to determinations of its inadequacies.

The full judgment can be found here.

**Please note there will be no update next week – the next Environmental Law News Update will be sent out on Monday 9th April 2018**

The Chambers UK Guide to Environmental Law 2018 was published this month and written by Six Pump Court’s Environmental Law Team. The Guide can be accessed on the Chambers UK website. You can also use the link here to access the full-text pdf version. The Guide provides easily accessible information to help navigate environmental law in the UK and covers the environmental regulatory framework, environmental protection, developments in policy and law, enforcement, liability and disclosure requirements as well as the law as it relates to contaminated land, waste, asbestos, climate change and emissions.

Have you seen our latest Environmental Law Video Newscast – a monthly round-up of the latest developments in environmental law.

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