Environmental Law News Update

In this latest Environmental Law News Update, William Upton, Nicholas Ostrowski and Natasha Hausdorff consider the recent report published by the Green Finance Taskforce, human rights damages paid to those affected by DECC changes to solar power subsidies, and the interaction between environmental and personal injury law explored in a recent Supreme Court case.

Accelerating Green Finance

The Green Finance Taskforce recently published its report, ‘Accelerating Green Finance‘, calling on the Government to consolidate the UK’s position as a world-leading hub for green finance.

Chaired by former Lord Mayor of the City of London Sir Roger Gifford, the independent taskforce was established in September 2017 to look at how the UK could fulfil this vision, focusing on the necessary systems and structures to make green finance an integral part of our financial system. Similarly, the Government’s October 2017 policy paper on ‘Clean Growth‘, recognised it as one of the ‘Grand Challenges’ for the economy. It noted an enormous opportunity to maximise the advantages for UK industry from the global shift to clean growth through the development, manufacture and use of low carbon technologies, systems and services that cost less than high carbon alternatives.

Advocating the creation of a new Green Finance Institute, to act as a ‘one-stop-shop’ for all work relating to the sector (from international engagement to green fintech, climate and data science), the ‘Accelerating Green Finance’ report sees the UK’s status as host to a world-leading financial services centre as an opportunity to direct development in green finance. A further key recommendation is that the Government issue a green sovereign bond to help fund future national green projects, including the UK’s flood defence and resilience.

The Taskforce worked with over 140 organisations across the finance and energy sector. It comprises leaders and representatives from the London Stock Exchange, the Bank of England, the Environment Agency, and from banks, law firms and academia. The recommendations focus on how the Government and the private sector can work together to focus on green finance, including:

• driving demand and supply for green lending products;
• setting up Clean Growth Regeneration Zones;
• improving climate risk management with advanced data;
• building a green and resilient infrastructure pipeline; and
• boosting investment into innovative clean technologies.

Sir Roger Gifford, GFI Chairman said: “This report marks a significant starting point for truly propelling green finance onto the national agenda. We look forward to engaging with Government closely on this in the short and long-term future.”

John Glen MP, Economic Secretary to the Treasury and City Minister said of the report: “Our first-class talent and unrivalled ambition resulted in over $10 billion being raised through green bonds listed in London in 2017, and we have no intention of slowing down. I want to thank the Taskforce for their hard work, and I look forward to working with the industry on their recommendations to ensure that this market flourishes, not just at home, but across the world.”

Human Rights Act Damages and Solar Power

Readers may recall that the coalition government abruptly changed the ‘feed-in tariff’ (FIT) subsidy rules for solar power in 2011, which led to a severe impact on the industry and several firms saying that they would sue. The courts confirmed that this change was unlawful (because the Act did not allow them to change the FIT subsidy retrospectively). A claim for damages against DECC was brought under the Human Rights Act 1998 (claiming some £250 million). Some preliminary points of law were decided in the claimants’ favour, and the cases were due to continue to a trial to resolve the remaining factual issues and quantum of damages, starting in January 2018. All then went quiet.

In one of those happier consequences of FoI, the lawyers for some of those firms have now been able to speak about the actual events (see here). The Government had insisted that the settlement terms be kept confidential – as it so often the case when litigation is settled. However, in light of the Government’s freedom of information response, the settlement sum is now public knowledge. The headline confirms just how severe that impact was – “£60 million damages for solar companies”. Assersons are also correct to say this is the largest award made under the Human Rights Act, that we know of.

Interaction between environmental and personal injury law explored in the Supreme Court

In the case of Dryden and others v Johnson Matthey plc [2018] UKSC 18, the UK Supreme Court allowed an appeal by employees and former employees of the technology and chemicals company Johnson Matthey plc who had been exposed to platinum salts resulting in platinum salt sensitisation.

The legal novelty in the case resulted from the fact that platinum salt sensitisation, per se, results in no symptoms but further exposure to chlorinated platinum salts normally causes an allergic reaction.

After testing revealed that the appellants had developed platinum salt sensitisation, they were no longer permitted to work in areas where they might have been exposed to platinum salts and develop allergic reactions but were moved to different roles at the Respondent firm where they said they suffered financially and earned less. Effectively, the appellants brought a claim for personal injury where there were no personal injury symptoms.

Overturning the decision of the High Court and Court of Appeal who found for the respondent company on the grounds that pure economic loss was not actionable, the Supreme Court (Lady Black giving the sole judgment) held that the physiological changes to the appellants’ bodies was undoubtedly harmful and an actionable personal injury even in the absence of symptoms. This personal injury resulted in the appellants having to accept lower paid work.

It remains to be seen whether this decision has any wider consequences or is limited to the particular facts of this case. Those involved in litigation arising from poor air quality may take some comfort from this decision if, for instance, the evidence shows that poor air quality has sensitised those affected or has resulted in some subtle, non-obvious personal injury. The Judgment makes these type of claims more arguable, even if some might say the courts should try as hard as they can to restrict this case to its own facts.

Chambers UK Guide to Environmental Law 2018 was published this month and written by Six Pump Court’s Environmental Law Team. You can also use this link 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  published last week – a monthly round-up of the latest developments in environmental law.

To keep up-to-date follow us on Twitter @6pumpcourt or contact bridget.tough@6pumpcourt.co.uk to be added to the mailing list. If you have any comments or suggestions please feel free to contact us