Environmental Law News Update

In this latest Environmental Law News Update Christopher Badger, Robert Griffiths QC, SC, and Nicola Strachan consider a new enforcement and sanctions policy from the Environment Agency, demands from the EU for a ‘non-regression clause’ on environmental standards in any future Brexit deal and signs that the UK government may be prepared to permit more fracking applications.

Environment Agency publishes new enforcement and sanctions policy

The Environment Agency has published its new enforcement and sanctions policy, combining and amending its previous published documents. A new single revised enforcement and sanctions policy has been widely welcomed. At the same time, the natural capital calculator has also gone online, which is to be used to guide enforcement undertaking offers following pollution events to water.

The consultation response document provides a number of interesting developments, reflecting on the issues that were raised in the consultation, in particular in respect of the use of variable monetary penalties:

• In order to explain the Environment Agency’s assessment of culpability at an early stage, it is now proposed to include the culpability assessment and a summary of the reasons for it in the Notice of Intent to impose a variable monetary penalty, as well as a summary of the environmental harm caused (or risk) and the facts behind it;
• There will be no Panel involved in the decision making process for a variable monetary penalty. The views of the investigating officer and the lawyer who reviewed the case will contribute to the decision on whether a variable monetary penalty is an appropriate disposal, subject to the general oversight of the civil sanctions regime by directors;
• The wording of the draft policy has been revised. Previously it had stated that very large organisations “will” be treated in a class of their own. This has now been amended to “may” to reflect the wording of the sentencing guideline;
• The Natural Capital Calculator is only one choice for assessing the appropriate sum to be proposed in an enforcement undertaking offer and the Environment Agency would like to work with others to refine the model.

The new enforcement and sanctions policy can be found here. The consultation response can be found here

EU demands ‘non-regression clause’ on environmental standards

Michael Barnier has stated that the EU will insist on a “non-regression clause” in any future deal after Brexit in order to “prevent the reduction of pre-Brexit standards”. In a debate in the European Parliament on 10 April he said that the 27 member states would be extremely vigilant in blocking an attempt by the British government to undercut current regulations to gain a competitive advantage. His view was that there could be no “ambitious partnership” without guarantees on fair competition, social standards, tax dumping and environmental standards.

The standards of the United Kingdom are inevitably going to diverge from those of the EU post-Brexit. At present, the British government’s rhetoric is that it wishes to raise environmental standards, demonstrated by the 25 year environment plan. However, Michael Barnier’s proposal of a non-regression clause written into the final agreement raises a number of practical issues:

• How will it be policed? Is it the EU’s intention to leave open a role for the CJEU to monitor the activities of the UK after Brexit with a view to stamping out any competitive advantage that it perceives has been obtained through a reduction in environmental standards?
• Who will hold the UK to account? Are we likely to see complaints from EU member states that the UK has breached its obligations under the ‘Brexit agreement’ which may then result in sanctions being taken against the UK? Will citizens have a role in the complaints process over perceived reductions in environmental protection?
• Why is it assumed that the European model on environmental standards is superior in approach? Assuming that the UK is not going to engage in widespread environmental dumping of standards with a view to obtaining a competitive advantage over the EU, then will a “non-regression clause” actually hinder the development of UK environmental policy as a result of a misconception that divergence must equate to an unfair advantage?

The EU is concerned to see a level-playing field following Brexit. The UK is unlikely to agree to tie its own hands in the future over the development of UK policy. Another fiendishly difficult problem to be solved in the coming months.

Communities Secretary “minded to allow fracking”

A recent Public Inquiry (April 2018) into proposals to frack at Roseacre Wood in Lancashire may well result in a green light being given for this and other applications of this kind. The outcome of this Inquiry will, therefore, be keenly awaited. The initial application by Cuadrilla was not given Government approval, however, the Communities Secretary, Sajid Javid, said he “would be mindful to allow fracking” but not before an Inquiry to examine road safety had taken place. That statement may well be an indication that the application will be granted provided there are no other site-specific reasons for not allowing it to go ahead. The Government seems to be adopting an “in principle approach” to granting permission for hydraulic fracturing. This follows numerous statements by the Government that the process is safe and is needed to safeguard our key onshore resources (whether petroleum or deep geo-thermal). Fracking is viewed as desirable in the interests of the security of supply and in transitioning to a low carbon economy.

A third of UK energy demand is met by gas. As the country will use less coal in the next 10-15 years for electricity generation gas will help fill the gap alongside nuclear and renewable energy. It will help reduce carbon emissions. By 2025 it is expected that the country will have to import up to 70% of the gas we consume if we do not develop shale. There is great potential for the creation of many new jobs and increased tax revenues. Communities will benefit through access and increased employment. The Institute of Directors (see “Getting Shale Gas Working”, May 2013) estimated that UK shale gas production would be a net benefit to public finances and could attract annual investment of £3.7 billion and support up to 74,000 jobs.

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

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.

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