Environmental Law News Update

In this latest Environmental Law News Update Christopher Badger and Mark Davies consider the imposition of a £350,000 fine on Severn Trent Water Ltd for pollution, amendments to the Withdrawal Bill by the Lords to ensure greater environmental protections, and a win for ClientEarth and others in a CJEU judgment against continued logging in ancient Polish woodland.

Severn Trent Water Limited fined £350,000 after fish kill

On 19 April 2018, at Derby Crown Court sitting in Nottingham, Severn Trent Water Limited were fined £350,000 and ordered to pay costs of £68,000 after a pollution incident in November 2015 killed an estimated 30,000 fish and damaged the ecology of the River Amber over a 5km stretch.

A leak within a chamber at the Ogston Water Treatment Works had led to the contents being contaminated with sodium hydroxide, which was then washed through a road gully into the River Amber via an outfall pipe.

In passing sentence, His Honour Judge Smith found that:

“It beggars belief that a company of the size and expertise of Severn Trent Water had no policy whatsoever in respect of potential incidents arising in connection with their dosing chamber, either at this treatment works or indeed at any others throughout the UK. To have no policy whatsover when dangerous chemicals could have leaked out in any number of ways is highly negligent. The size and success of Severn Trent makes it even more astonishing.”

There have been some improvements to water ecology since the incident but something resembling a full recovery is not expected until the summer of this year. Severn Trent have contributed £228,000 to the Derbyshire Wildlife Trust.

Severn Trent’s accounts for the year ending 31 March 2017 show a turnover of £1.5 billion, gross profit before interest and tax of £540 million and net profit of £324 million. Allowing full credit to the company for the guilty plea, the financial penalty imposed equates to an approximate starting point for sentence of £525,000. That figure is still well within the bracket for a negligent category 1 sentence for a large company (which ranges from £140,000 up to £750,000) but exceeds the bracket for a negligent category 2 sentence for a large company (which ranges from £60,000 to £350,000). On the assumption that this was considered a category 2 offence (although this may have been arguable) then there has been some uplift to reflect the size of the company. In comparison, the most significant fine imposed against a water company since the decision of Aylesbury Crown Court in the Thames Water case was against United Utilities, who were fined £666,000 in September 2017 following the discharge of approximately 21,700 m3 of effluent into the River Medlock, significantly impacting fish population and water quality over four kilometres.

Severn Trent compared well in the Environment Agency’s report on the performance of water companies in 2016, with 30 category 1-3 incidents per 10,000km of sewer being the third lowest of the water companies behind United Utilities and Wessex Water.

The Environment Agency’s press release can be found here

Lords amend Withdrawal Bill to give ‘enhanced protection for certain areas of EU law’

314 Contents to 217 Not Contents was enough to pass Amendment 11, proposed by Baroness Hayter of Kentish Town, Lord Warner, Baroness Smith of Newnham and Lord Kirkhope of Harrogate.

Amendment 11 would introduce a new Clause into the Withdrawal Bill and nullify the Henry VIII powers for ‘certain areas of EU law’. As relevant to Environmental Law, it reads:

“(1) Following the day on which this Act is passed, a Minister of the Crown may not amend, repeal or revoke retained EU law relating to—
…

(e) environmental standards and protection,

except by primary legislation, or by subordinate legislation made under any Act of Parliament insofar as this subordinate legislation meets the requirements in subsections (2) to (5).

(2) Subordinate legislation which amends, repeals or revokes retained EU law in the areas set out in subsection (1) must be subject to an enhanced scrutiny procedure, to be established by regulations made by the Secretary of State.

(3) Regulations under subsection (2) may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.

(4) The enhanced scrutiny procedure provided for by subsection (2) must include a period of consultation with relevant stakeholders.

(5) When making regulations relating to the areas of retained EU law set out in subsection (1), whether under this Act or any other Act of Parliament, a Minister of the Crown must—

(a) produce an explanatory statement under paragraph 22 of Schedule 7, and
(b) include a certification that the regulation does no more than make technical changes to retained EU law in order for it to work following exit.”

The additional check and balance provided by Amendment 11 will no doubt be of some comfort to those concerned about wholesale backsliding on environmental standards post Brexit.

It should be remembered, however, that the amendment still has to be accepted when the Bill is returned to the Commons, otherwise it will be referred back to the Lords in the process affectionately referred to as “ping-pong”.

Same ClientEarth, Different Country

ClientEarth and six other organisations have chalked up an important win over the Polish government in a judgment handed down by the CJEU on Tuesday last week.

The case concerned logging in three forest districts (Białowieża, Browsk and Hajnówka) within the Puszcza Białowieska Natura 2000 site, a recorded ‘site of Community importance’.

The Białowieża forest is one of the few primeval woodlands (ancient woodland to those of us in the UK) left in Europe and had been heavily logged since logging limits were tripled in 2016. The Polish government has insisted that the reason behind the increase in logging was a protectionary measure following an outbreak of bark beetles.

However, of particular concern in the case was an environmental impact assessment undertaken by the Regional Directorate of the State Forest Office in 2015 and adopted by way of a management plan in November 2015. The plan laid down the conservation objectives and established the conservation measures in relation to the forest.

In a particularly damning passage, the CJEU noted that,

“…the spruce bark beetle was not identified in the slightest by the 2015 management plan as a potential threat to the integrity of the Puszcza Białowieska Natura 2000 site and that, on the contrary it is the removal of the century-or-more-old spruces and pines colonised by the spruce bark beetle that was identified by that plan as such a potential threat.”

Poland now faces an EUR 4.3 million fine if the logging is not stopped, potentially rising to EUR 100,000 a day.

**Next week’s blog will include reflections on People Over Wind and Peter Sweetman v Coillte Teoranta**

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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