Environmental Law News Update

May 29, 2018

In this latest Environmental Law News Update, Christopher Badger, Mark Davies and Antony Batholomeusz consider an EGC judgment in three linked agricultural pesticide cases, EU infringement proceedings against the UK, France and Germany for breaching nitrogen dioxide limits, and prospects for environmental protection under the EEA Agreement.


The EGC floats like a butterfly and stings like a bee

On 17 May the General Court of the European Union (“the EGC”) delivered a judgment with a sting in its tail in three linked cases, (T-429/13 Bayer CropScience AG and Others v Commission, T451/13 Syngenta Crop Protection AC and Others v Commission and T-584/13 BASF Agro BV and Others v Commission) confirming the prohibition enacted by Regulation No. 485/2013 on the use of various pesticides in the neonicotinoid family (clothianidin, thiamethoxam and imidacloprid).

The case was not a complete loss for the agrochemical industry with the EGC upholding part of the action brought by BASF annulling the measures restricting the use of the pesticide fipronil. The Court found that the restrictions had been imposed without a prior impact assessment and that that failing had itself breached the precautionary principle.

Notwithstanding the decision in respect of fipronil, the verdict constitutes a win for bee-lovers. The prohibition was originally brought in on 26 May 2013 following a report by the European Food Safety Authority (“EFSA”) into the apparent decline in bee colonies attributed to the misuse of the pesticides.

The cases were brought by various industry giants: the Bayer group produces and markets imidacloprid and clothianidin in the EU; the Syngenta group produces and markets thiamethoxam (as well as treated seeds); the BASF group produces and markets fipronil. As part of its case Syngenta sought payment of compensation of at least EUR 367.9 million.

In dismissing Syngenta and Bayer’s cases, the Court noted in respect of the precautionary principle that where there is scientific uncertainty as to the existence or extent of risks to human health or to the environment, the principle can be invoked to take protective measures without waiting for the reality and/or seriousness of the risks to become fully apparent, or without waiting for adverse health effects to materialise.

The Court also remarked that the precautionary principle gives precedence to the protection of public health, safety and the environment over economic interests.

The unsuccessful parties have two months from the date of the decision to appeal to the ECJ on any points of law.

The EGC press release, including the particulars of the upheld ban, can be read here.


EU infringement proceedings for air quality

On 17 May the European Commission confirmed that it has referred the UK, together with France and Germany, to the European Court of Justice for failure to respect limit values for nitrogen dioxide and for failing to take appropriate measures to keep exceedences periods as short as possible.

The UK has breached the legal limit for Nitrogen Dioxide in a number of regions since the legislation came into force in 2010 and the Commission notes that, of France, Germany and the UK, the UK has the worst annual concentrations of Nitrogen Dioxide. Plans to bring the UK into line with its obligations have been overturned numerous times in the Courts, most recently in January of this year, in a series of cases taken by Client Earth.

The announcement came just days before the Government released its draft Clean Air Strategy on 22 May, to be backed up through new primary legislation which will focus on giving more powers to local authorities which could include powers to implement measures such as clean air zones. However, no reference is made to how local authorities would fund such proposals. Perhaps more critically, especially in light of the EU’s legal action, the plans do not tackle the issue of road transport and traffic in any detail, still the main source of air pollution in towns and cities and accounting for nearly half of all nitrogen dioxide emissions in the UK. This has led to Green MEP Keith Taylor describing the plan as “dangerously inadequate” and major environmental NGOs raising concerns as to how the Government intend to take the most polluting vehicles out of the most polluted areas in the country.


Environmental Protection under the EEA Agreement

The idea of the UK joining the EEA Agreement (“the Agreement”) post-Brexit has once again been recently floated, this time in the form of cautiously positive comments by the Prime Minister of Norway – the largest of the three EEA states. But what would it mean for environmental protection?

Article 73 of the Agreement sets the objectives of preserving, protecting and improving the quality of the environment, contributing towards protecting human health and ensuring a prudent and rational utilization of resources. Further, actions relating to the environment are to be based on the preventative action principle, the rectification at source principle and the polluter pays principle. Environmental protection requirements are also to be a component of other policies.

Article 73 covers much of the same ground as Article 191 TFEU, with two notable omissions. Firstly, there is no reference to ‘promoting measures at the international level to deal with regional or worldwide problems, and in particular combating climate change.’ This is perhaps because the EEA Agreement does not provide for any aspect of a common foreign policy or common representation in international bodies.

Secondly, there is no mention of the precautionary principle, although this has not prevented the EFTA Court – the EEA states’ counterpart of the Court of Justice of the European Union – from applying the precautionary principle in its case-law (see, for example, E-03/00 EFTA Surveillance Authority v Norway, judgment of 5 April 2001.)

Annex XX of the Agreement sets out the list of EU legal acts (regulations, directives, etc) relating to environmental protection that are of ‘EEA relevance’. These generally bind an EEA state as if they were an EU member-state. Annex XX is divided into five main sections (i) General (ii) Water (iii) Air (iv) Chemicals, Industrial Risk and Biotechnology and (v) Waste. Not all EU legal acts relating to the environment are included in Annex XX: the Habitat Directive, the Birds Directive and the Bathing Water Directive are considered to not be of EEA relevance.

One of the underlying issues in the Brexit negotiations is how to manage so-called ‘regulatory divergence’ – the question of what happens when either the UK or the EU changes its laws. The EEA Agreement provides an as yet underutilised option where the EEA states do not wish to ‘copy and paste’ EU legal acts into their national law. EEA states can instead agree with the European Commission that a national law is ‘equivalent’ to that of a new EU law. The House of Lords European Union Select Committee observed that it may be possible for the UK to have a carbon tax that is deemed equivalent to the EU’s Emissions Trading Scheme. Ultimately, of course, what is ‘equivalent’ is a matter for political agreement between the EEA states and the Commission.

The UK government, has, of course, ruled out EEA membership because it appears incompatible with the UK’s ‘red lines’. However, examining the environmental protections under the EEA Agreement can still provide insight into the Brexit negotiations. It demonstrates the degree of flexibility (or lack thereof) that the EU accords its closest economic partners, as well as suggesting what a ‘level playing field’ might look like.


Have you seen our International Climate Change Blog providing legal analysis of the international climate change negotiations ahead of, and beyond, the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change. Click here for the latest post – Border carbon adjustments: a solution to carbon leakage?

To keep up-to-date follow us on Twitter @6pumpcourt or click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk