Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and William Upton consider the issues of marinas on the River Thames, pressure for an International Court for the Environment, and the possible impact of Brexit on “environmental dumping” in the UK.

High Court considers marinas to be part of the Thames

In Environment Agency v Paul Barrass and others [2017] EWHC 548 (Admin) heard on 21 March, the High Court decided the controversial question of whether or not marinas – essentially man-made areas for mooring small boats and siting houseboats – form part of the River Thames.

The question is controversial because a positive answer would result in the owners of vessels kept in the marina, including houseboats, qualifying for a registration fee, payable to the Environment Agency, under the Environment Agency (Inland Waterways) Order 2010. Some owners of houseboats in the relevant marinas object to paying this fee, in addition to paying Council Tax, due in part to the fact that the houseboats are permanently moored and consequently derive no benefit from having to pay the EA for its role in protecting the public right of navigation down the River.

As a matter of construction the High Court held that the marinas in question are in fact part of the Thames. The judgment is unlikely to form part of any Easter holiday reading list but it does finally put to bed an issue that has been the subject of much debate in the last 7 years.

Call for an International Court for the Environment

Stephen Hockman QC gave a lecture on 29 March at Middle Temple Library promoting the concept of an international court for the environment, either in the form of an independent tribunal set up by treaty or as an extension of the current International Court of Justice. The fundamental premise was that, as an international issue, protection of the environment requires a supra-national body capable of establishing the legal principles by which governments and organisations can be held to account by way of civil remedy, and by which the justification for their actions can be defined.

The lecture raised a number of interesting issues for debate including:

1. Does the general trend of anti-globalism currently sweeping the UK and the US demonstrate the key difficulty of establishing a new supra-national authority;
2. Does the current focus on permitting emissions through the use of a trading scheme have the effect of legitimising pollution of the environment, rather than appropriately sanctioning pollution in a manner that might be enforced through the development of the “ICE”; and
3. Does the fact that no mention is made of “development” hinder the prospect an “ICE” gaining any traction in developing countries.

A copy of the lecture can be found here. Any thoughts gratefully received.

Brexit and “environmental dumping”

The UK Government has published a White Paper the day after the Article 50 letter was delivered (“Legislating for the United Kingdom’s withdrawal from the European Union” (Cm 9446, March 2017)). Having lauded the tangible environmental benefits that national, European and international law has delivered, it states:

“The Great Repeal Bill will ensure that the whole body of existing EU environmental law continues to have effect in UK law. This will provide businesses and stakeholders with maximum certainty as we leave the EU. We will then have the opportunity, over time, to ensure our legislative framework is outcome driven and delivers on our overall commitment to improve the environment within a generation. The Government recognises the need to consult on future changes to the regulatory frameworks, including through parliamentary scrutiny.”

The emphasis in the future on an “outcome driven” framework for the UK will be a departure from the process-driven approach of much European law. It also begs the question about how far the European Union will allow that to distort what they see as fair competition.

At this stage, the message from the President of the European Council in his “Draft guidelines following the United Kingdom’s notification under Article 50 TEU” (31 March 2017; ref XT 21001/17), is still broad-brush and about the principles. The draft of the Guidelines only mention the environment in passing. But it looks like the debates that we have had in the past about the relationship between national regulation and European competition rules may be about to recur. The draft will be considered at the European Council’s meeting on 29 April. The President has suggested that the Council’s response to the British government’s indication that it would like to pursue an ambitious free trade agreement with the European Union is to state that “it stands ready to initiate work towards such an agreement, to be finalised and concluded once the United Kingdom is no longer a Member State”. He has also suggested that they should state that:

“19. Any free trade agreement should be balanced, ambitious and wide-ranging. It cannot, however, amount to participation in the Single Market or parts thereof, as this would undermine its integrity and proper functioning. It must ensure a level playing field in terms of competition and state aid, and must encompass safeguards against unfair competitive advantages through, inter alia, fiscal, social and environmental dumping.”

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Please note – the next Environmental Law News Update will be published on Tuesday 18th April. 

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