Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Antony Bartholomeusz consider the Environment Agency’s response to the DEFRA consultation on environmental regulation after Brexit, an ECJ case concerning the interpretation of Article 6 of the Habitats Directive, and the continuing challenge obtaining authoritative end-of-waste guidance for the purposes of the Waste Framework Directive.

Environment Agency publishes response to DEFRA consultation on Environmental Principles and Governance after the UK leaves the European Union

The deadline has now passed for responses to be filed to DEFRA’s consultation on Environmental Principles and Governance after the UK leave the European Union, the results of which have the potential to definitively shape the future of environmental law in the UK for a generation.

The Environment Agency has published its response to the consultation. In it it states:

• It agrees that the suite of principles set out in the Withdrawal Act 2018 are the correct principles;
• It agrees with the suggestion of a statement of policy, but adds that, as it will be important to show that the environmental principles continue to have a real influence on the development of environmental policy and legislation, its subsequent interpretation in caselaw and to deliver important environmental outcomes, a further principle of high environmental protection could be added;
• A non-regression clause should be included in the Bill;
• That the Government should be required to publish appropriate reports, to reflect the EC’s role on reporting on the implementation of EU environmental law;
• The EA supports the establishment of a new independent environmental body which should be able to scrutinise, advise and report on the delivery of key environmental policies, including the 25 Year Environmental Plan;
• That the 25 Year Environmental Plan should be placed on a statutory footing, with progress reports similar to the architecture for carbon budgets and the National Adaptation Programme under the Climate Change Act;
• That the new body should be able to respond to material public complaints;
• That judicial review of the Government should be open to the new environmental body.

It is also of note that the Environment Agency state that “holding the national government to account is the right scope for the new body”. It refers to the fact that the Environment Agency is held to account by, amongst others, its sponsoring department DEFRA. This raises an interesting constitutional question. It is arguable that the new independent environmental body will not be truly independent of Government unless it is wholly accountable to and funded by Parliament, not by a sponsoring department of the Government. There is precedent – the National Audit Office, for example, had no sponsoring Government department.

It is no surprise to find that the response to the consultation states that, in its view, the new body should not replace or duplicate the roles of other existing bodies, including the Environment Agency.

The Environment Agency’s response can be found here

Case C-164/17 Grace and Sweetman

The Court of Justice of the European Union recently gave judgment in Case C-164/17 Grace and Sweetman v An Bord Pleanála concerning the interpretation of Article 6 of the Habitats Directive 92/43/EC, asking whether measures taken to mitigate the impact of a proposal on a protected species can be taken into account when assessing whether the proposal adversely affects the integrity of a special area of conservation.

The interested parties proposed to build a wind farm in a specially protected area (SPA) that is the natural habitat for the hen harrier – a species protected by Annex I of the Birds Directive 2009/147/EC. The hen harrier forages in open-canopy forest. As a result, the areas of the SPA in which the trees have matured to the point where there is a closed-canopy are felled and replanted. This is done in stages with the aim of maintaining a similar amount of open-canopy forest within the SPA. Accordingly, the parts of the SPA that are suitable habitat for hen harriers changes over time.

The proposal included a species and habitat management plan (‘the mitigation plan’) to address the effects of the wind farm on the hen harrier’s foraging habitat by ensuring that the amount of open-canopy forest remains the same as at present. Other measures included the restoration of planted areas adjacent to wind turbines to blanket bog, which is also a suitable habitat for hen harriers. Also, construction works would be scheduled to take place outside the hen harrier’s breeding season. It was claimed that the consequence of this plan was that the amount of the site suitable as habitat would not be reduced and may even be enhanced.

Article 7 of the Habitats Directive requires the procedure in Article 6 of that Directive to be followed in respect of proposed developments affecting SPAs under the Birds Directive. Article 6 sets out a two-stage procedure. Firstly, Article 6(3) provides that any plan that might have a significant effect on a special area of conservation must be assessed. The competent authorities may only agree to the plan only after having ascertained that it will not adversely affect the integrity of the site concerned. Secondly, Article 6(4) provides a derogation from Article 6(3) where a plan must be carried out “for imperative reasons of overriding public interest, including those of a social or economic nature”. In such cases, the member-state is obliged to take ‘compensatory measures’ and notify these to the European Commission.

An Bord Pleanála, Ireland’s competent authority, approved the proposal under Article 6(3) on the basis that it would not adversely affect the integrity of the SPA. Ms Grace and Mr Sweetman brought a judicial review challenging this decision. The Supreme Court of Ireland made a reference to the CJEU under Article 267 TFEU, asking whether the mitigation plan could be taken into account when assessing the proposal under Article 6(3) (the view of An Bord), or whether it was in fact a ‘compensatory measure’ under Article 6(4) (the view of Ms Grace and Mr Sweetman.)

The Court of Justice sided with Ms Grace and Mr Sweetman and declared that the mitigation plan could only be taken into account under Article 6(4). The Court noted that some parts of the SPA would no longer provide a suitable habitat for the hen harrier. The Court questioned whether there was sufficient certainty that the mitigation plan would achieve its objectives. It would only be permissible for a mitigation strategy to be taken into account under Article 6(3) if the effects of the mitigation strategy could be foreseen with a high degree of certainty. The Court supported this approach by reference to the precautionary principle. Interestingly, the Court opined on the factual issue as to the degree of certainty as to the effect of the mitigation plan: in Article 267 proceedings, this is usually understood to be the task of the national court. In effect, the Court appeared to adopt a starting point that the effect of measures taken to create a new habitat are highly difficult to forecast. While the Court did not absolutely close the door to considering mitigation under Article 6(3), it is clear that the bar to doing so is very high indeed.

Waste: Will it Never End? And How Do We Know When it Does?

The “end of waste” would be a wonderful thing if ever it could be achieved. The more technical and circumscribed concept of “end of waste” for the purposes of the Waste Framework Directive has proved almost as elusive. In the wake of the Environment Agency’s recent resurrection of its Definition of Waste Panel (see our recent blog item) comes a decision of the Administrative Court on the subject, spawned of the original panel’s final decision and quite possibly instrumental in its renaissance. In R (Protreat Ltd.) v Environment Agency [2018] EWHC 1983 (Admin) Sir Wyn Williams considered a number of questions arising out of the activity of re-refining of waste oil for non-fuel purposes and the EA’s refusal to produce guidance as to whether the end product had ceased to be waste, leaving operators uncertain as to the regulatory environment within which they were operating. The judge held that the EA was not under any Directive duty to provide end-of-waste guidance in relation to the products of re-refining of oil (or indeed more generally) nor otherwise in breach of the Directive in its approach to regulation of the sector.

The judgment contains a very careful consideration of the proper application of the waste hierarchy in article 4 of the Directive and its inter-relationship with the requirement of delivery of the “best overall environmental outcome”. The judge held that this entitled a decision-maker to have regard to the costs of differing options – were that not so, one might scarcely ever be able to look below the highest-ranking option (prevention) and application of the hierarchy would become impracticable. Article 4 is to be construed ‘flexibly’ and consistently with the aim and scope of the Directive set out in Article 1. “It cannot be the case that whatever the circumstances a breach of the Article occurs if the hierarchy is not applied strictly in accordance with the descending order of priorities.”

The case is also of interest for its consideration of the extent to which an emanation of the state such as the EA is directly bound by the requirements of a Directive. The judge held that this was so only to the extent that such a body was exercising the functions conferred upon it by Parliament. Thus, by way of obvious illustration, no complaint could be made that the EA had not passed appropriate domestic legislation since it had no power to do so. Further, and of the most general application, “an obligation on the part of a public authority to produce guidance as to how it will operate in a particular context arises, rarely, if at all”.

It is interesting to speculate whether this litigation and the problems to industry which it highlighted were instrumental in the voluntary reintroduction by the EA of the Definition of Waste Panel. It plainly has a useful (if perhaps also thankless and endless) task to perform and its return is welcome.

The claimant was represented by Six Pump Court’s Gordon Wignall, led by Robert McCracken QC.

We published July’s Environmental Law Podcast last week – a monthly round-up of the latest developments in environmental law.