Environmental Law News Update

In this latest Environmental Law News Update, Gordon Wignall and Mark Davies consider a Scottish court’s decision concerning Article 50 and the TEU, the announcement of the UN’s 2018 Climate Action Award Project Winners and an update from DEFRA on the incursion of Asian hornets into the UK.

Article 50, TEU; what is a ‘reviewable decision’?

Andy Wightman MSP v. Secretary State for Exiting the European Union [2018] CSIH 62 (21 September 2018) is a decision of the Inner House of the Court of Session (the Scottish appeal court) by which the court drafted an expedited reference to be made to the CJEU to determine “whether, when and how the notification [under TEU Article 50] can unilaterally be revoked”.

The case is also of more general interest as to the constitutional role of the courts, and specifically, in daily practice, whether or not the courts can or should make declaratory decisions advising parties as to their legal rights.

The headline of the case is the making of the reference. The more general issue is a matter of importance to those who may want to know where they stand in relation to the policies and guidance issued by regulators such as the Environment Agency and local authorities. Related considerations which bite at the commencement of judicial review proceedings, are the questions whether or not a claimant has standing, whether there is a reviewable “decision” and then whether or not a claimant is out of time in a judicial review challenge.

Mr Wightman’s application to the court for a reference to the CJEU was deemed by the judge at first instance to be purely hypothetical and a breach of the privilege specifically due to Parliament as the state’s ultimate legislative body. It was purely ‘advisory’.

The appellate court reversed the decision of the judge, its constitutional and primary role being “to declare the law as it currently exists”.

So far as Mr Wightman and members of the legislature was concerned, it was considered right that they should have the benefit of a ruling from the CJEU. This was so that they could make informed decisions as to how to act when it comes to the ratification procedures now set out in s.13 of the Withdrawal Act.

The court’s wider proposition was that any citizen at all is entitled to seek a ruling from the courts as to a declaration as to the state of the law. Rules which now restrict that right have come into existence only as practical measures which, for the most part, are resource-driven.

The corollary to this is that a claimant might now invoke a wider, general, right of access to the courts, asking the defendant to demonstrate why that right should be restricted. The merits of such a restrictive approach, the Lord President said, are “inconsistent with the modern view of on the functions of court in the public law field”.

In particular, where an act or omission might have the consequence that a regulator would commence its enforcement powers, there is now a clear argument allowing an interested party to seek, in advance, the guidance of the High Court as to the meaning of the regulation, guidance or policy in question.

UN Announces 2018 Climate Action Award Project Winners

What do a fourth-tier English football league side and women composting ceremonial flowers on the River Ganges have in common? At first blush one could be forgiven for thinking nothing whatsoever, but both have been announced as recipients of this year’s ‘Momentum for Change’ climate action award by the UN along with 13 other projects.

The Momentum for Change award is spearheaded by the UN Climate Change secretariat and is designed to showcase how ideas, different in size, scope and effect can be used to tackle climate change. Patricia Espinosa, Executive Secretary of UN Climate Change summarised it thus: “These activities shine a light on scalable climate action around the world… They are proof that climate action isn’t only possible, it’s innovative, it’s exciting and it makes a difference.”

So, what has a fourth-tier English football league side done to deserve the accolade? Well, Forest Green Rovers (whose Chairman is in fact Dale Vince, owner of the electricity company Ecotricity) has introduced many sustainability measures including solar panels, electric car charging points, an (all important) electric lawnmower and organic pitch, all of which has led to an absolute decrease in its carbon footprint of 3% since 2017 and a decrease in waste produced by the club in the 2017/18 season by 14.7%, as well as other environmental benefits. Given the staggering excesses of the modern-day beautiful game, you might feel it refreshing to see a club approaching its environmental responsibilities in this way.

At perhaps the other end of the spectrum in terms of wealth underpinning a climate change scheme but, as the award recognises, no less importantly, we have the HelpUsGreen ‘flowercycling’ scheme which aims to clean up the River Ganges by recycling flowers from temples and mosques. With an estimate of over eight million tonnes of flowers discarded into the river every year for religious purposes, the scheme has provided a solution whereby the waste is up-cycled to produce organic fertilisers, natural incense and biodegradable packaging. The 11,060 metric tonnes of waste up-cycled thus far has offset 110 metric tonnes of chemical pesticides that enter the river through the waste in the first place.

These schemes, and the 13 other projects, (which include sustainability focused investment schemes, food sharing projects and mangrove replantation and preservation) are laudable examples of the innovation that will surely be needed across the world to combat climate change in the years to come.

The full list of winners may be viewed here

An Environmental Law News public service announcement

Our final story this week relates to DEFRA’s update of 28 September 2019 on the incursion of Asian hornets into the UK.

The species, which is not native to the UK, is smaller than our native hornet. Whilst it poses no greater risk to human health than our native species, it does pose a risk to honey bees and other pollinating insects and therefore the Department is encouraging suspected sightings to be reported. The Department is therefore encouraging suspected sightings to be reported. Once a report is confirmed, experts from the National Bee Unit (yes, it’s a real thing) and the Animal and Plant Health Agency will, ‘work quickly to find and destroy any active nests in the area’, which all sounds terribly efficient.

To date DEFRA records nine confirmed sightings of the Asian hornet in England with five nests having been destroyed. Sightings in 2018 have ranged from Lancashire and Hull down to Hampshire and Cornwall.

So, how does one spot an Asian hornet? They have:

• A dark brown or black velvety body
• A yellow or orange band on the fourth segment of their abdomen
• Yellow tipped legs

They are also smaller than the native European hornet and are not active at night.

Now, what to do if you think you’ve spotted one? Quite simply, as with everything in this day and age, there’s an App for that (again, yes, it’s a real thing).

Full details on the App and full guidance on identifying Asian hornets may be found here, including specific steps for anyone who keeps bees.

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