Environmental Law News Update

In this latest Environmental Law News Update, Gordon Wignall, William Upton and Christopher Badger consider environmental protections contained in the Draft Brexit Agreement, an independent review into the current system of waste regulation, and further requests to the ECJ for guidance on the Habitats Directive.

Environmental protections in the Draft Brexit Agreement

It may never be agreed by Parliament, but the Draft Brexit Agreement contains some relevant provisions on environmental protection as part of the back stop agreement if the Irish border issue isn’t agreed at the end of the transition period. If nothing else, the text is likely to help identify the EU’s minimum acceptable position moving forward to a future trading relationship. Relevant parts of the draft agreement are summarised in italics.

• Non-regression in the level of environmental protection – page 356

The EU and the UK shall ensure that the level of environmental protection provided by law, regulations and practices is not reduced below the level provided by the common standards applicable within the EU and the UK at the end of the transition period.

The agreement then sets out a number of key environmental areas where standards are to be maintained, including for example waste management, air emissions, chemicals and climate change. The key question is how is it proposed that environmental protections will not regress. The text of the draft agreement places great emphasis on the effectiveness of the new independent environmental watchdog. However, the overarching system of dispute resolution may still have an important role to play.

Article 174 of the draft agreement states that where a dispute relating to this agreement raises a question of interpretation of a concept of EU law that cannot be resolved by the Joint Committee and consequently becomes an issue for arbitration, the arbitration panel has no power to resolve the issue of interpretation and a request must be made to the CJEU to give a ruling on the question, which is subsequently binding.

Key to the UK’s independent watchdog is the creation of a statement of policy that is intended to define and shape the interpretation of specific environmental principles that are enshrined in the Withdrawal Act 2018, all of which are EU principles. It was intended that this policy statement would interpret the relevant principles in s.16 of that Act. Some, but not all, of the relevant principles are set out in the draft agreement (page 357):

The EU and the UK shall respect the following principles in their respective environmental legislation:

(a) The precautionary principle;
(b) The principle that preventative action should be taken;
(c) The principle that environmental damage should as a priority be rectified at source; and
(d) The “polluter pays” principle.

There is no reference here to a principle of sustainable development, nor whether environmental protection requirements should be integrated into the definition of and interpretation of policies and activities, nor public participation in environmental decision-making. Public access to environmental information and access to justice in relation to environmental matters are also not referred to, although these are both key environmental areas where equivalence (set out above) must be maintained.

Therefore on the face of the draft agreement, even if the UK government would like to be able to shape important environmental tenets independently of the established EU interpretation, there appears to be scope for arguing that Article 174 provides for disputes over the interpretation of these European concepts of environmental protection to be referred to the CJEU for a binding judgment on their interpretation. The next relevant issue is who may make such a referral, discussed below.

• Monitoring and enforcement related to environmental protection – page 359

The UK shall ensure that administrative and judicial proceedings are available in order to permit effective and timely action by public authorities and members of the public against violations of its laws, ensuring that sanctions are effective, proportionate and dissuasive and have a real and deterrent effect.

The UK shall implement a transparent system for the effective domestic monitoring, reporting, oversight and enforcement of its obligations … by an independent and adequately resourced body or bodies (“the independent body”).

The independent body shall have powers to conduct inquiries on its own initiative concerning alleged breaches by public bodies and authorities of the UK and to receive complaints for the purposes of conducting such inquiries. It shall have all powers necessary to carry out its functions, including the power to request information. The independent body shall have the right to bring a legal action before a competent court or tribunal in the UK in an appropriate judicial procedure, with a view to seeking an adequate remedy.

“Obligations”, read together with the requirement of equivalence to apply to environmental protection provided by “law, regulations and practices” ought therefore to extend beyond mere compliance with the letter of the law but also examine the manner in which laws are brought into practice and how they work in practice. This would be consistent with the current approach of the EU. Otherwise, if the “breaches” referred to are limited solely to violations of the law, this has the potential to leave a considerable UK governance gap.

Adopting the approach of the first half of this analysis, the independent body is arguably required to ensure that the principles of environmental protection that govern its remit are interpreted consistently with any relevant European interpretation. However, it is not proposed as part of this draft agreement that the independent body will have the power to refer any question of interpretation to the CJEU. This raises an important issue over the potential duality of the draft agreement.

The argument runs that any divergence in environmental protection will provide grounds for the EU to first raise the issue with a Joint Committee and failing resolution, seek arbitration knowing that any issue of interpretation of a concept of environmental protection to which the EU seeks ownership will be referred to the CJEU, irrespective of any considered opinion of the independent watchdog. The net result is the establishment of a dual regulatory approach to the domestic implementation of environmental obligations.

Independent [sc. DEFRA?] Review into Serious and Organised Crime: Proposals for Legislative Change (November 2018)

The current system of waste regulation is entirely broken and therefore needs radical reform, otherwise there will be even more planning, coordination and commission of serious and organised crime: waste crime is the “new narcotics”.

This is the message which is surely intended to be taken away by readers of this “independent review”.

Given its mysterious authorship, hinting at a predominantly DEFRA team, and the foreword’s conclusion, we should take it seriously: the foreword ends with the pointed observation that its recommendations should be available for the forthcoming Resources and Waste Strategy and the Environment Bill.

Anyone interested in waste regulation should give this short but impressive document a careful read.

The “independent report” is particularly interesting on the failure to consolidate current organised crime within existing intelligence structures (the national Government Agency Intelligence Network and the ten Regional Organised Crime Units), the EA’s lack of a strategic threat assessment (compared with other agencies) and the tension between the National Enforcement Service and local area teams.

The authors tell us that there is poor partnership between the EA and other agencies, including Police and Crime Commissioners, slow reaction times and a reluctance to share intelligence or to disclose information. There are other more effective models for dealing with crime, for instance the National Wildlife Crime Unit and the National Food Crime Unit.

A Joint Unit for Waste Crime (“JUWC”) should be established within the EA, to include staff from the National Police Chiefs’ Council and HMRC (as to which, think of fraud and landfill tax offences).

The EA should have wider investigatory powers than the archaic powers which currently exist (such as s.108, EPA 1995) and greater RIPA-style powers. The new JUWC should have access to the Police National Database and Police National Computer, and then to the new Law Enforcement Database.

There are great opportunities for organised waste crime: permit exemptions, the weak regulation of carriers, brokers and dealers, the ease of misdescribing waste through paper-based waste transfer note system (construction waste being highlighted) and altogether a lack of transparency.

Waste producers should be held accountable for the end destination of their waste products, including a requirement that they contribute to the clean-up costs of illegally deposited waste. This development, to be brought about perhaps by changes in the duty of care regime, would be very welcome news to innocent landowner-victims.

The document refers to the “sale of permits”. Permit charges currently only fund the regulation of those being billed, but this proposal would have an increase in permit charges of between 5% and 50% to fund waste crime enforcement. A “voluntary” levy is also suggested. These would be significant changes.

It is clear that the authors are familiar with a markets-based approach to regulation. The publication can be said to have a propensity in favour of the very large industry operators.

If the recommendations are implemented together, then a great deal of very hard work will have to be done to ensure that new entrants can join the industry, that SMEs are not squeezed out and that the larger players can be subject to competitive pressures. Consumers do not want a state-enabled oligopoly, one consequence of which would only be more waste crime as more producers find ways to avoid regulation.

It is worth adding that it is odd that this should be described as an “independent report”. Independent by what measure? The Chair of the serious and organised waste crime review is identified (a non-executive board member of DEFRA and a former non-executive board member of MoJ). The biographies of three advisory panel members are provided.

But who were the individuals who put the document together (apparently in a few weeks), and who instigated its production?

It would be shame if the admirable hard work which has been done and the report’s recommendations should be promoted as an entirely “independent” piece of work (and therefore a work of unusually significant weight) when the Environment Bill is drafted.

On the face of it, this is a DEFRA unofficial in-house shopping list, despite the fact that it is expressly stated that it is not a statement of Government policy (if you search hard enough).

If the “independent report” is not a statement of intended policy (it does not bear any DEFRA logo or attribution), then the “independent report” should clearly identify the members of its “review panel” and all who materially contributed to its contents.

The report can be found here

Habitats and EIA Reminder

For the third time this year, the Irish courts have asked the European Court of Justice for guidance on the Habitats Directive, this time in a case brought to challenge the adequacy of the Appropriate Assessment of the likely impact of a bypass: Holohan and others v An Bord Pleanála Case C-461/17 [2018] given on 7 November 2018.

This has a direct relevance for the UK Regulations as well, and the standard of information that has to be provided. This is an area where the broad scope of the science drives the legal requirements. The decision maker has to carry out its own Appropriate Assessment of the project and give adequate reasons for its conclusions. The conundrum has always been that the developer has to prove a negative – to satisfy the decision maker that the project will not adversely affect the integrity of the European Site -, and has to do this to a standard where there is no reasonable scientific doubt left about those likely effects. It is difficult to know where to draw the line. We are beginning to be given a judicial checklist. We are told that all the habitats and species for which the site is protected must be catalogued, although it may be sufficient to establish that only some of them are present in the area affected. The Assessment must identify and examine the implications of the project for all the species present on that site, including those not listed in the designation, and the implications for all habitat types and species to be found outside the boundaries of that site – if they are likely to affect the ‘conservation objectives’ of the site. Where the decision maker rejects the findings in a scientific expert opinion that further information is still required, the appropriate assessment must include “an explicit and detailed statement of reasons capable of dispelling all reasonable scientific doubt concerning the effects of the work envisaged on the site concerned”. Indeed, the assessment “may not have lacunae and must contain complete, precise and definitive findings and conclusions capable of dispelling all reasonable scientific doubt as to the effects of the proposed works on the protected area concerned” (judgment in the earlier case of 25 July 2018, Grace and Sweetman, C-164/17). These are some difficult standards to satisfy.

There is also a sting with regard to Environmental Impact Assessment. The Court in Holohan held that the developer will have to supply information that expressly addresses the significant effects of its project on all species identified in the Environmental Statement – and not just those that are protected species. The developer must also explain all the main alternatives that have been studied, and their environmental effects “even if such an alternative was rejected at an early stage”. This is more ammunition to add to the long line of court challenges.

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