In this latest Environmental Law News Update, Gordon Wignall, Natasha Hausdorff and William McBarnett consider the environmental implications of the UK/EU Withdrawal Agreement, the impact of climate change on flood claims, and a new consultation on the offshore civil sanctions regime.
The Environmental Implications of the UK/EU Agreement
Two documents were recently published by the Government: the Political Declaration Setting Out the Framework for the Future Relationship Between the European Union and United Kingdom (the “Political Declaration”) and the Draft Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (the “Withdrawal Agreement”) which is intended to accompany it. The aim of both is to set out a new partnership which is ambitious in scope, the parties also expressing a commitment to maintaining high levels of cooperation with regard to environmental matters whilst maintaining their decision-making autonomy.
Those searching for concrete commitments to maintain particular environmental standards will be disappointed. The Political Declaration sketches out a deliberately vague picture of what UK/EU relations should look like in the future and the Withdrawal Agreement provides little more beyond outlining a commitment to non-regression and stating that the environmental principles which currently apply to EU law shall continue to find expression in post-Brexit legislation.
Key points that arise from the Political Declaration are:
- The Parties will retain their autonomy and the ability to regulate economic activity according to levels of protection each deems appropriate in order to achieve legitimate public policy objectives, including the environment. Whilst the economic partnership will recognise that sustainable development is an overarching objective of the Parties, this does not go as far as to commit the UK to mirroring EU environmental standards.
- The future relationship must ensure open and fair competition. This will include provisions on environmental standards, to build on the “level playing field” provided for in the Withdrawal Agreement. The Political Declaration implies that market access for goods will be closely linked to deep “regulatory and customs cooperation”.
- The Parties will explore the possibility of cooperation of UK authorities with Union agencies such as the European Chemicals Agency. This, however, doesn’t remove the need for a UK REACH system.
There are, however, several things that may be said in response to concerns that Brexit could be used to dilute or row back on current environmental standards. Firstly, the Government has committed to setting up an independent, Commission-like body which will have the power to take the Government to court. Secondly, s.16 of the Withdrawal Act 2018 commits the Government to a Bill consisting of, amongst other things, a series of environmental principles, the application and interpretation of which will be embodied in a statement of policy. Thirdly, under the Withdrawal Act 2018, ministers will gain a ‘correcting power’ to make statutory instruments to prevent, remedy or mitigate any ‘failure of’ or ‘deficiency in’ retained EU law. Fourthly, the Government has committed to upholding high environmental standards in relation to the signing of future trade deals.
Flood claims and climate change
Judgments from courts in specialist areas which do not decide points of principle are a publisher’s dream, but they are also the bane of what are known as ‘superior courts of record’ and are generally to be avoided.
However, all cases have to start somewhere, even if they are about snails in ginger beer bottles, and flooding cases are no different.
Legal doctrines concerning flooding are well known (to those who know them). A higher owner of land has no general duty to protect a downstream owner. Natural rainwater is a common enemy, and an upstream owner can protect its land, even though that may mean causing damage downstream.
These principles go back to the 1849 case of Smith v. Kenrick, in which the owner of the higher coal mine worked his mine knowing that he would release a subterranean lake which would flood and ruin the lower owner’s workings.
These principles sounding in nuisance, nothing of any real significance changed until Leakey v. National Trust  1 QB 485, when the Court of Appeal recognised the existence of a general ‘measured duty of care’, a duty limited in its scope (because a higher owner does not bring natural rainwater on to its land) and always subject to the defendant’s knowledge of the existence of the hazard and to the recognition that it must “fair, just and reasonable” to impose the duty (post Caparo v. Dickman).
The interchange between the old principle and the ‘Leakey’ duty has not been much worked out, possibly because no claimant with common sense and without a reasonable budget would even think about commencing a flooding claim without an expensive expert to comment on (and model) whether or not the flood event would have occurred in any event.
But what is the impact of climate of change, both on foreseeability and the extent of the duty?
A glimpse of these contemporary issues was had in the Northampton County Court recently, when an impressive array of experts was lined up, including one from HR Wallingford and WRc (Andy Drinkwater, aka “the Wet Wipes King”).
The chief issues for the judge were whether there had been an ‘escape’ from the weir at a large quarry upstream of the Claimant’s property during a flash flood in June 2012, and whether the quarry had any duty to protect the downstream landowner from rainfall which fell into, over and out of the quarry floor, some of it from the public highway via the works’ railway line.
Surprisingly, there has been a certain amount of climate change litigation recently (or rather of contemplated litigation) about water which has been released over a reservoir dam or lagoon weir. Generally, such a discharge of water should be seen as a controlled ‘escape’ designed to protect the reservoir or lagoon, and not evidence of an ‘escape’ falling within the principle of Rylands v. Fletcher.
Of much more interest, however, in this case, was the experts’ unscripted discussions about engineering standards for new builds and new housing developments.
If extreme flood events have become more common because what was a 1 in 50 year event is now to be seen as a 1 in 20 year event flood (say), then how does this affect foreseeability? If new claimant developments are to be built according to contemporary resilience standards, then how might this affect the extent of the duty of care – should one be imposed at all? What is the extent (or scope) of the ‘measured duty of care’ in such circumstances? And how are these factors to be assessed when times are so uncertain, with the result that what may be a 1 in 20 year storm event should, within five years, be considered a 1 in 10 year event?
Then there is the question as to how these issues should play out for pre-existing developments, given that in general a Court is interested in all the relevant factors taken into consideration together when assessing liability.
Fortunately for the trial judge in Northampton, she was not required to produce a judgment based on these detailed matters of opinion evidence. But the reflections of these able experts during their cross-examination at the hearing were a sign of the type of issues with which practitioners are likely to have to become much more familiar in future flood claims.
Consultation on Offshore Civil Sanctions launched
The Department for Business, Energy and Industrial Strategy (“BEIS”) and the Offshore Petroleum Regulator for Environment and Decommissioning (“OPRED”) have launched a consultation on the draft guidance to accompany the Offshore Environmental Civil Sanctions Regulations 2018 (“OECSR”).
The OESCR came into force on 1 October 2018 and allow OPRED to apply civil sanctions ranging from £500 to £50,000 for breaches of existing environmental legislation. No changes have been made to the existing criminal offences, nor have any additional offences been created, rather the Secretary of State has exercised existing powers, to provide for civil sanctions. This allows for the imposition of both fixed and variable financial penalties. The draft guidance that seeks (i) to explain the mechanics of OECSR, and (ii) to clarify how OPRED will apply the new financial civil sanctions on or after the 1 November 2018. The guidance annex includes a table outlining offences and the applicable civil penalties.
The OESCR relates to offshore platforms engaged in hydrocarbon-related activities, impacting the offshore oil and gas industry operating on the UK Continental Shelf or in relevant UK territorial waters. Under the new sanctions regime, alternative enforcement mechanisms in the form of Non-Compliance Penalties, Fixed Monetary Penalties, Variable Monetary Penalties or Variable Monetary Penalty Undertakings are available. These resemble the ‘Enforcement Undertakings’ utilised by other regulators, which readers will be familiar with.
According to the draft guidance, where the OPRED is satisfied that there is sufficient evidence to prove beyond reasonable doubt that an offence giving rise to a civil sanction has occurred, it will consider the proper sanction in light of (i) proportionality, (ii) targeting, (iii) consistency of approach, (iv) transparency, and (v) accountability. The OPRED will then consider each individual case against public interest factors including (i) intent, (ii) foreseeability, (iii) environmental impact, (iv) nature of the offence, (v) financial Implications, (vi) deterrent effect, (vii) previous history, and (viii) attitude of the offender.
The consultation poses questions relating to the approach and process for the OPRED to establish liability and fix the appropriate civil sanction and the information provided on the right to appeal and is open until open until 18 December 2018 click here.
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