Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger considers the consequences of failure to comply with a Remediation Order, the rejection of DEFRA’s application to delay consulting on its revised air quality plan and a plea to extend the EU emissions trading scheme for the UK after Brexit.

Suspended prison sentence for failing to comply with a Remediation Order

David Crossley Cooke was sentenced to 9-months imprisonment, suspended for 12 months, for his part in failing to comply with a Remediation Order imposed by Oxford Crown Court back in September 2015. The subject of the Order, a land owning company controlled by David Crossley Cooke called Tapecrown Ltd, was ordered to pay a fine and costs totalling £49,000 for contempt of court while Mahomed Farouk Ismail, the sole director of the company on Companies House register but in reality the company’s accountant with no managerial role, was also fined and ordered to pay costs.

The company had not only failed to clear waste from its site at Faringdon Business Park, Chowle, in compliance with the Remediation Order but had also provided false waste transfer notes as part of an effort to dupe the Environment Agency and the Court into believing that waste had been taken to an appropriately licensed facility.

Regulation 44 of the Environmental Permitting (England and Wales) Regulations 2010 (the power to impose a Remediation Order) has no provision for what should happen to the recipient (or its controlling mind) if the Order is not complied with. In a case where waste is left on land in breach of the Remediation Order, it would be open to the Environment Agency to bring further criminal proceedings or alternatively to pursue contempt proceedings for the breach. In this case, the Environment Agency chose to pursue contempt.

A further interesting factor was that the Court directed a third party company to clear the waste that remained on site in breach of the Remediation Order, rather than relying on Tapecrown Ltd. The costs of the clearance are then to be recharged back to Tapecrown Ltd. Failure to pay the costs, as assessed by the Court, are likely to be another breach of a court order and result in the bill being enforceable as a civil debt.

ClientEarth wins again on air quality

DEFRA must start consulting on its revised air quality plan within the next 12 days after the High Court rejected its application to defer publication of the draft and final documents by six weeks on the grounds that it was a “significant threat” to public health.

Mr Justice Garnham stated that “purdah” in the run up to a general election was “not a trump card to be deployed at will”. Cabinet Office guidance allows for consultations to be published during purdah in exceptional circumstances such as public health emergencies. The Government had attempted to use the fact of the general election as a justification for the delay, arguing that publication of the draft would be seen as controversial, would breach civil service neutrality and there was a risk that the draft plan could be labelled a Tory plan.

The government’s own figures showed that nitrogen dioxide pollution, primarily from diesel traffic, is linked to the premature death of 23,500 people a year in the UK, more than 64 deaths each day. The Judge held that immediate publication was “essential”.

Plea to extend the EU ETS scheme

The International Emissions Trading Association (IETA) has written a letter to the Government requesting that the UK should continue to participate in the EU emissions trading scheme until at least 2020.

Many companies, particularly those in the power sector, buy up to two or three years of allowances in advance in order to hedge their compliance costs. There is a significant risk to business, as well as considerable uncertainty, if the UK were to abruptly exit the EU ETS before phase 3 ends in 2020. The IETA has warned that there is not enough time to establish parallel arrangements in the UK.

Brexit potentially provides a significant opportunity to reassess and revisit huge swathes of environmental policy and law. However, the Great Repeal Bill is by its nature a temporary arrangement and not the appropriate mechanism for evaluating and implementing the UK’s approach to environmental regulation. The importance of trying to ensure, so far as possible, medium-term stability and confidence in the environmental sector through the avoidance of legislative gaps and uncertainties in environmental protection is becoming increasingly self-evident.

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