Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and William Upton consider a new waste crime report published by the Environmental Services Association, a ruling by the European Court of Justice which found the UK guilty of a breach of clean water law, and an interpretative communication issued by the European Commission on access to justice in environmental matters.

Waste crime report published

On 2 May the trade association for the UK’s Resource & Waste Management Industry, the Environmental Services Association, and the Environmental Services Association Education Trust published ‘Rethinking Waste Crime’. This report is a follow up to its influential report ‘Waste crime: Tackling Britain’s dirty secret’ published in March 2014.

The report identifies the extent to which waste crime remains an enormously serious issue. It states that whilst awareness of waste crime has increased, the regulators’ ability to combat it has not kept pace and the increased gains from illegal activity are attracting criminals. It is estimated that the annual economic impact of waste crime in England in 2015 was at least £604 million (a figure that cannot include unknown impacts such as undiscovered illegal sites or fraud beyond landfill tax evasion).

The authors of the report, the environmental consultancy Eunomia, make the point that whilst light-touch approach might appear to be business-friendly, the irony is that this is actually harming the interests of legitimate waste businesses while giving criminals an easy ride.

The report stresses that weak regulation is a major cause of waste crime, and organises its recommendations into the following themes:

• Modernising the regulatory regime;
• Improving enforcement efforts;
• Developing secure sources of environment funding; and
• Improving cross-regulatory cooperation and raising awareness.

In total, 14 recommendations are made. These include reforming the waste exemption regime, where the report argues that too few checks and balances exist to ensure that the activities being undertaken are actually low risk, enforcing failures in the duty of care and banning waste criminals from re-entering the waste sector.

A link to the report can be found here

European Court finds UK guilty of breaching clean water law

The UK has been found to be in breach of EU law (Case C‑502/15) about the treatment of sewage and urban waste water discharged in a number of areas. This is, in effect, a series of 13 declarations – ranging from the failure to subject the urban waste water in the Gibraltar agglomeration to any treatment by 2005 to requiring more stringent treatment for the discharges from Tiverton or Chelmsford into sensitive areas. One breach that gained particular attention was the one in Carmarthenshire. Overflow pipes are used to help stop flooding at the Burry Inlet near Llanelli. However, the ECJ ruled that this broke clean water laws in a special conservation area. The area includes salt marshes and is a habitat for thousands of wild birds during the winter. It should be noted that back in September 2009, the National Assembly for Wales was presented with a petition calling for a public inquiry into mass cockle mortalities at the Burry Inlet. A further report was published by the Petitions Committee for the National Assembly for Wales in July 2012.

The UK wasn’t fined but was ordered to pay legal costs. Part of the complaint is the amount of time that not only has been taken so far, but also how much more time was proposed to be taken to resolve the issue. The UK had argued that improvements made would mean that it could comply with EU clean water laws by 2020. However, the European Court found that the UK had acted too late and had been failing in its obligations since 2005 – not the first time that the necessary investment to improve environmental impact has taken too long.

European Commission Notice on Access to Justice in Environmental Matters

The European Commission has added its authoritative comments to the debate about access to justice in the light of the Aarhus Convention. As keen readers will remember, the UK changed its court rules on Aarhus Convention Cases (CPR 45.41 etc), and several NGOs have already been given permission to proceed by the Planning Court to challenge this by way of judicial review.

We now have what the Commission calls an “Interpretative Communication” which sets out in one place all the substantial existing CJEU case-law, on access to justice in environmental matters, and the inferences that they say should be drawn from them. The Communication intends this document to be a reliable source for national administrations responsible for ensuring the correct application of EU environmental law, national courts and the public. The Commission accepts that there is still no appetite in the EU Council for any specific legal instrument dedicated to access to justice. It has therefore tried to give a heavy nudge to action being taken in the national courts by giving “a clear idea of what is necessary at national level in order to comply with these requirements” (see §11).

The Communication addresses the whole range of relevant issues:

• The legal context: national courts and EU environmental law;
• Public interest, obligations and rights;
• Legal standing;
• Scope of judicial review;
• Effective remedies;
• Costs;
• Time limits, timeliness and efficiency of procedures;
• Practical information to be provided to the public.

A link to the Communication can be found here 

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