Environmental Law News Update

In this latest Environmental Law News Update William Upton QC, Charles Morgan and Mark Davies consider the recent confusion over licensing exemptions for wild birds, Labour’s proposals for the water industry and the decline in nature and acceleration of species extinction highlighted in a report from the IPBES.

Wild Bird controls confusion

The recent actions by Natural England (“NE”) appear to be an object lesson in how not to change a long-established system of licensing exemptions. The practicalities and the political storm have now led to the Secretary of State (Mr Gove) being asked by NE to take back control of granting licences for the control of wild birds under section 16(1) of the Wildlife and Countryside Act (letter from the Secretary of State on 4th May 2019). Since 1992, everyone in England had been able to rely upon three general licences (known as GL04, GL05, GL06) which enabled the use of lethal controls against certain listed bird species in order to prevent serious damage to livestock, crops, fisheries and to prevent the spread of disease; to preserve public health and safety; and to conserve other wild birds, plants and other wildlife. The general licence was a simple document, listing the species legally affected and the legally permitted methods, essentially on a single page. It had the great merit of being easily understood by everyone across a huge range of activities.

On 25th April, this came to an end, and NE have started to try to issue dozens of more specific licences. NE say that they had no choice but to accept that the general licences were unlawful (after all these years), as they had been given unequivocal legal advice that they could not defend a judicial review brought by the action group Wild Justice (started 10 weeks before). It was said that NE could not ensure or even know if the licence conditions were being met. Oddly, this seems to be a practical rather than a legal issue. It seems that justification can be made out. As the ENDS Report has noted, when the interim chief executive was asked on Farming Today on 26th April whether there would be any situation where someone might not get a licence to shoot birds, she replied, “I am struggling to envisage that.” It appears that whilst we should acknowledge that the regulator has had to change its legal stance on this use of licensing, we should worry about how it makes its decisions (however hard hit they have been by cuts).

More Water Leaks …

… this time from the Labour Party. At last year’s national conference the party made clear its intention to renationalise the water and sewerage industries if elected. A document Clear Water: Labour’s Vision for a Modern and Transparent Publicly-Owned Water System set out the rationale and policy. It included a section on “Compensating Shareholders” which proposed exchange of bonds for shares and indicated that “Parliament may seek to make deductions for compensation on the basis of: pension fund deficits; asset stripping since privatisation; and state subsidies given to the privatised water companies since privatisation.” Water UK (the industry’s representative body) then commissioned a study which suggested that the cost to the public purse might be as great as £90bn (including debt). Last weekend, The Sunday Times leaked the contents of an internal Labour Party document containing an estimate of only £24bn, essentially omitting from the measure of compensation any reflection of anticipated future profits and intended to reflect “how much shareholders actually put into a company”.

Those around at the dawn of privatisation in 1989 may recollect the feeding frenzy upon the public issue of shares in the new undertakers, which grew considerably in value overnight. This was doubtless encouraged by the imposition upon the newly-created Director-General of Water Services (the forerunner of Ofwat) of a statutory duty to ensure that the new companies secured “reasonable returns on their capital” (s. 7(2)(b) Water Act 1989, now replaced by s. 2(2)(b) Water Industry Act 1991) – a security which an ordinary private company and its investors would die for.

However what Parliament has given, Parliament can take away. In Clear Water, Labour opines that “The UK legal framework is clear that the level of compensation should be decided by Parliament. This was confirmed by the European Court of Human Rights in relation to the nationalisation of Northern Rock” – a reference to the case of Grainger v The United Kingdom (Admissibility) (34940/2010); (2012) 55 EHRR SE13 which declared inadmissible the challenge of Northern Rock shareholders to the terms of the compensation scheme of that nationalisation – in markedly different circumstances, namely state intervention to prevent the collapse of an entire sector of the economy following insolvency of a bank. Whether the same approach would apply to the extremely buoyant water industry is not certain.

Interesting times.

Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) Report highlights the danger we pose to nature

On 6 May the IPBES published a truly damning report, highlighting the dangerous decline in nature and the acceleration of species extinction. The panacea? ‘Transformative change at every level from local to global’ according to IPBES Chair, Sir Robert Watson, meaning: ‘a fundamental, system-wide reorganization across technological, economic and social factors, including paradigms, goals and values’.

Some of the headlines from the report (drawn from 15,000 scientific and government sources and complied by 145 expert authors from 50 countries over 3 years) are:

• Average abundance of native species in most major land-based habitats has fallen by at least 20%, mostly since 1990;
• More than 40% of amphibian species, almost 33% of reef forming corals and more than a third of all marine mammals are threatened;
• An estimated 10% of insect species are threatened;
• The extinction of at least 680 vertebrate species since the 16th century;
• 75% of the land-based environment and about 66% of the marine environment have been significantly altered by human actions;
• More than a third of world’s land surface and almost 75% of freshwater resources are now devoted to crop or livestock production;
• Urban areas have more than doubled since 1992; and
• Plastic pollution has increased tenfold since 1980 with 300-400 million tons of heavy metals, solvents, toxic sludge and other wastes from industrial facilities being dumped into the world’s waters annually.

Based on an analysis of the available evidence, the direct drivers, ranked in order of importance, for the changes are: (1) changes in land and sea use, (2) direct exploitation of organisms, (3) climate change, (4) pollution and (5) invasive alien species.

Given the weight of this report, and its recommendations as to the what the transformative change must entail, it will be interesting to see whether concerns about biodiversity gain greater weight in legal proceedings. This author would suggest that it would be arguable.

Also, on our International Climate Change Blog – UK Climate Change Committee calls for zero emissions by 2050 – UK to become the world leader in carbon emissions reductions to 2050 if advice provided to the Government by its Climate Change Committee is accepted.

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