In this latest Environmental Law News Update, Charles Morgan, Natasha Hausdorff and Mark Davies consider legal action against Shell by Friends of the Earth, specialist environmental tribunals and the Government’s assessment of progress against the 25 Year Environment Plan.
Shell taken to Court by Friends of the Earth
On 5 April 2019 a summons was delivered to Shell’s headquarters in the Netherlands following the commencement of action in the Court of Appeal in The Hague by Friends of the Earth Netherlands (“FOEN”) on behalf of more than 30,000 people from 70 countries. FOEN argue that the Court of Appeal has jurisdiction to hear the case as Shell’s climate change policy is set by its headquarters in The Hague.
The summons was accompanied by a 236-page complaint that set out Shell’s early knowledge of climate change and its role in causing it. The case itself alleges that Shell is breaching its duty of care and threatening Articles 2 and 8 of the ECHR by knowingly undermining the prospect of global temperatures being kept below 1.5oC, the threshold identified in the 2018 Intergovernmental Panel on Climate Change (“IPCC”) report.
If FOEN are successful, the remedy sought is that Shell must reduce its CO2 emissions by 45% by 2030 compared to 2010 levels, and to zero by 2050. This would require wholesale changes in Shell’s business, and, by contrast, Shell’s latest annual reports apparently states that it expects to lower its carbon emissions by 3% by 2021; evidently the parties are some way apart on the numbers.
The action is being spearheaded by the same lawyer who was successful in the Dutch Urgenda case and it appears to largely rely on the same principles of the Dutch Civil Code (in particular 6:162 – unlawful endangerment).
As a parallel, readers may be interested to consider the case of Saúl v RWE, (the case involving the Peruvian farmer and mountain guide, which has now entered its fourth year of litigation – in September 2018 experts were appointed to whether RWE’s actions constituted a serious threat to the Claimant’s property) is resolved and whether, despite it being concerned with property rights and having been commenced prior to the IPCC report, it has any bearing on the Shell case.
The press release for the Shell case may be found here
Michael Gove considering specialist environmental tribunals
The Environment Secretary answered questions last week on the ‘EU Exit and the Environment’ at the 16th meeting in 2019 of the Environment, Climate Change and Land Reform Committee, in the Scottish Parliament.
In response to questions concerning the imposition of penalties and fines, Mr Gove mused on possible enforcement alternatives to fines and indicated:
“We are exploring whether there should be a new system of environmental law tribunals, not to mirror but to emulate some of the good work that immigration and employment tribunals do, by developing a body of expertise in the legal profession that ensures that we have rapid adherence to regulations and laws that guarantee environmental protection.”
The UK Environmental Law Association’s conference was told, last year, that the expansion of the First-tier Tribunal’s environmental remit had stalled, following Emeritus Professor Richard Macrory’s presentation of a “four-point plan for creating a specialised environmental tribunal system” and an expansion of the role of the Environment Tribunal. The tribunal system had been endorsed in particular due to its flexible procedure rules, and as experts may be drafted in to hear cases alongside a judge.
The Environment Secretary confirmed via video link to the Scottish Parliament on 15 May that the Office for Environmental Protection will be a fully independent, arm’s-length body and that the appointment of the chair would be subject to pre-appointment hearings, so that the members of the House of Commons could have “absolute confidence” in the appointee.
Commenting on Brexit, Mr Gove further clarified his approach on secondary legislation, in the form of statutory instruments, noting that these need “to be put in place in order that we can prepare for a variety of eventualities in the process of exiting the EU”, and thanking the Scottish Government and its officials for their hard work, under considerable time pressure, to ensure that agreement was secured on key areas.
A transcript of the dialogue is available here
The 25 Year Plan: does it add up?
or: 4 + 4 + 32 = 37?
In January 2018 the Government published its 25 Year Environment Plan. There’s no point in having one of those unless you check from time to time to see how it’s doing, so (as promised) the Government has now published a 25 Year Environment Plan Progress Report reporting on the first 15 months. The Report states that “of the 40 priority actions expected to make the most significant contribution to the ten goals of the Plan, four have already been delivered”, namely:
- a Clean Air Strategy
- appointment of a national Tree Champion (Sir William Worsley)
- publication of a new Resource and Waste Strategy
- establishment of the Council for Sustainable Business
None of these actions per se has any practical effect at all on the environment, but they all either mandate or enable practical action to be taken. So a step on the way, and the Clean Air Strategy for one is already producing practical results. The Report also states that “Four actions are subject to minor delays”, namely:
- putting in place more sustainable drainage system
- improving soil health and restoring and protecting our peatlands
- minimising the risk of chemical contamination in our water
- working with delivery bodies to build on Area Integrated Plans to develop local natural capital plans.
The Report further states that “A further 32 are on track for timely delivery”. Yes, that adds up, 4 + 4 + 32 = 40.
The Plan itself does not actually contain any obviously discernible list of 40 “priority actions” (it does contain various bullet points headed “Action we will take include:”, but there are 168 of these). The Report nevertheless contains “Table 1 – Status for priority actions”, which does indeed contain four items listed as “Completed 18/19″ (as above) and four further items said to be “In progress, minor delay” (also as above). So, no doubt, the other 32 are also to be found there …
Mysteriously, Table 1 contains only 29 other items, making a total of 37 not 40. What other three priority actions exist, what progress has in fact been made with them, and where have they gone? Students of environmental law with post-exam time on their hands may care to research the point, in return for the promise of a reward for the first demonstrably correct answer.
As the Report acknowledges, “at the heart” of the achievement of the Plan is the Environment Bill, said to provide “stronger environmental governance”. The substance (or perceived lack thereof) of the Bill is already under strong critical scrutiny. It is in turn the product of Brexit, controversial scrutiny of which will not have escaped anyone. It is thus plain that the Plan is at something of a crossroads at an early point in its 25 year journey. The Report on its progress is 75 pages long and will undoubtedly itself enjoy detailed scrutiny by NGOs and other ‘stakeholders’ in the environment.
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