Environmental Law News Update
May 29, 2019
In this latest Environmental Law News Update William Upton QC and Gordon Wignall consider the potential prosecution of 1,130 environmental protestors, the application of EU waste legislation to fires on board ships and a fine of £1.16m imposed on an oil company following an offshore gas leak.
Revisiting the limits of environmental protest
One of the unusual features of the London protest in April by Extinction Rebellion was the low number of people charged – only about 70 or so of the 1130 who were arrested. We now have the answer – the police have been waiting their time. Everyone arrested has been under investigation, and the Deputy Assistant Commissioner Laurence Taylor is now quoted as saying “it is our anticipation that we are putting all of those [arrested] to the Crown Prosecution Service.” At the time the police stated that they were balancing the rights of those engaged in lawful protest against the needs and rights of Londoners to go about their daily lives with minimum disruption, and only arrested those who were not acting within the law. Those protests lasted 11 days and included a boat bolted to the ground in Oxford Circus and two disabled trucks with protesters either on top or glued to them.
Assuming the CPS does decide to commit its limited resources to this, the prosecutions will test the courts. There is a right to protest in a peaceful way, even if it causes some obstruction, and Section 14 conditions on public assemblies (under the Public Order Act 1986) can only be imposed ‘as they appear necessary to prevent serious disorder, disruption of the life of the community, or intimidation’. After all, Parliament declared a climate emergency on 1st May.
The Met Police are also quoted as saying they want to review the public order legislation to discourage a similar style of protest.
Waste shipments
On 14 July 2012, during a voyage from Charleston to Antwerp, the MSC Flaminia, a container ship carrying 5,000 containers, caught fire. It had to be towed to Wilhemshaven, where arrangements were made to have it repaired in Romania.
The authorities in Germany required the vessel to undergo the notification procedure laid down in the Waste Shipments Regulation (1003/2006). The notification procedure in such circumstances is complex, and requires assessments to be undertaken which, necessarily, could not have been undertaken prior to the voyage.
The owners undertook the notification procedure under protest. Article 1(3)(b) expressly excludes the following from the scope of the Regulation: “waste generated on board … ships until such waste is offloaded in order to be recovered or disposed of”.
After the German authorities pronounced the appeal process “devoid of process”, the owners sued them for the costs they had incurred by reason of the notification procedure. This led to the request for the preliminary ruling, neither the Advocate General nor the ECJ having much hesitation in deciding that Art.1(3)(b) applied, with the result that waste generated by reason of a fire on board ship is excluded from the scope of the Regulation.
The Member State authorities had objected that notification under the WSR would provide the means of ensuring that the environment was properly protected. The ECJ, however, pointed out that other conventions (notably Marpol) provided effective regulation, and indeed that the use of the WSR procedure was likely only to delay and hinder effective environmental protections.
See Container Schiffarts-GmbH & Co KG Ms “MSC Flaminia” v. Land Niedersachsen C-689/17 (16 May 2019).
Marathon Oil fined £1.16m for offshore gas leak
On Boxing Day 2015 pipework on the Brae Alpha platform catastrophically ruptured, resulting in a significant leak of methane. The rupture led to an improvement notice served on 14 January 2016, describing a failure to maintain pipework “in an efficient state, in efficient working order and in good repair”. The HSE’s notice went on to state that failures on the part of the operator “exposed personnel on the Brae Alpha installation to an unacceptable risk of serious personal injury from fire and explosion”.
This was not the first improvement notice served on Marathon Oil in relation to Brae Alpha, and improvement notices have been served subsequently.
In consequence of the incident on 26 December 2016, on 20 May 2019, at Aberdeen Sheriff Court, Marathon Oil was fined £1.16m after admitting breaches of the Offshore Installations (Prevention of Fire and Explosion, and Emergency Response) Regulations 1995 and the Health and Safety at Work Act.
No one was injured in the incident. Most of the 100 personnel on the platform had been gathered in the accommodation block, ahead of their Boxing Day meal, and so they were not near the leak. Both the timing of the incident and the fact that the gas did not ignite was described by the HSE as fortuitous.
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