Envrionmental Law News Update
November 30, 2023
COP that!
COP 28 is due to begin on Thursday and already it is not without controversy. First leaked documents have, according to the BBC [1], revealed plans that the United Arab Emirates had as host of the UN climate talks to discuss fossil fuel deals with 15 nations, including commercial opportunities for its state renewable energy company with the UK.
Now seventy international figures, led by the former UK prime minster Gordon Brown, have signed a letter calling for a $25 billion levy on oil states revenues to help fill a ‘loss and damage’ fund. As reported in the Guardian [2], filling the loss and damage fund is one of the key tasks at COP 28. Hundreds of billions will be needed. Sources of revenue being explored include potential levies on frequent flyers and on international shipping.
Loss and damage has been a divisive issue for years. On 29 August 2023, the House of Commons published a Research Briefing [3] on the potential for a loss and damage fund. The publication makes it clear that this should not be considered ‘reparations’, something that has been explicitly ruled out by the United States and rejected by the UK. There is a fear that such terms would expose countries to huge legal and financial risks, opening the floodgates for litigation. Such a fear may well be justified – climate litigation has already seen a rise in cases where damages have been sought from fossil fuel companies following impacts from rising sea levels and extreme weather events such as Hurricane Katrina.
Although Article 8 of the Paris Agreement identifies that Parties recognise the importance of averting, minimising and addressing loss and damage associated with the adverse effects of climate change, paragraph 52 of the Decision adopting the Paris Agreement explicitly states:
“Article 8 of the Agreement does not involve or provide a basis for any liability or compensation”
Consequently, a key legal issue likely to be debated at COP 28 is the extent to which ‘loss and damage’ equates to or does not equate to ‘compensation’ or recognition of a ‘liability’ and, if it does not, what are the circumstances in which a nation will be entitled to funding.
The BBC news report can be found here: https://www.bbc.co.uk/news/science-environment-67508331
The Guardian article can be found here: https://www.theguardian.com/environment/2023/nov/28/former-world-leaders-seek-25bn-levy-on-oil-states-revenues-to-pay-for-climate-damage
The House of Commons Research Briefing can be found here: https://researchbriefings.files.parliament.uk/documents/CBP-9848/CBP-9848.pdf
A “Smoke and Mirrors” Approach to River Management? High Court Sewage Challenge Successful
The very prominent question of sewerage discharges into rivers has formed the basis of a number of recent challenges in the High Courts. Two have failed, but a third has just been successful.
In Wild Justice v Water Services Regulation Authority [2022] EWHC 2608 (Admin) Wild Justice argued that Ofwat “were failing to meet their responsibilities to regulate discharges of raw sewage”. Mr Justice Bourne took the view that Ofwat was making appropriate efforts to comply with its legal duties, and the claim was dismissed.
In September 2023, the High Court published judgment of a challenge to the August 2022 Storm Overflows Discharge Reduction Plan. R (on the application of Wildfish Conservation) v SoS Environment, Food and Rural Affairs and others; and R (on the application of Marine Conservation Society, Richard Haward’s Oysters, and Mr Hugo Tagholm) v SoS Environment, Food and Rural Affairs [2023] EWHC 2285 (Admin). The 7 Grounds advanced by the Claimants were detailed, technical, and discussed at length. To give a flavour, we highlight an aspect of Ground 1. It was said the SoS made an error of law in applying the scope of reg.4 of the Urban Waste Water Treatment Regulations 1994. That regulation provides for a duty to provide and maintain collecting systems and treatment plants. The Claimants said that the duty to remedy treatment systems and ensure capacity of collecting systems came within reg.4, but Mr Justice Holgate said that argument had “no merit”: such a requirement only arises if a specific “best technical knowledge not entailing excessive costs” (BTKNEEC) test is met, and it was not. Mr Justice Holgate also held (at [175]) that, in any event, “the court is in no position to assess the overall proportion of overflows discharging in non-exceptional circumstances which fail to satisfy the BTKNEEC test.”
Wildjustice, disappointed to lose the challenge, have also said the discussions aired in Court have clarified responsibilities and sharpened minds[1]. And it is interesting to note that the Government has since published an updated Storm Overflows Discharge Reduction Plan on 25 September 2023[2], which promises expansion and clarification, plus a new ecological standard and a new rainfall target.
A third and most recent challenge has, however, been successful. In R (on the application of Pickering Fishery Association by Martin Smith) v Secretary of State for Environment, Food and Rural Affairs [2023] EWHC 2918 (Admin), the Claimants challenged the Humber River Basin Management Plan. The Claimants were a Fishery Association in North Yorkshire. Since 2006 they had raised concerns with the Environment Agency, including about pollution from sewage overflows and storm discharges from Pickering Water Treatment Works.
Regulation 13 of the Water Environment (Water Framework Directive) Regulations 2017 requires river authorities to submit a Programmes of Measures so as to achieve good ecological status. Regulation 12 requires a review of such measures. The measures published online[3] had no information about the Upper Costa Beck, where the Claimants have fishing rights. The Claimants submitted the SoS incorrectly relied upon a “wholly generic”, and so unlawful, Programme of Measures (at [92]).
Ground 1 was therefore that the SoS misdirected herself in the reviews required because the review was only at the river basin district level, and not a water body level. Other related Grounds were advanced, for example Ground 3 was that the SoS failed to approve a lawful Programme of Measures.
Mrs Justice Lieven held (at [113]) that “there is a considerable element of smoke and mirrors here. The risk commentary in the Overview is entirely generic.” The particular concern was that the relevant documentation concerning the Upper Costa Beck “makes it clear that the environmental objectives for [it] are unlikely to be met.”
The Secretary of State responded by pointing to Article 13 of the Water Framework Directive which states that the River Basin Management Plan need only include a “summary” of the Programme of Measures.
But Mrs Justice Lieven disagreed. She held, as a matter of statutory interpretation, that the approach of the SoS was unlawful: (at [140]) “if the measures are generic and there is no way to refer them to specific water bodies in order to consider their effectiveness in reaching the deadline then this would appear to rob [the] regulation of any effect”. The Programme of Measures did not contain the legally required information (at [156]).
The case has been reported in the press. Andrew Kelton, a solicitor at Fish Legal, said[4]: “The Environment Agency and the Government have taken a high-level, generic – and effectively non-committal – approach to achieving targets when what was needed was a waterbody-by-waterbody plan of real action to stop ongoing damage.”
Levelling Up and Regeneration Act 2023 amends Environment Act 1995
An interesting feature of “LURA” (The Levelling Up and Regeneration Act 2023) is amendments to National Park legislation.
Section 245(3) LURA 2023 amends the National Parks and Access to the Countryside Act 1949, by removing the obligation of decision makers to “have regard to”, and substituting it with a more positive duty, to ensure that they “must seek to further the purposes” specified in section 5(1) of the 1949 Act.
Section 5(1) of the 1949 Act provides:
The provisions of this Part of this Act shall have effect for the purpose—
(a) of conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas specified in the next following subsection; and
(b) of promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public.
Section 245(3) LURA 2003 goes further, and states (underlining added) that “if it appears that there is a conflict between those purposes, [a relevant authority] must attach greater weight to the purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the area comprised in the National Park”
Section 245(4) LURA 2003 inserts a new section, s.66A, into The Environment Act 1995. Section 66 of the 1995 Act provides for National Park Management Plans. The new section 66A is a power for the SoS by regulations to make provision that a National Park Management Plan contributes to the meeting of any environmental targets under Part 1 of the Environment Act 2021, and provide detail as to how it will do so.
[1] https://wildfish.org/latest-news/wildfish-against-sewage/
[2] https://www.gov.uk/government/publications/storm-overflows-discharge-reduction-plan
[3] https://www.gov.uk/guidance/humber-river-basin-district-river-management-plan-updated-2022
