Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger, William Upton and Nicholas Ostrowski consider the adoption of draft emissions legislation by the European Parliament, an ECJ ruling against mitigation measures in the screening stage of Habitat Regulation Assessment and what happens when a sentencing judge rejects an agreed basis of plea in a regulatory case.

European Parliament tackles emissions

On Tuesday 17 April at a plenary session of the European Parliament, two draft laws with binding national emission targets were adopted.

EU targets are to be turned into binding national targets for sectors which are not covered by the current EU Emissions Trading Scheme, essentially agriculture, transport, building and waste, which together account for about 60% of the EU’s greenhouse gas emissions.

The cuts are intended to contribute to meeting the EU’s overall collective pledge, under the Paris Agreement on climate change, to deliver a 40% cut in greenhouse gas emissions in all sectors, from 1990 levels. The effect will be to commit the UK to a reduction in greenhouse gas emissions of 37% from its 2005 levels by 2030.

Secondly, the European Parliament also adopted a separate law, aiming to cut greenhouse gas emissions from land-use and forestry and boost the level of emissions absorbed by forests as a way to tackle climate change. Currently, EU forests absorb the equivalent of nearly 10% of total greenhouse gas emissions each year.

The proposed law would lay down rules under which EU countries have to ensure that deforestation is balanced by planting new trees, and sets measures to develop the sector in order to boost CO2 absorption by forests, croplands and grasslands. From 2030, member states should endeavour to boost CO2 absorption so that they exceed their emissions.

Both drafts will need the European Council’s formal approval before entering into force.

The UK is currently committed to a greenhouse gas emission reduction of 57% of 1990 levels by 2030 as part of the 5th carbon budget and is a party to the Paris Agreement. How the UK meets its targets is a distinct issue. It is precisely this kind of development where the UK risks losing its voice as a result of Brexit. Depending on what is agreed with the EU in the final agreement, it is perfectly possible that the UK will find itself committed to meeting EU environmental standards that it will have had no role in determining.

Regulatory Judge rejects basis of plea

Anyone involved in criminal environmental litigation will be aware of the complexities of negotiating a basis of plea that is acceptable to the prosecution and the defendant. But what happens when the sentencing judge rejects an agreed basis of plea?

In R (HSE) v ATE Truck and Trailer Sales Ltd [2018] EWCA Crim 752 the Court of Appeal have grappled with exactly this problem in respect of another regulatory offence, a breach of the Health and Safety Regulations.

In ATE the victim died from head injuries sustained while breaking up a metal trailer in the defendant’s premises. The main issue which troubled the parties was that the victim worked on the defendant’s site but ran his own business and was not the defendant’s employee or agent. The parties agreed a basis of plea which essentially set the case within ‘low culpability’ but the seriousness of harm risked in the highest category (there remained some dispute about how likely the harm was).

However, at the Crown Court the experienced regulatory judge disagreed with both parties and assessed culpability as high and went on to impose a sentence of £475,000.

The Court of Appeal confirmed that a judge can depart from an agreed basis of plea but, given the breach which the defendant pleaded guilty to (a breach of the duty of care to its own employees rather than, as one may have expected, a breach of the duty owed to non-employees) ‘this case stands as a further reminder of the need for care when tendering and accepting a basis of plea.’ Ultimately, the Court of Appeal found that the judge strayed into the consideration of offences outwith the charge that the company had actually pleaded guilty to, and thus that the judge was therefore wrong to impose a sentence based on high culpability when the basis of plea correctly assessed culpability as low.

Both prosecutors and those who act for defendants should consider this case when considering which of a range of offences best covers the facts of the offence and also when negotiating a basis of plea and ‘selling’ the basis of plea to the sentencing judge.

No mitigation measures in Habitat screening

Well, this will put the cat among the pigeons.

The European Court of Justice has decided that the competent authority cannot take mitigation measures into account in the screening stage of the Habitat Regulation Assessment. Instead of being able to determine at an early stage that the project is not likely to have a significant effect, projects will have to go through a much more long-winded process of approval.

This appears to revive an old argument, familiar from many EIA cases. But it is one the European Commission advanced to the court as well. It is also intended to enhance public participation in the discussion about the effects. The court agreed “the fact that, as the referring court has observed, measures intended to avoid or reduce the harmful effects of a plan or project on the site concerned are taken into consideration when determining whether it is necessary to carry out an appropriate assessment presupposes that it is likely that the site is affected significantly and that, consequently, such an assessment should be carried out.”

The Supreme Court decision in Champion looks like it needs early re-assessment. The UK will no doubt regret that no member states intervened in the case and there is no Advocate General’s opinion. It is a short and blunt judgment that does not engage with any of the contrary arguments. It makes you wonder what the screening stage can sensibly do for any controversial project near a protected site.

See the judgment in People Over Wind and Peter Sweetman v Coillte Teoranta, Case C 323/17, 12 April 2018 (an Irish court reference in a case about the grid connection cable to a wind farm).

Have you seen our latest Environmental Law Video Newscast  published this month – a monthly round-up of the latest developments in environmental law.

Chambers UK Guide to Environmental Law 2018 was published this month and written by Six Pump Court’s Environmental Law Team. You can also use this link to access the full-text pdf version. The Guide provides easily accessible information to help navigate environmental law in the UK and covers the environmental regulatory framework, environmental protection, developments in policy and law, enforcement, liability and disclosure requirements as well as the law as it relates to contaminated land, waste, asbestos, climate change and emissions.

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