Environmental Law News Update

August 20, 2018

In this latest Environmental Law News Update, Nicholas Ostrowski, Natasha Hausdorff and Angelica Rokad consider a recent authority on the status of supplementary badger culling, further legal action against Heathrow expansion from environmental NGOs and a recent fine imposed on a water company for poor water quality.


Badger culling

Badger culling was back in the news this week, in a judgment that is not only important to badgers but also to the scope of consultation and the Habitat Regulations.

Natural England has been issuing annual licences to cull badgers, up to a maximum longstop period of four years, since the government permitted the licensed culling of badgers as part of its strategy for achieving a bovine tuberculosis (“bTB”) free status for England. Following further consultation, Defra’s Guidance was re-issued in 2017. This extended Natural England’s powers by authorising it to provide supplementary licences which permitted the culling of badgers beyond a period of four years in areas which have already been subject to the standard licence periods.

Tom Langton, an independent ecologist, challenged this policy to allow the supplementary culling of badgers. Langton’s argument with respect to the policy centred essentially on DEFRA’s failure to consult, at a formative stage, on the principle of supplementary culling and properly consider whether there was an alternative approach – even if that meant, for example, doing nothing.

Mr Justice Cranston considered the consultation document to be, in many ways, both “unimpressive” and “not ideal”. However, it did not, in his view meet the high thresholds of procedural unfairness or irrationality to render it unlawful. He considered that DEFRA was entitled to issue the 2017 Guidance on the basis that the principle of supplementary badger culling had already been satisfied.

The importance of the statutory context in judicial review challenges based on unlawful consultations was emphasised by the Court. This has been raised in recent judicial reviews spanning the fields of heath, planning and most notably, challenges to local Government budget cuts. The Court considered that decision makers should be afforded a broader discretion than that which appeared on the face of the statute. If the “logic” of the statute did not compel it to take into account certain considerations, then the decision maker has a discretion to judge what it considered relevant in the particular circumstances. The Court also accepted that there was no need for a decision maker to refer explicitly to discarded alternatives on the face of the consultation. Rather, that requirement only arose in a limited number of cases, where “special circumstances” existed.

Langton also challenged the evidence, regarding whether in granting licences in particular areas Natural England had conducted adequate assessments under the Habitats Regulations. In one of those classic JR turns of phrase, the judge held that Natural England was “rationally entitled to conclude” that it could exclude the possibility of a significant disturbance effect in these areas, notwithstanding the precautionary principle. The court also took into account the licence conditions as integral features of the project which Natural England needed to assess under the Habitats Regulations. Whilst this may seem to contradict the recent People Over Wind ruling, this is actually a common sense approach. It would be odd indeed for Natural England to have to assume that culling was going to take place at times and places where the applicants did not propose to do so.

The Government’s Statutory Guidance on bBT can be found here.


Friends of the Earth and Plan B challenge Heathrow Expansion in the High Court

The Government’s decision to designate the Airports National Policy Statement (NPS), which gives the go-ahead to a third runway at Heathrow, has recently prompted legal action in the High Court by two environmental NGOs.

The policy framework for expansion at Heathrow Airport, devised by the Transport Secretary Chris Grayling, has been challenged by Plan B with a claim for judicial review focusing exclusively on climate change impact. Previous challenges by other organisations, including Greenpeace and a number of councils, have focused on noise or air pollution. Plan B maintain that the proposal breaches legal obligations in the Planning Act to alleviate the impact of climate change and promote sustainable development. The organisation argues that the NPS designated by Chris Grayling does not consider the Government’s obligations under the Paris Agreement on Climate Change.

In the same week, Friends of the Earth has asked for the Airports NPS to be quashed, on the basis that it fails to address the UK’s climate change obligations. In particular, the environmental organisation claims that the NPS fails to account for all the impacts on future generations, who will be left with the adverse consequences of growth from aviation-increasing climate impacts, in the following way it does not explain how it takes account of domestic targets for greenhouse gas emission reduction under the Climate Change Act 2008;

i) it does not explain how it takes account of domestic targets for greenhouse gas emission reduction under the
Climate Change Act 2008;
ii) it does not factor in the Paris Agreement, which aims to limit global warming to well below 2°C and to pursue
efforts to limit it to 1.5°C;
iii) it fails to factor in the non-CO2 climate impacts of a third runway, such as the emission of nitrogen oxides,
which generate warming effects of a similar magnitude to CO2 emissions; and
iv) it does not lawfully and fully consider the likely impact on future generations of a third runway, who will be
stranded with the climate-damaging infrastructure.

The Department for Transport’s analysis of the measure indicated there was a risk that expansion would delay compliance with air quality laws. Nevertheless, many have emphasised that the plans will create 114,000 extra jobs by 2030, with the potential for an extra 16 million long-haul seats by 2040.

A decision on whether there will be a full hearing about these issues is expected to be made this Autumn.


Southern Water fined over water quality

The Drinking Water Inspectorate (‘DWI’), which focuses solely on the regulation of drinking water, is a comparatively small regulator within the ‘Defra family’ (as they like to refer to themselves these days). It typically brings only a handful of prosecutions each year, which is reflective, perhaps, of the UK’s generally high standards of drinking water. This case follows further prosecutions brought against United Utilities (who were sentenced for a similar offence in June 2018 and October 2017) and Southern Water who were sentenced in August 2017 for another offence under Section 70 of the Water Industry Act 1991. Section 70 creates an offence of allowing water to enter the supply system which is unfit for human consumption.

The DWI brought proceedings when discoloured and highly turbid water entered the supply system from the Cooks Castle Shanklin reservoir on the Isle of Wight, which supplied approximately 17,000 customers, back in 2013. The offence occurred when the outlet main was ruptured by a drilling rig during site investigation work which allowed soil and other debris to enter the network. On 10 August 2018 Southern Water were fined £65,000 and ordered to pay £44,620 in costs after supplying water which was unfit for human consumption. The time since the offence appears to have been put to effective use by Southern Water – in summing up, the judge noted that the company had made substantial changes to its operation since the incident, and that “It is clear this is a very different company now.”

The European Court of Justice has just accepted a major new people’s climate case challenging the EU’s targets to 2030. Read the story in full on our International Climate Change blog

**Please note there will be no update next week – the next Environmental Law News Update will be sent out on Monday 3rd September 2018**