Environmental Law News Update

In this latest Environmental Law News Update Christopher Badger, William Upton and Nicholas Ostrowski consider the Environment Agency’s list of recently accepted Enforcement Undertakings, a new DEFRA consultation on the future of food, farming and the environment in a Green Brexit, and the supplementary judgment in the most recent ClientEarth judicial review.

Enforcement Undertakings accepted

The Environment Agency has published its list of Enforcement Undertakings (“EUs”) accepted in the period 1 September 2017 to 31 January 2018.

The list identifies the offeror, the offence for which the EU was accepted, whether the offer was proactive or reactive and actions that include remediation and that will secure equivalent benefit or improvement to the environment.

The two largest offers are both from Thames Water Utilities Limited, reactive offers for discharging matter or effluent that is poisonous or injurious to fish, spawn, spawning areas or food of fish contrary to section 4(1) of the Salmon & Freshwater Fisheries Act 1975. The first includes a financial contribution of £140,000 to the Reading & District Angling Association, £60,000 to Kennet Valley Fisheries Association and £10,000 to Silchester Common Parish Council. The second includes a financial contribution of £250,000 to the Wandle Trust.

It appears that attempts are being made to put water companies under pressure at the moment. The Environment Agency’s recent report on water quality (available here) highlighted the number of serious incidents caused by the water industry and in both that document and a recent speech, the Chair of the Environment Agency has called for fines to be made “proportionate to turnover”, a departure from current sentencing practice. Michael Gove gave a speech on 1 March at Water UK’s annual conference in which he said that water firms’ performance in stopping pollution had “stalled” and that he would “consider changes to the regulatory framework” should companies continue to drag their feet.

According to the Environment Agency, the number of serious water pollution incidents has levelled over the last decade to about 60 incidents each year, although in fact agriculture is now the largest sector responsible for significant pollution events to water (more on this below).

The list doesn’t identify the assessment of culpability and harm in any particular case, which makes it very difficult to use as a form of comparison or to assess the consistency of approach by the Environment Agency. Nor does the list contain sufficient detail to allow for the proposed natural capital calculator to be used and to see if it would make any meaningful difference.

The full list can be found here 

The future for food, farming and the environment

Another consultation for us all to enjoy!

On 27 February 2018 DEFRA launched a consultation on the future of food, farming and the environment in a Green Brexit.

The proposals cover three distinct periods:

a) Until the end of the current Parliament (i.e. 2022), the same amount of farm support that is currently provided under the Common Agricultural Policy will be provided

b) Beyond 2022, there will be an ‘agricultural transition’ period lasting a number of years during which direct payments will continue but which would result in subsidies being gradually reduced so that in the first year of this period, reducing direct payments could free up to approximately £150 million which could be used to support farmers in delivering environmental enhancement and other public goods

c) After the new agricultural transition period, the new scheme will begin to apply. This will have several elements:

i. A new environmental land management system to pay providers for delivering environmentally beneficial outcomes and provide support for farmers and managers who steward their land responsibly;
ii. Targeted payments to those who deliver higher welfare standards for animals;
iii. Smarter regulation and enforcement to remove, reduce or improve inspections on farms;
iv. Managing risk and volatility for farmers;
v. Helping rural communities prosper;
vi. Encouraging international trade
vii. Ensuring a sufficient and suitably skilled workforce exists; and
viii. A new statutory framework.

Every element of the proposals are significant and controversial. If it was so easy to create a subsidy system which was fair, politically palatable and which properly paid providers which delivered environmentally beneficial schemes then, you may ask, why wouldn’t this have been implemented in the CAP? However, the biggest immediate concern for many involved in the rural economy may be the simple question of where they are going to find sufficient staff to work at Britain’s farms in the absence of the free movement of migrants from the EU. The suggestion that the new system will ensure a sufficient and suitably skilled workforce exists seems particularly ambitious.

The consultation is available here. Responses are due by 8 May 2018.

The ClientEarth (No.3) Order

Following on from last week’s item, we can now note that the terms of the Order were the subject of a supplementary judgment, on 21th February. The text of this has become available.

It was accepted that the Welsh Government have come up with “a realistic, but demanding, timescale” for the production of their own Air Quality report in 2018. As for England, the Supplementary Air Quality Plan must be published by 5th October 2018. The Court has also confirmed that it will indeed take a supervisory role, so that the claimant does not have to launch fresh judicial review proceedings all over again if it wants to challenge the government’s compliance with this supplement. Whilst this supervisory role is highly unusual, and has interesting Administrative law implications, Garnham J did point out that:

“It is now eight years since compliance with the 2008 Directive should have been achieved and the 2017 Air Quality Plan is the third unsuccessful attempt the government has made at devising a plan which complies with the Directive and the domestic regulations. All the while, the health of those living in the towns and cities of this country is at real risk”.

Whilst he did not doubt the government’s good faith, “the history of this litigation demonstrates that good faith, hard work and sincere promises are not enough. ”

It was said in Parliament on 22nd Feb by the Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Dr Thérèse Coffey) that the government would not be appealing.

Have you seen our latest Environmental Law Video Newscast – a monthly round-up of the latest developments in environmental law. February’s edition can be viewed here. Future editions will be available at the end of each month on our website.

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