Abstract
EDITORIAL
A torrent of laws poured out of Westminster in the run up to the UK’s departure from the EU, in what seemed to be a Sisyphean task for legislators. The UK’s Brexit transition has generated an overwhelming number of regulations all seeking to ‘plug the gap’ before the UK formally parted ways with the EU. This edition of the ELR has undertaken the Herculean task of wading through the myriad coronavirus regulations to find and digest the equally overwhelming number of environmental regulations made over the previous quarter. Readers will see, among it all, the new Fisheries Act 2020 has been enacted, together with far-reaching environmental protection legislation in Scotland. Read on to find out more about those Acts and to see what changes have come about following Brexit.
The star of the case reports this quarter must be the Heathrow Airport judicial review challenge. The headlines following the judgment will have been difficult to avoid. Heathrow Airport appealed against a decision by the Court of Appeal that the Secretary of State’s designation of the Government’s Airports National Policy Statement favouring the development of a third runway at the airport was unlawful because the Secretary of State for Transport had failed to adequately consider the Paris Agreement. The appeal was allowed. The Supreme Court held that the Secretary of State had taken the Paris Agreement into account and lawfully exercised his discretion as to how much weight to attribute to it. Notably, the court construed the Planning Act 2008, particularly the phrase ‘Government policy’, to ensure that the provision was able to operate sensibly.
Other judicial review challenges in the cases of Havant Biogas and ClientEarth have provided some useful clarity to the proper approaches to certain policies and laws. Read on for more.
Update
Newcastle University
Jennifer Wardle and Anna McClean
Trinity Chambers, Newcastle
Alice Richardson, Matthew R. Crowe, Parissa Najah, Shada Mellor and Jack Cottrell
EU LEGISLATION AND TEXTS
Commission Regulation (EU) 2020/1405 of 1 October 2020 establishing a fisheries closure for redfish in Union and international waters of 5; international waters of 12 and 14 for vessels flying the flag of Spain
The fishing quota allocated to Spain for the stock of redfish has been exhausted in Union waters of 5 and international waters of 12 and 14.
Commission Regulation (EU) 2020/1417 of 2 October 2020 establishing a fisheries closure for witch flounder in NAFO 3NO area for vessels flying the flag of a Member State of the European Union
The fishing quota allocated to Member States for the stock of witch flounder has been exhausted in NAFO 3NO area for 2020.
Commission Regulation (EU) 2020/1476 of 10 October 2020 establishing a fisheries closure for Northern albacore in the Atlantic Ocean, north of 5° N for vessels flying the flag of Ireland
The fishing quota allocated to Ireland for the stock of Northern albacore in the Atlantic Ocean, north of 5° N for 2020, has been exhausted.
Council Regulation (EU) 2020/1485 of 12 October 2020 amending Regulation (EU) 2019/2236 fixing for 2020 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Mediterranean and Black Seas
The Regulation sets the fishing quotas for Red Mullet, Hake, deep-water rose shrimp, Norway lobster and blue and red shrimp in the Alboran Sea, Balearic Islands, Northern Spain and the Gulf of Lion.
Commission Regulation (EU) 2020/1518 of 15 October 2020 establishing a fisheries closure for common sole in areas 7h, 7j and 7k for vessels flying the flag of Belgium
The fishing quota allocated to Belgium for the stock of common sole in areas 7h, 7j and 7k for 2020 have been exhausted.
Commission Regulation (EU) 2020/1520 of 15 October 2020 establishing a fisheries closure for plaice in areas 7h, 7j and 7k for vessels flying the flag of France
The fishing quota allocated to France for the stock of common sole in areas 7h, 7j and 7k for 2020 have been exhausted.
Commission Regulation (EU) 2020/1521 of 15 October 2020 establishing a fisheries closure for pollack in areas 8a, 8b, 8d and 8e for vessels flying the flag of Belgium
The fishing quota allocated to Belgium for the stock of Pollack in 8a, 8b, 8d and 8e for 2020 have been exhausted.
Commission Regulation (EU) 2020/1522 of 15 October 2020 establishing a fisheries closure for hake in areas 8a, 8b, 8d and 8e for vessels flying the flag of Belgium
The fishing quota allocated to Belgium for the stock of hake in 8a, 8b, 8d and 8e for 2020 have been exhausted.
Commission Regulation (EU) 2020/1523 of 15 October 2020 establishing a fisheries closure for common sole in areas 8a and 8b for vessels flying the flag of Belgium
The fishing quota allocated to Belgium for the stock of common sole in 8a and 8b for 2020 have been exhausted.
Commission Regulation (EU) 2020/1660 of 15 October 2020 establishing a fisheries closure for megrims in areas 8a, 8b, 8d and 8e for vessels flying the flag of Belgium
The fishing quota allocated to Belgium for the stock of megrims in 8a and 8b for 2020 have been exhausted.
Council Decision (EU) 2020/1517 of 19 October 2020 on the position to be taken on behalf of the European Union in the Council of the North Atlantic Salmon Conservation Organisation established by the Convention for the Conservation of Salmon in the North Atlantic Ocean as regards the application for accession to that Convention submitted by the United Kingdom and repealing Decision (EU) 2019/937
The Union will approve the UK’s application for accession to the North Atlantic Salmon Conservation Organisation (NASCO). The accession of the UK to the NASCO Convention will allow the UK to cooperate on the necessary conservation and management measures with due regard to the rights, interests and duties of other countries and of the Union and to ensure that fishing activities are carried out in a way that results in the sustainable exploitation of the salmon stocks concerned.
Council Decision (EU) 2020/1545 of 19 October 2020 on the signing, on behalf of the Union, and provisional application of the Agreement in the form of an Exchange of Letters between the European Union and the Government of the Cook Islands concerning an extension of the Protocol on the implementation of the Sustainable Fisheries Partnership Agreement between the European Union and the Government of the Cook Islands
Through the Exchange of Letters, the Union and the Government of the Cook Islands have renewed the Protocol on the Implementation of the Sustainable Fisheries Partnership Agreement. This allows the Union and the Government of the Cook Island to continue working together to promote a sustainable fisheries policy and the sound exploitation of fisheries resources in the Cook Islands’ waters and to allow Union vessels to carry out their fishing activities in those waters.
Commission Delegated Regulation (EU) 2020/2174 of 19 October 2020 amending Annexes IC, III, IIIA, IV, V, VII and VIII to Regulation (EC) No 1013/2006 of the European Parliament and of the Council on shipments of waste
The Conference of the Parties to the Basel Convention decided at its 14th meeting held in May 2019, by Decision BC-14/12, to include a new entry for hazardous plastics waste (entry A3210) in Annex VIII and two new entries for non-hazardous plastic waste in Annex II (entry Y48) and Annex IX (entry B3011) to the Basel Convention. Those changes will become effective on 1 January 2021. This Regulation modifies the relevant Annexes to Regulation (EC) No. 1013/2006 to take account of changes relating to entries on plastic waste in the Annexes to the Basel Convention.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020R2174&qid=1612274196456
Commission Regulation (EU) 2020/1557 of 21 October 2020 establishing a fisheries closure for whiting in area 8 for vessels flying the flag of Belgium
The fishing quota allocated to Belgium for the stock of whiting in area 8 for 2020 has been exhausted.
Commission Regulation (EU) 2020/1558 of 21 October 2020 establishing a fisheries closure for skates and rays in Union waters of 8 and 9 for vessels flying the flag of Belgium
The fishing quota allocated to Belgium for the stock of skates and rays in Union waters of 8 and 9 for 2020 has been exhausted.
Commission Implementing Decision (EU) 2020/1604 of 23 October 2020 determining, pursuant to Regulation (EU) No 517/2014 of the European Parliament and of the Council on fluorinated greenhouse gases, reference values for the period 1 January 2021 to 31 December 2023 for each producer or importer which has lawfully placed hydrofluorocarbons on the market in the Union from 1 January 2015
The Regulation lists the producers and importers who have lawfully placed hydrofluorocarbons on the market in the Union from 1 January 2015. The aim of the Regulation is to reduce the quantities of hydrofluorocarbons that can be placed on the Union market. Each producer or importer will be set a quota annually.
Council Decision (EU) 2020/1580 of 23 October 2020 amending Decision (EU) 2020/721 to include the position to be taken on behalf of the European Union within the International Maritime Organization’s Marine Environment Protection Committee during its 75th session and within the International Maritime Organization’s Maritime Safety Committee during its 102nd session as regards the approval of an MSC-MEPC.5 circular on a Model agreement for the authorization of recognized organizations acting on behalf of the Administration
The Marine Environment Protection Committee of the International Maritime Organization, during its 75th session to be held from 16 November 2020 to 20 November 2020 (‘MEPC 75’), is expected to approve the MSC-MEPC.5 circular jointly with the Maritime Safety Committee of the International Maritime Organization. The Decision expresses the Council’s approval of the circular.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020D1580&qid=1612274196456
Council Regulation (EU) 2020/1579 of 29 October 2020 fixing for 2021 the fishing opportunities for certain fish stocks and groups of fish stocks applicable in the Baltic Sea and amending Regulation (EU) 2020/123 as regards certain fishing opportunities in other waters
The Regulation fixes the fishing opportunities for certain fish stocks and groups of fish stocks in the Baltic Sea for 2021.
Commission opinion of 10 November 2020 relating to the plan for the disposal of radioactive waste arising from the Dessel Surface Repository located in Belgium (Only the French and Dutch texts are authentic) 2020/C 383/01
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020A1113%2801%29&qid=1612274196456
Commission Implementing Decision (EU) 2020/1675 of 11 November 2020 amending Implementing Decision (EU) 2016/2323 establishing the European List of ship recycling facilities pursuant to Regulation (EU) No 1257/2013 of the European Parliament and of the Council
This Decision amends the list of a ship recycling facilities. Article 6(2) of Regulation (EU) No. 1257/2013 requires ship owners to ensure that ships destined to be recycled are only recycled at ship recycling facilities included in the European List of ship recycling facilities published pursuant to Article 16 of that Regulation.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020D1675&qid=1612274196456
Commission Regulation (EU) 2020/1754 of 19 November 2020 establishing a fisheries closure for bigeye tuna in the Atlantic Ocean for vessels flying the flag of Portugal
The fishing quota allocated to Portugal for the stock of bigeye tuna in the Atlantic Ocean has been exhausted.
Regulation (EU) 2020/1781 of the European Parliament and of the Council of 25 November 2020 amending Regulation (EU) 2016/1139 as regards fishing capacity reduction in the Baltic Sea, and Regulation (EU) No 508/2014 as regards permanent cessation of fishing activities for fleets fishing for Eastern Baltic cod, Western Baltic cod and Western Baltic herring
The Baltic Multiannual Plan implemented by Regulation (EU) 2016/1139 established a multiannual plan for the stocks of cod, herring and sprat in the Baltic Sea. Many species and habitats in the Baltic sea are not in good condition. The goal is to implement the ecosystem-based approach to fisheries management to ensure that negative impacts of fishing activities on the marine ecosystem are minimised. The Regulation places further limits on fishing these stocks and provisions for permanent cessation of fishing activities.
Commission Decision (EU) 2020/1803 of 27 November 2020 establishing the EU Ecolabel criteria for printed paper, stationery paper, and paper carrier bag products
An EU Ecolabel are awarded to products which have reduced environmental impact during their entire lifecycle. The Regulation sets out the criteria for when an Ecolabel may be awarded to printed paper, stationary paper and paper carrier bags.
Commission Decision (EU) 2020/1804 of 27 November 2020 establishing the EU Ecolabel criteria for electronic displays
The term ‘electronic displays’ comprises televisions, monitors and digital signage. The Regulation sets out the criteria for when an Ecolabel may be awarded to electronic displays.
Council Decision (EU) 2020/1786 of 27 November 2020 on the conclusion of the Protocol on the implementation of the Agreement on a Sustainable Fisheries Partnership between the European Union and the Republic of Senegal
This Decision concerns the Agreement on a Sustainable Fisheries Partnership between the Union and the Republic of Senegal. The Union entered into the Agreement. The Agreement is to ensure that the parties work together to promote sustainable fishing, sound exploitation of fishery resources in Senegalese waters and for the Union to support Senegal’s effort to develop its fisheries sector.
Council Decision (EU) 2020/2000 of 27 November 2020 on the conclusion, on behalf of the European Union, of the Sustainable Fisheries Partnership Agreement between the European Union and the Republic of Seychelles and its implementing protocol (2020-2026)
The Union approved the Agreement on a Sustainable Fisheries Partnership between the Union and the Republic of Seychelles. The Agreement is to ensure that the parties work together to promote sustainable fishing, sound exploitation of fishery resources in the Seychelles fishing zone and Indian Ocean and for the Union to support in improving the working conditions in the Seychelles fishing industry.
Commission Implementing Decision (EU) 2020/2126 of 16 December 2020 on setting out the annual emission allocations of the Member States for the period from 2021 to 2030 pursuant to Regulation (EU) 2018/842 of the European Parliament and of the Council
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020D2126&qid=1612274196456
Commission Implementing Decision (EU) 2020/2125 of 16 December 2020 recognising the Government of Nunavut as a body that is authorised to issue documents attesting compliance with Regulation (EC) No 1007/2009 of the European Parliament and of the Council for placing seal products on the Union market
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020D2125&qid=1612274196456
Directive (EU) 2020/2184 of the European Parliament and of the Council of 16 December 2020 on the quality of water intended for human consumption (recast)
This Directive concerns the quality of water intended for human consumption for all in the Union. The objectives of this Directive are to protect human health from the adverse effects of any contamination of water intended for human consumption by ensuring that it is wholesome and clean and to improve access to water intended for human consumption.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020L2184&qid=1612274196456
Commission Implementing Regulation (EU) 2020/2151 of 17 December 2020 laying down rules on harmonised marking specifications on single-use plastic products listed in Part D of the Annex to Directive (EU) 2019/904 of the European Parliament and of the Council on the reduction of the impact of certain plastic products on the environment
The Regulation introduces a harmonised marketing criterion across a number of products including sanitary towels, wet wipes, tobacco products and beverage cups. The image to be added to these products informs the consumer of the presence of plastic in the product; of the waste disposal means to be avoided for that product; and the resulting negative impact of littering or other inappropriate means of waste disposal of the product on the environment.
Commission Implementing Regulation (EU) 2020/2196 of 17 December 2020 amending Regulation (EC) No 1235/2008 laying down detailed rules for implementation of Council Regulation (EC) No 834/2007 as regards the arrangements for imports of organic products from third countries
Annex II to Regulation 1235/2008 sets out a list of third countries whose systems of production and control measures for organic production of agricultural products are recognised as equivalent to EU standards. This implementing Regulation amends that list.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020R2196&qid=1612274196456
Council Decision (EU) 2021/2 of 17 December 2020 on the position to be taken on behalf of the European Union within the Joint Committee established by the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community as regards the adoption of a decision to amend the Protocol on Ireland/Northern Ireland
This decision provides for certain minor amendments to the Protocol on Ireland/Northern Ireland.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021D0002&qid=1612274196456
Commission Implementing Decision (EU) 2020/2182 of 18 December 2020 laying down the final import response on behalf of the Union concerning the future import of certain chemicals pursuant to Regulation (EU) No 649/2012 of the European Parliament and of the Council and amending the Commission Implementing Decision of 15 May 2014 adopting Union import decisions for certain chemicals pursuant to that Regulation
At its ninth meeting, held in Geneva from 29 April 2019 to 10 May 2019, the Conference of the Parties to the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade agreed to list certain chemicals in Annex III to the Convention with the effect that they became subject to the PIC procedure. A decision guidance document for each chemical was sent to the Commission on 16 September 2019 with a request for a decision regarding future import of the chemical.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020D2182&qid=1612274196456
Regulation (EU) 2020/2220 of the European Parliament and of the Council of 23 December 2020 laying down certain transitional’ provisions for support from the European Agricultural Fund for Rural Development (EAFRD) and from the European Agricultural Guarantee Fund (EAGF) in the years 2021 and 2022 and amending Regulations (EU) No 1305/2013, (EU) No 1306/2013 and (EU) No 1307/2013 as regards resources and application in the years 2021 and 2022 and Regulation (EU) No 1308/2013 as regards resources and the distribution of such support in respect of the years 2021 and 2022
This Regulation seeks to provide Member States with sufficient time to prepare their respective common agricultural policy strategic plans as well as facilitate the creation of administrative structures necessary for successful implementation of the new legal framework, in particular by allowing for an increase in technical assistance.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020R2220&qid=1612274080666
DOMESTIC CASE LAW
Water
Bernel Ltd v Canal and River Trust [2021] EWHC 16 (Ch)
The claimant sought a declaration that it had the right to discharge surface water and treated sewage into a pipe which ran across its land (a development site) and discharged onto neighbour’s land. The issues were (1) whether the pipe was a natural watercourse, conferring riparian rights on the claimant; (2) the nature of any such riparian rights; and (3) whether the claimant had a prescriptive right to discharge treated effluent and surface water into the pipe. Judgment was given for the defendant. The pipe was a drain or sewer rather than a culverted natural watercourse and therefore the developer had no riparian rights, and nor had it acquired a prescriptive drainage right by way of easement.
Anglian Water Services Ltd v Environment Agency [2020] EWHC 3544 (Admin)
The statutory water and sewerage undertaker for Lincolnshire sought judicial review of a 2019 decision by the Environment Agency to classify the water quality at three beaches (beaches A, B and C) in the county as ‘good’. The application was granted and the court held that when assessing water samples for the purpose of classifying bathing water quality under the Bathing Water Regulations 2013, the Environment Agency could disregard samples taken during an ‘abnormal situation’, as defined by Regulation 2(1), by treating sampling as having been suspended while that situation pertained, if that was necessary to arrive at a realistic classification.
Environmental Information
Pinkerton v Information Commissioner [2020] 12 WLUK 465
The appellant appealed against the Information Commissioner’s decision that a local authority was entitled to rely on the Environmental Information Regulations 2004 Part 3 Regulation 12(5)(b) to withhold information which an appellant had requested in relation to the issue of an abatement notice for odour nuisance on his farm. The Appeal was dismissed. The Information Commissioner had not erred in upholding the local authority’s decision to withhold information. The local authority had been entitled to rely on the exception to disclosure in the Environmental Information Regulations 2004 Part 3 Regulation 12(5)(b).
Environmental Impact Assessment
R (on the application of Finch) v Surrey CC [2020] EWHC 3566 (Admin)
The claimant sought judicial review of the defendant local authority’s decision to grant planning permission to retain and expand an existing oil well site and to drill four new oil wells for the production of hydrocarbons over a 25-year period. The application was refused. The court held that a developer’s obligation, under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017, to provide an environmental statement describing the likely significant effects of a development, both direct and indirect, did not require an assessment of the greenhouse gas emissions resulting from the use of an end product said to have originated from that development.
Climate Change
R (on the application of Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52
Heathrow Airport appealed against a decision by the Court of Appeal that the secretary of state’s designation of the Government’s Airports National Policy Statement favouring the development of a third runway at the airport was unlawful because the Secretary of State for Transport had failed to adequately consider the United Nations Framework Convention on Climate Change (the Paris Agreement). The Appeal was allowed. The Supreme Court held that the secretary of state had taken the Paris Agreement into account and lawfully exercised his discretion as to how much weight to attribute to it. The court construed the Planning Act 2008 Part 2 section 5(8), particularly the phrase ‘Government policy’, to ensure that the provision was able to operate sensibly.
Energy
Havant Biogas Ltd v Gas and Electricity Markets Authority [2021] EWHC 84 (Admin)
Four special purpose vehicle companies that had applied to participate in the ‘Renewable Heat Incentive’, a green energy subsidy scheme, established that OFGEM had been wrong to refuse to register them as producers of biomethane for injection. A subsequent statutory review upholding the refusal was vitiated by public law errors. The court granted the application and considered the compatibility of OFGEM’s actions with applicable public law standards and interpreted various provisions of the Renewable Heat Incentive Scheme Regulations 2011 and the Renewable Heat Incentive Scheme Regulations 2018.
R (on the application of ClientEarth) v Secretary of State for Business, Energy and Industrial Strategy [2021] EWCA Civ 43
An environmental law charity appealed against the dismissal of its claim for judicial review of the first respondent secretary of state’s decision to grant a development consent order (DCO) for a nationally significant infrastructure project involving the construction and operation of two gas-fired generating units. The appeal was dismissed. In granting the DCO, the Secretary of State for Business, Energy and Industrial Strategy had not misinterpreted the Overarching National Policy Statement for Energy (EN-1) in her approach to the assessment of ‘need’. Determination of individual applications under the policy did not require a general assessment of need in quantitative terms.
Waste
Durham Co Ltd (t/a Max Recycle) v Durham CC [2020] EWHC 3200 (Ch)
A company which provided commercial waste services had no real prospect of succeeding in a claim that a local authority had breached state aid rules in the TFEU Articles 107 and 108 by providing commercial waste collection services at reduced prices, which it had been able to do because it was subsidised by the household waste collection service largely funded by council tax.
Safety-Kleen UK Ltd v Environment Agency [2020] EWHC 3147 (Admin)
The claimant applied for judicial review of a decision of the Environment Agency regarding the point at which used kerosene supplied to its customers became ‘waste’ within the meaning of Directive 2008/98 Article 3. The application was refused. The High Court upheld a decision of the Environment Agency that used kerosene collected by a company from its customers after a specialised cleaning process was classified as ‘waste’, within the meaning of Directive 2008/98 Article 3, from the point at which it was collected and not at the later time when it was placed in tanks to be cleaned for reuse. The fact that it was used to rinse out the drums in which it was removed from the customers before being moved to the tanks was subordinate to the customers’ use of the kerosene and did not alter the fact that it had been discarded by the customer at the time of collection.
Nuisance
McGill v Stewart [2020] EWHC 3387 (QB)
The court construed the nature and extent of the grant of a right of way over an access lane to residential properties. Access for repairs, deliveries and for all the usual access needed for maintenance and use of a property as a private dwelling were necessary and consistent with the grant and the wording of the deed. However, use for purposes which were not necessary for continued use of the dwelling as a dwelling, such as significant improvements and new construction, were not implicitly within it.
Sentencing
R (on the application of Environment Agency) v Lawrence [2020] EWCA Crim 1465
The offender (L) appealed against concurrent sentences of 9 months’ imprisonment, suspended for 24 months, with a 180-hour unpaid work requirement imposed after he pleaded guilty to being the officer of a company which committed an offence contrary to the Environmental Permitting (England and Wales) Regulations 2010 Part 4 Regulation 38(2) and Regulation 41(1) (count 3) and contrary to the Environmental Protection Act 1990 section 33(1), section 33(6) and section 157 (count 4). The appeal was dismissed. The court held that those who committed environmental offences should not think that multiple aspects of their wrongdoing, however grave, would receive no punishment simply because they all fell within one category of harm under the sentencing guidelines. It was not the Sentencing Council’s intention to so limit or constrain the duty of the judge in assessing the features of the case before them. Further, the guidelines were not subject to the Environment Agency’s Common Incident Classification Scheme, which was not an instrument designed to address sentencing by the criminal courts.
EU CASE LAW
Repsol Petroleo SA v Administracion General del Estado (2020), Case C-44/19, 3 December 2020
This request for a preliminary ruling concerns the interpretation of Article 21(3) of Council Directive 2003/96/EC restructuring the Community framework for the taxation of energy products and electricity. The court ruled that the first sentence of Article 21(3) of the Directive must be interpreted as meaning that, where an establishment producing energy products intended for use as motor fuel or as heating fuel consumes energy products which it has itself produced and that, by that process, also inevitably obtains non-energy products from which economic value is derived, the portion of the consumption leading to the production of such non-energy products does not fall within the exemption. The court was concerned that to hold otherwise may cause an adverse effect on the proper functioning of the internal market in the energy sector, which would clearly be in conflict with the very purpose of the Directive. It found that it was irrelevant that the production of non-energy products was residual and inevitable. The court also rejected the argument that being unable to benefit from the exemption would lead to a situation of double taxation.
Region de Bruxelles-Capitale v European Commission (2020), Case C-352/19 P, 3 December 2020
Region de Bruxelles-Capitale sought to bring an action for annulment of Regulation 2017/2324 renewing the approval of the active substance ‘glyphosate’. The court examined whether the Brussels Capital Region was directly concerned by that act and ruled, that that condition was not satisfied. Brussels Capital Region alleged a failure to have regard to the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed in Aarhus on 25 June 1998. The court found that Article 9 of the Aarhus Convention cannot have the effect of modifying the conditions of admissibility of actions for annulment laid down in Article 263 TFEU as international agreements cannot prevail over EU primary law. The second ground of appeal alleged that the General Court erred in finding that Brussels Capital Region was not directly affected by the act at issue. The court dismissed this ground highlighting that one of the two cumulative conditions for establishing that a measure directly affects an individual is that it leaves no discretion to the addressees of that measure who are entrusted with the task of implementing it. However, when determining applications for authorisation to place on the market a plant protection product, Member States are given discretion to take account of circumstances in their territory by virtue of Article 41(1) of Regulation No. 1107/2009.
CONSULTATIONS
NEWS AND MISCELLANEOUS
Climate
Could Covid lockdown have helped save the planet? Guardian, 29 December 2020
Experts say the pandemic may have made some environmental problems worse, though there is still a narrow window of opportunity for something good to come from something bad if governments use their economic stimulus packages to promote a green recovery.
www.theguardian.com/world/2020/dec/29/could-covid-lockdown-have-helped-save-the-planet
Plastic Waste
New rules to tackle ‘wild west’ of plastic waste dumped on poorer countries. Guardian, 29 December 2020
It is hoped that a new international rules to stop richer countries exporting contaminated material for recycling could mean a cleaner ocean in 5 years. New rules under an amendment to the Basel Convention introduce a system of ‘prior informed consent’ for all exports of difficult-to-recycle or contaminated plastic. This will allow developing nations to refuse low quality, difficult to recycle waste before it is shipped.
Air Pollution
Inquest finds air pollution a factor in girl’s death. BBC News, 16 December 2020
After a 2-week inquest, Southwark Coroner’s Court found that air pollution ‘made a material contribution’ to the death of a 9-year-old child. In a landmark ruling, the inquest found that levels of nitrogen dioxide (NO2) near the child’s home exceeded World Health Organization and European Union guidelines.
Planning
‘Green Belt’. House of Commons Library
This government briefing paper explores some of the recent concern and controversy about land known as the Green Belt. The paper examines the fundamental aim of Green Belt policy to prevent urban sprawl and competing tensions regarding its future.
https://commonslibrary.parliament.uk/research-briefings/sn00934/
Energy
‘Energy Policy: an overview’. House of Commons Library
This government briefing paper published 22 December 2020 provides a timeline of significant developments in UK energy policy and sets out the basis for current energy policy. It also provides summaries of previous briefing papers in this area.
https://commonslibrary.parliament.uk/research-briefings/cbp-8980/