Abstract
EDITORIAL
Amidst what was a plethora of resignations and subsequent appointments (many times over) and a virtual rotating door of Prime Ministers it is surprising that any meaningful work was done in respect of the environment. Amidst what can at best be termed a chaotic and confused rotation of Prime Ministers over the summer period there was a somewhat surprising amount of work undertaken in respect of the environment. Various Private Member Bills dealing with everything from clean air to animal welfare progressed in addition to the Government's Animal Welfare (Kept Animals) Bill, are currently at the report stage.
A number of new consultations opened over the summer period with particular focus remaining on issues connected to the Government's Net Zero Strategy. The Economic Affairs Committee made various recommendations on the steps needed to achieve net zero by 2050 in addition to ensuring energy price stability and security.
Unsurprisingly, the High Court saw another application for an interim injunction against protestors. In High Speed Two (HS2) Ltd v Persons Unknown the High Court granted a precautionary injunction to restrain named and unnamed defendants from trespassing and causing nuisance on and around land on which HS2 was being constructed. The Environmental Agency's refusal to expand their investigations in the effect of groundwater abstraction from wetlands across the Norfolk Broads was found to be unlawful by the High Court in Harris v Environment Agency. The refusal was found to constitute a breach of both the requirement under article 6(2) of Directive 92/43 and obligations under regulation 9(3) of the Conservation of Habitats and Species Regulations 2017. Subsequently, the Court ordered the Environment Agency to disclose the measures intended to be taken in order to achieve urgent compliance with its duties under Article 6(2) of the Directive; the Court refrained from ordering compliance with the plan noting that failure to comply with the Directive/Regulations would likely results in further proceedings being brought.
Read on for more updates.
Environmental Law Review
2022
Anna McClean
Verity LJ Adams, Michael Haywood and Sarah Ismail
EU LEGISLATION AND TEXTS
Commission Implementing Decision (EU) 2022/1655 of 26 September 2022 recognising the report including information on the typical greenhouse gas emissions from the cultivation of soybean in Argentina under Article 31(3) and (4) of Directive (EU) 2018/2001 of the European Parliament and of the Council
Directive (EU) 2018/2001 sets out that biofuels, bioliquids, and biomass fuels have to save significant greenhouse gas emissions compared to fossil fuels so that they can be counted towards the targets set in that Directive. For this purpose, Article 29(10) sets specific emission savings thresholds for those fuels, and Article 31 regulates how to calculate the greenhouse gas emission savings from their use. When making those calculations, it is possible to use the default values set out in Annexes V and VI to Directive (EU) 2018/2001. Instead of the default values of greenhouse gas emissions from the cultivation of agricultural raw materials, it is possible to use typical values under some conditions. These typical values, representing the average value in a specific area, may be reported to the Commission by Member States or third countries. The typical values may only be used if the Commission recognises them to be accurate.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32022D1655&qid=1666536011124
Commission Implementing Decision (EU) 2022/1656 of 26 September 2022 on recognition of the Austrian agricultural certification scheme (AACS) for demonstrating compliance with the requirements set in Directive (EU) 2018/2001 of the European Parliament and of the Council for biofuels, bioliquids, biomass fuels, renewable liquid and gaseous fuels of non-biological origin and recycled carbon fuels (Text with EEA relevance)
Directive (EU) 2018/2001 establishes requirements for biofuels, bioliquids, biomass fuels, renewable liquid and gaseous fuels of non-biological origin and recycled carbon fuels, in order to ensure that they can be counted towards the targets set in that Directive only if they have been sustainably produced and save significant greenhouse gas emissions in comparison to fossil fuels. Article 29 of Directive (EU) 2018/2001 lays down sustainability and greenhouse gas emissions saving criteria for biofuels, bioliquids, and biomass fuels, and Article 26 of that Directive and Commission Delegated Regulation (EU) 2019/807 (2) establish the criteria for determining:
- which feedstock for biofuels, bioliquids or biomass fuels has high indirect land-use change risk, and - which high indirect land-use change-risk biofuels, bioliquids or biomass fuels that meet certain conditions can be certified as having low indirect land-use change risk.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32022D1656&qid=1666536011124
Council Decision (EU) 2022/1850 of 20 September 2022 on the position to be taken on behalf of the European Union at the eighth session of the Meeting of the Parties to the Agreement on the Conservation of African-Eurasian Migratory Waterbirds with regard to certain amendments to Annex 3 to the Agreement
The Union shall approve the amendments to Annex 3 to the Agreement submitted by the United Kingdom and set out in draft Resolution 8.2 of the eighth session of the Meeting of the Parties to the Agreement concerning the following five species: Greylag Goose – Anser anser, Red-crested Pochard – Netta rufina, Grey Plover – Pluvialis squatarola squatarola, Eurasian Oystercatcher – Haematopus ostralegus longipes, and Bean Goose, Taiga Bean Goose – Anser fabalis fabalis.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32022D1850&qid=1666536011124
Commission Implementing Decision (EU) 2022/1979 of 31 August 2022 on establishing the form and databases for communicating the information referred to in Articles 18(1) and 21(3) of Directive 2012/18/EU of the European Parliament and of the Council on the control of major-accident hazards involving dangerous substances and repealing Commission Implementing Decision 2014/895/EU (notified under document C(2022) 6124) (Text with EEA relevance)
In accordance with Article 18(1) of Directive 2012/18/EU, Member States are to inform the Commission of the major accidents which have occurred within their territory, and which fulfil the criteria of Annex VI to this Directive, using the specific form set out in the Annex to Commission Decision 2009/10/EC.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32022D1979&qid=1666536011124
Commission Implementing Decision (EU) 2022/1307 of 22 July 2022 establishing a watch list of substances for Union-wide monitoring in the field of water policy pursuant to Directive 2008/105/EC of the European Parliament and of the Council (notified under document C(2022) 5098) (Text with EEA relevance)
Article 8b(1) of Directive 2008/105/EC provides for the establishment of a watch list of substances for which Union-wide monitoring data are to be gathered for the purpose of supporting future prioritisation exercises in accordance with Article 16(2) of Directive 2000/60/EC of the European Parliament and of the Council. The first such watch list was to include an indication of the monitoring matrices and possible methods of analysis not entailing excessive costs for each substance.
The substances in the watch list are to be selected from amongst those for which the information available indicates that they may pose a significant risk, at Union level, to or via the aquatic environment, but for which monitoring data are insufficient to come to a conclusion on the actual risk posed. Highly toxic substances, used in many Member States and discharged to the aquatic environment but not or rarely monitored, should be considered for inclusion in the watch list. That selection process should take into account information as itemised in Article 8b(1), points (a) to (e), of Directive 2008/105/EC, giving particular consideration to emerging pollutants.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32022D1307&qid=1666536011124
Commission Decision (EU) 2022/1244 of 13 July 2022 establishing the EU Ecolabel criteria for growing media and soil improvers (notified under document C(2022) 4758)
This Decision sets out a new set of criteria for growing media and soil improvers. The new criteria and related assessment and verification requirements should remain valid until 30 June 2030, taking into account the innovation cycle for the product group.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32022D1244&qid=1666536011124
Commission Implementing Regulation (EU) 2022/1203 of 12 July 2022 amending Implementing Regulation (EU) 2016/1141 to update the list of invasive alien species of Union concern
Commission Implementing Regulation (EU) 2016/1141 (2) establishes a list of invasive alien species of Union concern (‘the Union list’), which is to be kept updated as appropriate, in accordance with Article 4(2) of Regulation (EU) No 1143/2014.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32022R1203&qid=1666536011124
Commission Decision (EU) 2022/1229 of 11 July 2022 amending Decisions 2014/312/EU, 2014/391/EU, 2014/763/EU, (EU) 2016/1332 and (EU) 2017/176 as regards the period of validity of the EU Ecolabel criteria and of the related assessment and verification requirements (notified under document C(2022)4739)
Regulation (EC) No 66/2010 provides that the EU Ecolabel may be awarded to products with a reduced environmental impact during their entire life cycle. Specific EU Ecolabel criteria are to be established for each product group.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32022D1229&qid=1666536011124
Commission Regulation (EU) 2022/1379 of 5 July 2022 amending Regulation (EU) 2017/2400 as regards the determination of the CO2 emissions and fuel consumption of medium and heavy lorries and heavy buses and to introduce electric vehicles and other new technologies
This Regulation complements the legal framework for the type-approval of motor vehicles and engines with regard to emissions established by Regulation (EU) No 582/2011 by laying down the rules for issuing licences to operate a simulation tool with a view to determining CO2 emissions and fuel consumption of new vehicles to be sold, registered or put into service in the Union and for operating that simulation tool and declaring the CO2 emissions and fuel consumption values thus determined.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32022R1379&qid=1666536011124
DOMESTIC CASE LAW
Water
Harris v Environment Agency [2022] EWHC 2264 (Admin)
The claimants applied for judicial review of the Environment Agency's refusal to expand the investigation into the effect of groundwater abstraction from wetland sites across the Norfolk Broads. The court held that by limiting its investigations into the impact of water abstraction licences to three sites in a special area of conservation on the Norfolk Broads the Environment Agency had acted unlawfully. The refusal to consider the effects on the entire special area of conservation constituted a breach of the requirement under art.6(2) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora to avoid the deterioration of protected habitats and disturbance of protected species in special areas of conservation. The court also held that it breached the Environment Agency's obligations under reg.9(3) of the Conservation of Habitats and Species Regulations 2017 to have regard to those obligations. The court held that art.6 of Directive 92/43 remained enforceable in the UK courts, notwithstanding the UK's withdrawal from the EU, because the obligations under it had been recognised in cases decided prior to the UK leaving the EU and therefore met the test in s.4(2)(b) of the European Union (Withdrawal) Act 2018.
Harris & Anor v Environment Agency [2022] EWHC 2264 (Admin) (06 September 2022) (bailii.org)
Harris v Environment Agency [2022] EWHC 2606 (Admin)
The claimants had succeeded in a claim against the Environment Agency that it had acted unlawfully by limiting its investigation into the impact of water abstraction licences to three sites in a special area of conservation on the Norfolk Broads. The remedy sought by the claimant was an order that the Environment Agency publish full details of the measures it intended to take in order to achieve urgent compliance with its duties under Art. 6(2) of the Habitats Directive, deadlines for the measures, and an explanation of the scientific and technical basis of the measures. The Environment Agency resisted the order, arguing that the judgment provided sufficient remedy, no further order was required, and the claimant's proposed order went beyond the court's functions by applying a programme of supervision and compliance with its statutory duties. The court rejected the Environment Agency's argument. It held that whilst the Environment Agency has a choice as to how it discharges its obligations, it has no choice about whether it discharges it and in order to discharge it will need to formulate a plan. Making an order that the Environment Agency formulates a plan does not involve the court stepping into the shoes of the Environment Agency and making decisions that are for the Environment Agency, not the court, to make. The court ordered the Environment Agency to disclose the plan to the claimant, but it did not order the Environment Agency to publish it, stating that the claimant could publish it after it had been disclosed to them if they wished. The court also held that it was not necessary to order the Environment Agency to comply with the plan in order for the remedy to be effective. Failure by the Environment Agency to comply with the Habitats Regulations would be likely to result in the claimant bringing further proceedings to secure that end.
Harris & Anor v The Environment Agency [2022] EWHC 2606 (Admin) (18 October 2022) (bailii.org)
Planning law
R (oao James Noble and Helen Tayton-Martin) v Cornwall Council [2022] EWHC 2402 (Admin)
The claimants sought judicial review of Cornwall Council's decision to grant conditional planning permission for an extension of buildings at a golf and country club which lies in an AONB and designated Heritage Coast. The claimants’ grounds were that the Council had breached its duty under s.38(6) of the Planning and Compulsory Purchase Act 2004 as the planning officer had failed to address the question of whether the proposal was in accordance with the policies in the development plan relating to AONBs and Heritage Coast. They also argued that the Council had erred in law in relation to the question of whether the proposed development constituted an intensification of use. The court held that it was clear from the officer's report that she determined that the application did not involve any departure from the development plan, had considered all the relevant policies, and the reasoning in the officer's report was proportionate to the nature of the application, including in relation to intensification.
Noble & Anor, R (On the Application Of) v Cornwall Council [2022] EWHC 2402 (Admin) (28 September 2022) (bailii.org)
Worthing BC v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 2044 (Admin)
Worthing BC applied under s.288 of the Town and Country Planning Act 1990 to quash a planning inspector's decision to grant outline planning permission for a mixed-use development that lay close to the South Downs National Park. The court found that the planning inspector had erred in granting the outline planning permission as he had failed to (i) assess the proposed development against the relevant policies in the emerging development plan, (ii) give weight to the adverse impacts of the development on the views from the National Park, and (iii) properly discharge the duty under s.111A of the National Parks and Access to the Countryside Act 1949 to have regard to the purpose for which the National Park was designated.
Worthing Borough Council v Secretary of State for Levelling Up, Housing And Communities & Anor [2022] EWHC 2044 (Admin) (01 August 2022) (bailii.org)
Waste
Barr Environmental Limited v Revenue Scotland [2022] 8 WLUK 229
This case concerned the interpretation of reg.12(4) of the Scottish Landfill Tax (Administration) Regulations 2015. The court held that the obligation to maintain a record and provide information relating to ‘all material’ in reg,12(4) covers both waste and site-won material and is not restricted to taxable materials.
Environmental damage
Armstrong Aggregates Ltd v Natural England [2022] EWHC 2009 (Admin)
The claimant, a quarry operator, issued a claim under Part 8 of the Civil Procedure Rules seeking the court's determination as to the applicability of the Environmental Damage (Prevention and Remediation) (England) Regulations 2015 to certain quarries and the lawfulness of taking action under those Regulations in light of Protocol 1, art.1 of the European Convention on Human Rights right to protection of property. The claimant argued that the Regulations did not apply to a quarry within an SSSI with an extant planning permission to which the review of old mineral permissions regime under the Environment Act 1995 applied. They also argued that regulatory intervention would breach its rights under Protocol 1, art.1 ECHR. The court held that a declaration of incompatibility pursuant to a Part 8 claim would only arise where the primary legislation pursuant to which the Regulations were made prevented the removal of any incompatibility. If compatibility could not be achieved by applying the Regulations alongside the defendant's public law duties under s.6 of the Human Rights Act 1998 or by interpreting them in accordance with s.3 of the Act, the matter would be one of invalidity. A quashing order was a judicial review remedy and could not be sought in a Part 8 claim. The court struck out the Part 8 claim as an abuse of process.
Armstrongs Aggregates Ltd v Natural England [2022] EWHC 2009 (Admin) (28 July 2022) (bailii.org)
Nuisance
High Speed Two (HS2) Ltd v Persons Unknown [2022] EWHC 2360 (KB)
The claimant applied for an interim injunction to restrain trespass and nuisance by a large number of defendants who were opposed to the construction of the High Speed Two railway line between London and northern England. The claimant's case was that the protestors had trespassed on HS2 land and caused a nuisance by disrupting works and obstructing roads and would continue to do so unless restrained by an injunction. The court held that it was appropriate to grant a precautionary injunction to restrain named and unnamed defendants from trespassing and causing a nuisance on and around land on which HS2 was being constructed. The claimant, as the nominated undertaker responsible for the construction of HS2, had sufficient title to the land to bring a trespass action. It was appropriate to grant the injunction against ‘persons unknown’ because the protestors were a rolling and evolving group with an unknown and fluctuating body of potential defendants and the claimant had defined the unknown defendants by reference to the forms of activity to be restrained. The court also held that although the terms of the injunction would interfere with the lawful right to protest against the HS2 project, the interference was justified and therefore did not breach art.10 and art.11 of the European Convention on Human Rights.
High Speed Two (HS2) Ltd & Anor v Four Categories of Persons Unknown & Ors [2022] EWHC 2360 (KB) (20 September 2022) (bailii.org)
Ray v Windrush Riverside Properties Ltd [2022] EWHC 2210 (TCC)
The claimant, owner of a holiday let marketed as an eco-friendly retreat with a tranquil fresh-air garden, sought damages from the defendant in respect of alleged nuisance in the form of noise and odour from the defendant's neighbouring fish and chip shop. They claimed that the noise and cooking smells interfered with the use and enjoyment of their property to such an extent that they were unable to market it as a holiday let. The court held that the claimant had failed to establish that the noise and odours emanating from the fish and chip shop constituted a private nuisance. The court held that the location of the claimant's property on the high street of a busy tourist town was inconsistent with the meditative retreat the claimant wished to provide and it was unreasonable to expect to be able to do so free from the any impact from the operations of the neighbouring business.
Ray v Windrush Riverside Properties Ltd [2022] EWHC 2210 (TCC) (23 August 2022) (bailii.org)
EU CASE LAW
ET v Ministry of the Environment, Czech Republic, Case C-659/20, 8 September 2022
The Court ruled that Article 1(3) of Commission Regulation (EC) No 865/2006 of 4 May 2006 laying down detailed rules concerning the implementation of Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein must be interpreted as meaning that: the concept of ‘breeding stock’, within the meaning of that provision, does not include the ancestors of specimens bred in a breeding operation which have never been owned or kept by that operation.
The Court also found that Article 54(2) of Regulation No 865/2006, read in conjunction with Article 17 of the Charter of Fundamental Rights of the European Union and the principle of protection of legitimate expectations must be interpreted as: precluding a specimen, kept by a breeder, of a species of animal referred to in Annex A to Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein, from being regarded as having been born and bred in captivity, within the meaning of Article 8(3) of that regulation, where the ancestors of that specimen, which do not form part of the breeding stock of that breeder, were acquired by a third party before the entry into force of those regulations in a manner which is detrimental to the survival of the species concerned in the wild.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62020CJ0659&qid=1666531625553
CONSULTATIONS
NEWS AND MISCELLANEOUS
“Water meters should be compulsory and bills should rise, says new Environment Agency chairman”, The Daily Telegraph, 11 October 2022
Water meters should be made compulsory and bills should rise to help households cut their use and tackle looming supply shortages, the new chairman of the Environment Agency (EA) has said.
“Impact of heat exposure cost UK six million potential working hours”, The Daily Telegraph, 26 October 2022
Industries with exposed workers lost an estimated £94 million in 2021, according to the Lancet Countdown after six million potential labour hours were lost due to heat exposure (see the Lancet Countdown: https://www.lancetcountdown.org/2022-report/).
“FCA proposes new rules to tackle greenwashing”, The Insider, 25 October 2022
In a bid to clamp down on greenwashing, the Financial Conduct Authority (FCA) is proposing a package of new measures including investment product sustainability labels and restrictions on how terms like ESG, green or sustainable can be used. The measures are among several potential new rules aimed at protecting consumers and improving trust in sustainable investment products.
https://www.insider.co.uk/news/fca-proposes-new-rules-tackle-28322181
“Greta Thunberg: “Our politicians will not come to the rescue of planet Earth””, The New Statesman, 19 October 2019
Confronted by the existential threat of climate change, the world's political leaders are in denial, actively delaying change and distracting the electorate. Rather than coming together to combat the crisis, the global community is fragmenting as wars are waged and great powers compete for control over scarce resources and territory.
“Brazilian court world's first to recognise Paris Agreement as human rights treaty”, Climate Home News, 7 July 2022
Brazil's Supreme Court has become the first in the world to recognise the Paris Agreement as a human rights treaty – a move with significant implications for national and international law. The declaration was made as part of the court's first climate change ruling, which ordered the Brazilian government to fully reactivate its national climate fund.
“‘Brexit Freedoms Bill’ threatens hundreds of environmental safeguards, campaigners warn”, The Independent, 25 October 2022.
The Retained EU Law Bill, dubbed the ‘Brexit Freedoms Bill,’ could revoke hundreds of laws that protect wild places and ensure standards for water quality, pollution, and the use of pesticides, according to the Wildlife Trusts and other nature charities.
“HS2 wins route-length High Court injunction”, BBC News, 20 September 2022
HS2 Ltd has been granted an “extensive” injunction along the length of the high-speed line from London to Crewe to help tackle unlawful protests. The order makes going onto HS2 land without permission or disrupting work a potential contempt of court - the offence of ignoring a judge's ruling. It will not only apply to identified protestors but to “persons unknown”.
“Southampton targeted for illegal waste exports”, Gov.uk, 18 August 2022
A former company director has been fined for exporting banned household waste from Southampton. The illegal cargo bound for Indonesia in 2019 included nappies, clothing, textiles, tins and electrical items sent from a site in Worcestershire.
“Architect of Paris Agreement Discusses Nexus of Law and Climate Change”, Yale School of the Environment, 27 September 2022
At a recent conversation hosted by the Yale Environmental Dialogue and Yale Law School, former French Prime Minister Laurent Fabius explained the “unprecedented” legal challenges surrounding the climate crisis and called on nations to “urgently” fulfil their obligations set by the Paris Agreement.
“UK environment laws under threat in ‘deregulatory free-for-all’”, The Guardian, 23 September 2022
Hundreds of Britain's environmental laws covering water quality, sewage pollution, clean air, habitat protections and the use of pesticides are lined up for removal from UK law under a government bill.