Environmental news round up - 4 August 2023

Climate Change Litigation On the Increase

According to the “Global Climate Litigation Report 2023” recently published by the United Nations Environmental Programme (UNEP) climate change litigation has more than doubled since 2017 and is now a key tool in delivering climate justice.

Climate change litigation refers to legal actions taken to address and seek accountability for the impacts of climate change either through bringing actions against governments, corporations or other entities for their role in contributing to climate change or failing to take sufficient action to address its consequences.

Some of the main drivers for the increase in cases being brought are:

• Growing recognition of the urgency and severity of the climate crisis;
• Failure of government action to implement policies and taken action related to climate change litigation and adaption
• Corporate accountability with fossil fuel companies and other corporations seen as major contributors to greenhouse gas emissions or being accused of withholding information in relation to climate risk and an end to greenwashing;
• Human rights and environmental justice as climate change increasingly impacts disproportionately on vulnerable communities leading to human rights violations;
• Advances in climate science with attribution studies linking specific climate impacts to human activities have strengthened the basis of legal claims against greenhouse gas emitters.

The UNEP report highlights some notable key decisions made by the courts such as Germany’s court striking down part of the Federal Climate Protection Act as incompatible with the rights to life and health and a court in Paris holding that France’s climate inaction and failure to meet its carbon budget goals have caused climate related ecological disasters and a Dutch court ordering Shell to comply with the Paris Agreement and reduce its carbon dioxide emissions by 45% from 2019 levels by 2030. This was the first time a court has found that a private company has a duty under the Paris Agreement. The case brought against the UK government by Client Earth, the Good Law Project and Friends of the Earth for failing to comply with its legal duties under the Climate Change Act 2008 when approving its Net Zero Strategy was also mentioned. Future trends on the horizon are a rise in the number of cases dealing with climate migration, cases brought by Indigenous peoples, local communities and other groups that are disproportionately affected by climate change.

Another analysis of climate change litigation undertaken by the Grantham Research Institute highlighted in its Report “Global Trends in Climate Change Litigation 2023 Snapshot” has noted that the whilst the number of climate change litigation cases is still growing the rate of growth is slowing. However it has found that the diversity of the cases is expanding. Other key findings of its report are that more cases are being filed against corporate actors and with an increasing range of complex legal arguments; Around 20 cases filed in the United States against the Carbon Majors are now likely to go to trial and furthermore it has found that there has been a growth in ‘climate-washing’ cases which challenge the accuracy of green claims and commitments. Challenges to the climate policy response of governments and companies have grown significantly in number outside the United States.

The increase in climate change litigation certainly highlights the role of the legal system as a tool to hold accountable those contributing to climate change and to seek remedies for the impacts of climate change.

Energy and the route to net zero or the route to nowhere?

The energy sector has had a lot of press recently as we simultaneously strive for energy security and greener (cleaner) energy. 

Monday saw the announcement by the Prime Minister that hundreds of new oil and gas licences will be granted, this relying on the statistic that domestic gas production has around one-quarter the carbon footprint of imported liquified gas.  Given that 80%of our domestic gas is exported due to international trading relationships, this seems a tenuous statistic.  Whilst writing this activists from Greenpeace have protested against this decision at the Prime Minister’s Yorkshire home.  This laying down the rather black gauntlet of challenge which may see the decision for the licences challenged through the Courts – especially bearing in mind that the Paris Agreement and our Net Zero Commitment are both legally binding agreements and targets!

What was optimistic however was the announcement of the carbon capture plant at Peterhead and Viking in Humberside. The Prime Minister also announced in his speech in Scotland that Acorn Project in Aberdeenshire will be another carbon capture project to receive a part of £20bn funding from the government – after controversially missing out on the funding in 2021 to two other English projects. This is the kind of progressive investment which is needed to ensure that we push back the date for world overshoot day each year.  Hopefully it is not used to keep the current status quo.

Another good announcement has come from the Energy Security Secretary who has ledged £22 million uplift for flagship renewables schemes via the contracts for difference scheme.  This together with the increase in funding auctions to be on a yearly basis will hopefully boost confidence in the renewables sector which is once again competing against oil and gas for grid parity and investment.

Retained EU Law Bill gains Royal Assent – OEP concerns on environmental protections

A reminder that the Retained EU Law Bill is now an Act of Parliament. The Chair of the Office for Environmental Protected wrote to Therese Coffey, Secretary of State for the Environment, to ask that environmental protected are not reversed as a result of this. Their correspondence can be read here.

Biodiversity getting real!

November 2023 sees the biodiversity net gain (BNG) targets become mandatory for most sites with smaller sites given more time to adjust and NSIP’s coming in line in 2025, there are many people in DEFRA, Natural England, LPA’s and the development and environment sectors preparing for this time.  So it is with welcome relief that DEFRA has announced various measures to help the smooth transition.

If you haven’t listened to Nick White from Natural England on the ENDS report Eco Chamber podcast – then you should it is a must listen to gain the insights of Nick and his team’s strategy. endsreport.com/article/1831425/ulez-roadblocks-nutrients-overload-plus-interview-natural-englands-net-gain-tsar

DEFRA is also writing a blog biodiversity net gain - Natural England (blog.gov.uk) and this has provided updates as to statutory credits, local council funding and who are the responsible bodies.

Credits

Statutory credits should be seen as a last resort for developers and landowners to meet the BNG target, but these could be critical in bringing forward develpments on constricted sites.  Now these groups will be able to purchase credits using the credit sales services.  So far the prices are only indicative, but they at least give guidance as to what we can expect in November. The prices can be found her Statutory biodiversity credit prices - GOV.UK (www.gov.uk) but they range from £42,000 for Tier A1 low, medium and high habitat distinctiveness to £650,000 for Tier A5 lakes.

The funding from the credits will be used for the scheme with any surplus being used for habitat delivery in England.

Credits are different from units – so beware of using the correct terminology.

Funding

One of the big question marks over how biodiversity net gain will work in practice has been how local authorities will have the resources and expertise to enforce the requirements. Seemingly in response, Defra has now pledged £9.6 million in funding this financial year for local authorities to support them with biodiversity net gain.

Local authorities will be able to apply for a share of the funding that they can then spend on, for example, ecologists, evaluation specialists or other expert advice. It is hoped this will also help create new green jobs for the future.

A 10% increase in biodiversity must be secured for at least 30 years on all development sites, unless exempt, from November this year (and from April 2024 for small sites).

Conservation Covenants and Responsible Bodies

In order to create a conservation covenant you must be a designated responsible body.  Those organisations which can apply are local authorities, a public body or charity where its main function relates to conservation or another body in which some of its functions relates to conservation.

Local authorities, public bodies and charities are being encouraged to register as ‘responsible bodies’ for their region. This broadly means they will be responsible for upholding the legal conservation and restoration requirements of development sites locally and will enter conservation covenants with willing landowners.

Conservation covenants are to be registered as local land charges and will therefore be flagged during any due diligence process.

For the duration of the covenant annual reports must be submitted detailing the number of conservation covenants you hold and the area if land covered by each covenant.

Ongoing developments

Expect to see secondary legislation which will detail any exemptions from the mandatory target, definition of irreplaceable habitat, details of the of how the register will work and how this will integrate with the planning system.

We are also expecting details on the template for the habitat Management Monitoring Plans.

Final word of warning

There are local planning authorities which are requiring more than 10% net gain.  This could be a point of challenge and contention.  Any party relying on additional et gain must have the evidence to back up this request as to why it is required.  There then must be assessment against the scheme’s overall viability.

Sunak backtracks on Low Traffic Neighbourhoods

The Prime Minister has asked the Department for Transport to reassess Low Traffic Neighbourhoods, as announced in an interview with the Sunday Times, in an attempt to demonstrate his support for motorists and recognition of the importance of car-use in the population’s daily lives. This comes amid controversy surrounding the High Court case on Sadiq Khan’s ULEZ expansion and the Uxbridge and South Ruislip by-election win by the Conservatives, in which the ULEZ expansion is considered to have been pivotal (including by admission of Labour leader Keir Starmer).

The recent introduction of a number of Low Traffic Neighbourhoods in the UK was an attempt to reduce air pollution and make roads safer. Air pollution, to which road traffic is a major contributor, is estimated to cause between 28,000 to 36,000 deaths in the UK each year. The risk of air pollution to health was brought to the forefront of the media and public attention when Ella Kissi-Debrah was the first person globally to have air pollution listed as a cause of death on their death certificate. Ella died of an acute asthma attack in South London in 2013 at just 9 years of age, having had a significant number of asthma-related hospital submissions in the few years prior. According to research, around half of asthma-related emergency hospital admissions are BAME children and young people, with just under 30% being white children and young people. Given the clear links between air pollution and respiratory issues such as asthma, these figures demonstrate that both minority ethnic groups and children are highly likely to be disproportionately impacted by higher levels of air pollution and show a need for action in areas with high levels of air pollution.

An influx of Low Traffic Neighbourhoods has been introduced since 2020. It was reported in 2022 that about 200 Neighbourhoods had been brought in, although roughly 50 of those were subsequently scrapped. Critics of the Neighbourhoods suggest that they have simply resulted in diverting traffic to other areas, or that they are causing businesses to close as access for customers and suppliers is heavily restricted. In contract, some research showed that traffic in Low Traffic Neighbourhoods across 11 London Boroughs reduced traffic by almost 47%, whilst other research also demonstrated a reduction in traffic without that traffic being displaced to other local streets. Nevertheless, criticism of the introduction of the Neighbourhoods remains high and, given the significant political weight placed on and controversy surrounding the Mayor of London’s proposed ULEZ expansion, it seems this is likely this could also remain a contentious topic, which risks the proper weighing up of personal liberties, convenience and economics against human health getting lost to the political debate.

Prosecution News

£480,000 fine for Taylor Wimpey for failing to implement measures to prevent multiple pollution incidents which impacted the River Lwyd – run  off was contaminated with silt from the construction site – this shows the importance of construction management plans!

£160,000 fine for OMEX Agriculture for causing 3 million litres of liquid urea ammonium nitrate concentrate fertiliser to sill into fresh inland waters.

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