Environmental Weekly News Round Up - 27 October 2023
This week’s environmental round-up brings twice the insights covering both the latest updates and revisiting key highlights from the previous week.
LURB gets Royal Assent
On Thursday 26 October, the Levelling-Up & Regeneration Bill finally got Royal Assent.
The now Levelling Up & Regeneration Act (LURA) has now officially introduced the Environmental Outcomes Reports, which will replace the Environmental Impact Assessments. The LURA also introduces a larger set of changes to the planning system, as described in this blog from our colleague Nicola Gooch.
Permission granted for judicial review against Environment Agency
Following a permission hearing at the High Court in Cardiff on 19 October, the environmental charity, River Action, received permission to proceed to a full hearing challenging the Environment Agency (EA) over their alleged failure to protect the River Wye from agricultural pollution.
River Action, one of the country’s leading environmental freshwater campaign groups, claim the EA failed to protect the River Wye from damage caused by the spreading of organic manure. Manure has been spread on land near to the river to help with the rapid growth of the poultry industry. However, a consequence of the spreading is an increase in phosphorous in the soil which rainwater then causes to run into the river. High levels of phosphorous cause prolonged algae bloom which reduces oxygen levels in the water and consequently suffocates plants and wildlife.
The River Wye is a designated Special Area of Conservation (SAC), but earlier this year, it was downgraded to an “unfavourable-declining” status by Natural England; the worst category possible for a protected waterway.
River Action assert the EA have failed in their duty to enforce river pollution laws. The Farming Rules for Water were introduced in 2018 and stipulate when farmers are allowed to apply fertilisers to land near water. However, statutory guidance differs from the law in this instance and does allow for fertiliser to be applied to fields at times when the law prevents it.
River Action’s claim has three grounds:
- the EA’s approach to enforcing the Farming Rules for Water frustrates the purpose of the legislation;
- by slavishly following the statutory guidance, the EA is acting unlawfully;
- the EA has breached regulation 9(3) of The Conservation of Habitats and Species Regulations 2017 as their approach fails to follow the requirements of the Habitats Directive.
The EA rejected the assertion they did not take action and stated warning letters were sent out to those who may be breaching the regulations to “bring them in line” with the rules.
However, ultimately, permission for the judicial review was granted on all grounds. The full hearing is expected to be in 2024.
Welsh Water Admits Illegally Spilling Sewage for Years
Welsh Water has admitted illegally spilling untreated sewage at dozens of treatment plants for years.
The admission has come after the BBC presented the water company with analysis of its own data. We have previously reported that the BBC has been investigating water spillages from English water companies in our 8th September round-up, where the data suggested multiple water companies released sewage for 3,500 hours in 2022. (Read the edition here: Environmental News Round Up - 8 September 2023 (irwinmitchell.com). )
The spillage has occurred in one of the worst performing plants, Cardigan in west Wales. The area is environmentally protected, near a rare dolphin habitat. Spills occurred at this plant for more than 200 days each year from 2019-2022.
During heavy rain, to prevent a plant becoming overwhelmed, untreated sewage is allowed to be discharged. However, if spilled before the overflow level stipulated on the plant’s permit, it is an illegal spill.
The amount of illegally spilled untreated sewage had a cumulative total of 1,146 days from the start of 2018 to the end of May 2023.
Welsh Water admitted that 40-50 of their wastewater treatment plants were currently operating in breach of their permits, with ‘customer bills in mind’, and there is ‘no measurable environmental impact’ of the Cardigan spills.
National Resources Wales regulates the water resources in Wales and have stated that the severity and frequency of permit breaches are to be examined.
NRW’s head of operations for south-west Wales told the BBC ‘we have prosecuted Welsh Water on a number of instances for pollution events, just not for low flow spills as is the case here, but we are working with trying to set national guidance along with England so we have a more standardised approach as to how and when we take the prosecution route’.
NRW’s policy is a ‘duty to take action’ and to ask proportionally to the harm caused.
Hammond, the professor who exposed the spills, argues that ‘there are only dolphins in two places regularly in Wales and Scotland, and they’re dumping in one of them.’
It is clear that National Resource Wales may see this as a low flow spill, however the damage caused to this habitat could have significant consequences. It may be time for stricter punishment for water companies in both England and Wales, to prevent this from happening again.
Suez Challenges Environment Agency’s Compliance Assessment Procedures
It has been reported that Suez a prominent player in the waste management industry has taken the Environment Agency to court, challenging the agency’s stance on the right of waste firms to appeal against compliance assessments of their environmental permits. The claim being made by Suez centres on the need for waste operators to have a full and impartial avenue for appeal against the findings of a Compliance Assessment Report (CAR).
Essentially the CAR form acts as an official report document that assesses a waste company’s compliance with its environmental permit conditions helping the Environment Agency to determine the operator’s annual subsistence fees and regulatory status.
Currently operators have the right to challenge any of the findings contained in the CAR form within 28 days of receipt and in the first instance to the officer who undertook the assessment. However, if the officer does not agree the operator’s objections it is then reviewed again internally by the Environment Agency.
Suez argue that that it is crucial that operators are afforded an impartial route to appeal which would align with the Environment Agency’s core principles of accountability, transparency, and the need for proportionate and consistent decision-making.
In its response the Environment Agency have argued that there is no statutory obligation within the environmental permitting regime to address disputes related to CAR scores, asserting that CAR scores are a component of the agency’s monitoring practices and do not constitute a regulatory function.
The outcome of this case holds significant ramifications not only for waste management companies but also for the broader environmental regulatory landscape.
The pause on a similar judicial review involving Veolia further highlights the broader implications of this case which extend beyond a single company or dispute.
No doubt there will many across the environmental sector closely monitoring the current court proceedings.
Profiting from Loopholes: How Companies Can Cash in on Unused Carbon Credits in the UK
A recent investigation by Greenpeace ‘Unearthed’ its investigative journalism unit has uncovered a disconcerting trend in the UK’s fight against carbon emissions. The investigation found a significant loophole in the UK government’s decarbonisation scheme turning the closure of energy intensive factories into potential huge financial opportunities for companies.
According to Greenpeace ‘Unearthed’ companies can close its plants to reduce emissions but still hold on to free carbon credits allocated to it by the UK government. The government has no means of retrieving these unused credits once allocated as there are no provisions preventing companies from selling unused credits generated from factory closures rather than from legitimate decarbonisation efforts.
This loophole has the effect of leaving companies to then sell their additional carbon allowance from the UK Emissions Trading Scheme (ETS) to make potentially millions on the carbon market thus profiting significantly from factory closures and job losses.
Under the UK Emissions Trading Scheme (ETS) companies are allocated carbon credits each year based on their emission levels. The goal is to encourage firms to reduce their carbon emissions by incentivising them to hold fewer credits. The UK government guidance does endeavour to address the issue of unused carbon credits and states, “If your report shows a decrease in your activity level which decreases your free allocation entitlement for that year, you must return any over-allocation” and then goes on to make reference that the regulator may instruct the registry administrator to transfer allowances out of the company’s operating holding account in the UK registry.
However, industry specialists have said that this does not apply within the calendar year and if a company closes on 2nd January it is entitled to free emission allowances for the remainder of the calendar year. In addition, specialists have commented that the ‘free’ emissions allowances have not incentivised significant decarbonisation in the steel, cement and petrochemical sectors for example and have proposed that it would be preferable to auction them as opposed to handing them out for ‘free’.
The exploitation of unused carbon credits from factory closures raises critical questions about the effectiveness of the UK emissions trading scheme. The mechanism that allows the overallocation of allowances also diverts allowances from other companies and may fail to incentivise companies to decarbonise. Regulatory reforms and greater oversight are imperative to uphold the integrity of emissions trading schemes and to ensure they fulfil their primary purpose which is promoting sustainable low carbon practices while safeguarding the environment.
Impacts of mineral extraction do not matter during mineral exploration
In Frack Free Balcombe Residents Association v Secretary of State for Levelling Up, Housing and Communities & Ors [2023] EWHC 2548 (Admin), the High Court ruled that planning authorities should not consider the impacts of mineral extraction while reviewing an application for mineral exploration.
The case concerned a permission for “exploration and appraisal comprising the removal of drilling fluids and subsequent engineering works with an extended well test for hydrocarbons along with site security fencing and site restoration”. The site was located in the High Weald AONB and also involved a continuous flare. The permission was initially refused by the local authority but was later granted on appeal by the Secretary of State.
Frack Free Balcombe Residents Association raised a statutory challenge against this decision on six grounds, out of which the most relevant ones are 1, 3 and 5.
Ground 1 provided that the inspector had unlawfully considered the benefits of mineral extraction in its review, while disregarding the harms. The court considered this was imprecise as it was clear that the inspector’s focus was on the exploration phase only. Despite that, it was also inevitable in the opinion of the court for the inspector to consider matters relating to what would happen if viable hydrocarbons were found in the exploration phase. Otherwise, it would be illogical to grant planning permission for exploration if future mineral extraction was not allowed by the local policy.
Separately, the court also considered that there was no need for the inspector to address any of the impacts from the future extraction phase, because these would be addressed and evaluated in a different application that would only be submitted if mineral extraction was determined to be viable. The court also clearly stated that the disbenefits of mineral extraction “are not relevant to the decision whether to approve exploration alone.”
The claimant also referred to the Ashchurch case (also known as the bridge-to-nowhere case) to support their position that all impacts should be taken into consideration. However, the court concluded that the Ashchurch case was not applicable. In that case, the bridge-to-nowhere had not benefit or use on its own, as it only purpose was to allow access to the rest of the project. Meanwhile, in this case the exploration of hydrocarbons has value on its own because it is indispensable to determine the commercial viability of the site for extraction of minerals.
Ground 3 referred to the lack of consideration to alternatives for carrying out the exploration outside the AONB. The court disagreed with the claimant’s position as the objective of the exploration is only to determine the commercial viability of the site, and not to determine whether there should be production of any hydrocarbons from the site. Therefore, the evaluation of alternatives had to be restricted to “alternatives for the purpose or benefit of the exploration in issue, not alternatives to the production of hydrocarbons from the site”. The court considered it would be a pointless exercise to evaluate alternatives for production outside the site at the exploration stage, as this should be done only if an application for mineral extraction is submitted.
Ground 5 provided that the impacts on climate change were not adequately addressed as the inspector had not assessed and quantified level of GHG to be produced. The court considered there was no statutory or case law requirement to expressly quantify the GHG emissions that would result of a development. While climate change is likely a material consideration for planning applications, it is not necessary to make a reference to specific calculations.
The statutory challenge was refused on all its grounds.
The case is helpful to identify what can be considered a material consideration for planning authorities when dealing with an application for mineral exploration only.
Webinar ‘Achieving Net Zero – What You Need To Know’
On Wednesday 18th October, Irwin Mitchell hosted a webinar called “Achieving Net Zero – What You Need To Know”.
Chaired by IM’s Head of the Planning and Environmental department, Claire Petricca-Riding, we heard from Keith Davidson (IM Environmental Partner), Shane Hughes (Director of Net Zero Services – Ramboll) and Nina Pindham (Specialist Planning and Environmental Law Practitioner - Cornerstone Chambers). The three speakers each looked at different questions surrounding the topic of achieving net zero.
While giving a general overview of past and present UK and Global environmental efforts, summits and legislations to help those in attendance have a better understanding of the background, Davidson’s underlying message seemed to echo the terrifying realities of the award winning 2021 movie Don’t Look Up.
Despite overwhelming scientific evidence and advice, society and governments are unwilling to accept the urgency of the crisis we are currently in. Ignoring the threat of our own self-destruction for short-term gain and it would possibly take something as extreme as a food supply crisis for the world to have a true wake up call.
Davidson pointed to the catastrophic consequences of global temperature increase, the rate of species decline and simple fact the UK is unlikely to meet its 2030 GHG emission targets. Despite the appearance of environmental efforts over the last 30 years, it is simply not enough.
After Rishi Sunak’s speech this September, one thing is clear. Governments are slowing down action (preferring to focus on new licences for north sear exploration). However, on a slightly more positive note, there has been a significant increase from the corporate side to make a real effort.
The increase in carbon reporting obligations having pushed companies to make real changes from within. Using Irwin Mitchell as an example, Davidson led us through a roadmap with the company’s specific steps and targets to achieving Net Zero and more.
The webinar then smoothly transitioned to Shane Hughes from Ramboll who focused on climate transition planning.
While setting targets is a crucial first step, the question then becomes – what next? How do we achieve this? Hughes spoke on the benefits of the UK’s TPT's (Transition Plan Taskforce) sector guidance which complements the TPT Disclosure Framework and elaborated on a broader system thinking approach, claiming that there is a risk of poor decision making with silo mentality.
He stressed the importance of going beyond risk mitigation to actual action planning - not simply focusing on ambition and accountability (though these are not negligeable and in fact lead to action).
In simple terms, he spoke about the importance and the way in which now companies are “putting their money where their mouth is”. Setting greenwashing aside and looking at business models, financial planning, increasingly engaging the supply chain, thinking long term and upskilling people to spot the issues and change them.
Hughes also pointed to the fact that there is a recent increase in company participation in voluntary initiatives and the arrival of universal benchmarks (instead having many different standards as was the case before) is making it easier and easier to meet environmentally friendly targets and standards.
Non-Compliance – Climate Litigation
The Climate Change Act 2008 was the first comprehensive legally binding Act, which influenced many different states This Act, has wider reaching implications than just the UK.
That is why when the Government were taken to court for failing to meet a climate change ambition, it gained a large amount of publicity throughout the world.
R (Friends of the Earth Ltd) v Secretary of State for Business has been written about many times, and in depth on this site, and this is because the decision was hugely relevant for worldwide potential climate litigants. To summarise, it was held that the Secretary of State’s Net Zero Strategy breached the 2008 Act.
The Government’s Net Zero Strategy failed to produce detailed climate policies that show how the UK ‘s legally binding carbon budgets will be met. The Secretary of State did not have to be certain that these policies would enable carbon budgets to be 100% met, however ‘without information on the contributions by individual policies to the 95% assessment, the Minister could not rationally decide how much weight to give those matters in order to discharge his obligations under s.13(1)’. Furthermore, under s.14 a report is required for scrutiny from Parliament, and crucial figures were not shared.
As a result of this, the Government’s policies will have to include an account on how it will achieve climate targets.
Similarly, to businesses, the Government must consider Climate Transition Planning, and not aimlessly set targets, without a core understanding of what is achievable.
Although this case did not involve businesses inherently, there are potential side-winds that could hit businesses who are non-compliant with legislation. So, it is advised to keep up to date with the quickly expanding legislation.
The risk of being sued directly should not be discounted either, there have been almost 1,400 climate-related litigation cases around the world, which is a number that has risen dramatically over the past 15 years. Therefore, implementing strategies to comply with legislation, and to keep on top of reporting duties, is a necessity in the current climate.
As mentioned, businesses must really have a core understanding of what is achievable. ‘Greenwashing’ is an issue that is gaining more attention by the public, and there is more climate consciousness across the UK. Companies are not able to mislead the public, which is proven by HSBC’s banned advertisements in 2022.
The quickly evolving climate legislation has already come such a long way in the past 15 years, and it is not going to slow down. Companies must be aware of their climate transition planning and pay attention to more than just net-zero. Client resilience, biodiversity, and other sustainability goals must be in force, but also inherently understood. It is time to move far, and fast, and dive into the fundamentals of a full climate change picture.
Fostering Ethical Finance: Charities Introduce Principles for UK Nature Markets
This week’s article is shining a spotlight on one of a number of initiatives taking place aimed at bridging the gap between business operations and climate responsibility.
In an attempt to address the ever-increasing problems of corporate ‘greenwashing’ the Wildlife Trusts, RSPB, Woodland Trust and National Trust have recently unveiled a set of visionary guidelines aimed at revolutionising ‘nature markets’ in relation to addressing climate change. The principles present a novel strategy to offset the ecological footprints of businesses and to foster sustainable investments which essentially involve companies purchasing various environmental assets including carbon credits, biodiversity units, nutrient credits and natural flood management payments as a means of mitigating environmental impact. They are generated by nature-based solutions and have the capacity to deliver multiple benefits for society and the environment, as well as opening up new income streams for rural communities and farmers.
It is reported that the charities worked with Finance Earth and Federated Hermes to draw up the guidelines known as the ‘Nature Market Principles’ which are a voluntary set of principles. The Chairman of Finance Earth, James Alexander has said that the charities have developed the principles to encourage science-based investments that support high-integrity natural capital markets within the UK and have been informed by a range of credible UK and international sources as well as the practical delivery experience of the charities.
The charities have expressed their intention for the UK Nature Fund Impact Fund to embrace the Nature Markets Principles and for them to be implemented.
The UK government have set an ambitious target to grow annual private investment in nature by at least £500 million by 2027 rising to over £1billion by 2030 with the Wildlife Trust estimating that there is currently a £6 billion annual funding gap for UK nature recovery across land and sea so clearly there is much to be done. The UK government published its Nature Markets Framework in May and is working with the British Standards Institute to develop robust standards for green financing.
The current lack of regulation for emerging markets for carbon credits amongst others has led to concerns that poor quality or low ambition schemes merely allows certain industries or businesses to make false claims in relation to their environmental credentials.
These principles also contain stipulations about who the producers of credits will do business with ruling out those companies dependent on environmentally damaging activities such as fossil fuel activities.
The RSPB commented in relation to the principles that well-regulated nature markets could be a means to increase business investments in restoring nature and combating climate change all while positively impacting local communities.
End of Life Vehicles – Appropriate Measures for permitted facilities.
On the 19 October 2023, guidance was published by the Environment Agency to explain the standards that are relevant to regulated facilities with an environmental permit to store and treat end of life vehicles.
For those who are exempt, or hold a permit, it may be a useful reference.
The Environmental Permitting Regulations extended the ELV Directive, which sets out the minimum standards for dismantling and recycling ELVs, to include all motor vehicles, including motorbikes and commercial vehicles.
The guidance requires emissions from the process to be identified, and appropriate measures to be taken to control them at source. Stringent recording processes are expected to comply with terms of the permits, or exemptions.
The circular economy is at the forefront of the waste guidance, pointing out that a management plan must optimise the reuse, regeneration, recycling, or energy recoveries of residues. Further to this, a detailed assessment must be carried out when waste is disposed of.
The guidance is clear, however during the consultation stage, some parties felt that a lot of the guidance was already implemented by established ELV facilities.
However, with most cars only having a lifespan of 13.5 years, and 3.5 million ELV vehicles being reported missing in 2018, it seems that guidance must be given to help promote the circular economy and ensure ELV’s are disposed of in a safe and well reported manner.
You can read the guidance here
