Environmental Weekly News Round Up - 10 November 2023

Welcome to our latest weekly Environment Law News Update, where we bring you developments, insights, and analysis in the world of environmental law. In this edition, I would like to acknowledge and thank the following contributors for their valuable input: Jill Crawford, Stefano D'Ambrosio-Nunez, Elizabeth Mutter, Ben Holland, Anastasia Panich and Chloe Moran.

EA establishes stricter parameters for air emissions

The Environment Agency (EA) uses environment assessment levels (EALs) to judge the acceptability of proposed emissions to air from industrial processes, and their relative contribution to the environment.

Two consultations on the update of EALs were carried out during 2022 and 2023. The consultation response was recently released on 6 November 2023, which contains the full set of new EALs.

The consultation response provides that the EA will now use the updated EALs in their regulatory activities. This means that the new EALs now apply for all new permit applications and for all substantially changed permits. For existing permits, the new values will be applicable on a case-by-case basis which will be evaluated once each existing permit is subject to sector review.

The full list of updated EALs is in the table below.

Fighting Dirty Bring Legal Challenge Against the Environment Agency Over Microplastics and Contaminants Spread on Land

A legal challenge has been brought against the Environment Agency (EA) in the High Court in London by campaign group ‘Fighting Dirty’. The campaign group allege that the Environment Agency has abandoned its pledges to regulate microplastics and toxic chemicals in sewage sludge spread on farmland.

The challenge follows the Environment Agency publishing its policy paper on 1^st August 2023 “Strategy for Safe and Sustainable Sludge Use” which stated that the Sludge (Use in Agriculture) Regulations (SUiAR) will no longer be needed. Fighting Dirty claim that the Environment Agency has acted unlawfully by renouncing a prior pledge to establish regulations concerning toxic sewage sludge by 2023’.  

The Environment Agency is the regulator for the supply, treatment, storage and use of sludge through the Urban Waste Directive, and the Environmental Permitting Regulations. In general terms “sludge” refers to a semi-solid slurry or a by-product typically generated from industrial processes, water treatment plants or sewage treatment facilities. Sludge can contain a variety of materials, including organic matter, chemicals and potentially pathogens or heavy metals depending on its source. The composition and potential hazards associated with sludge dictate the methods for its handling, treatment, and disposal. It is typically sold to farmers by water companies and is then used by farmers as a fertiliser and spread on agricultural land.

Campaigner Georgia Elliott-Smith of Fighting Dirty said: “Farmers are unknowingly being sold potentially highly toxic material to spread on their land, poisoning our soil, watercourses, and food, and we have no hope of a date when this situation will be resolved.

According to the campaign group a report commissioned by the Environment Agency in 2017 found that crops were contaminated with dangerous persistent organic pollutants “at levels that may present a risk to human health” and in 2020 the Environment Agency announced a strategy for ensuring the safe and sustainable use of sewage sludge in which it had committed to introducing new regulations which would involve testing and regulation of sewage sludge.   The Environment Agency also stated at the time that to “do nothing is unacceptable”.  

The updated strategy document of August 2023 states that it will bring sludge and septic tank sludge into the Environmental Permitting Regulations and will “evolve regulatory tools”. The regulator has faced criticism for failing to provide a timeline of when or if these changes will be implemented.  Current regulations on sludge application have remained unchanged since 1989.

The University of Cardiff and University of Manchester have found that UK soils have the highest level of microplastic contamination amongst European countries with 500 – 100 microplastic particles applied per square meter of agricultural land each year. Microplastics are known to pose risks to wildlife and the broader food chain due to their ability to carry contaminants and pathogens. Add into the mix the heavy contaminants that have also been found in sludge spread on agricultural land and it all points to the urgent need to manage the application of sewage sludge to land in order to both prevent and protect against water pollution, the risk to human health and harm to soils.  Regulations and best practices need to be in place to ensure that the use of such materials does not lead to such issues.

In conclusion the unfolding legal challenge against the Environment Agency is a critical development that warrants close attention as it could have significant ramifications for public health long term as well as the continuing degradation of our rivers.

Kings Speech – New system for oil and gas licences confirmed

In the King’s speech to Parliament on 7 December 2023, the King confirmed that new legislation would be introduced to “strengthen the United Kingdom’s energy security and reduce reliance on volatile international energy markets and hostile foreign regimes”. For this purpose, the Offshore Petroleum Licensing Bill will be brought forward. 

The bill will introduce a periodic system for granting new oil and gas licences on an annual basis. This will be a considerable change as currently the government has no fixed period for inviting applications for new production licences in the UK’s offshore waters (licensing rounds).

According to the Briefing notes, the main reason for this change is the consistent decline in production of oil and gas from the UK Continental Shelf, even with the recent boom in licences being awarded. The briefing notes consider this is concerning for the country as the domestic production is vital for the UK’s energy security.

Regarding the conflicts between increasing the rate of exploration licences and how this would affect the UK’s net zero goals, the briefing notes provide that “Even with continued licensing, production from the UK Continental Shelf is projected to decline at 7 per cent annually, this decline is faster than the average global decline needed to align with the Intergovernmental Panel on Climate Change’s 1.5-degrees pathways.” Despite this explanation, the introduction of this bill has still been criticised by green groups.

Considering this King’s speech is likely the last one before the next general election and that bills cannot be carried over into a new parliamentary session, it seems unlikely that the government will be willing to bring forward this controversial bill any time soon.

Another Week – Another Illegal Spill

Illegal spills have been on the news quite frequently over the past few weeks.

This week, Thames Water has been found to have pumped at least 72 billion litres of sewage into the River Thames since 2020. 

The Liberal Democrats submitted an environmental information request, which revealed the information. They are now calling for water companies to be more transparent with their data on sewage spills. This is likely because there is no legal obligation to report the amount of sewage discharged, only the number of hours it was released.

The Liberal Democrats have labelled the spills as an ‘environmental crime’, and the Liberal Democrat MP, Munira Wilson, has even called for the dissolution of Thames Water as a result of the findings. 

This is not the first time Thames Water has been in trouble for pollution incidents. Earlier this year, it was fined £3.3million after it killed more than 1,400 fish by discharging untreated sewage into rivers, where it admitted four charges. Mogden was the most heavily affected site as 17.1bn litres of sewage was discharged into the river. This river contains a nature reserve, rare wildlife, and is an area where people often swim and boat. 

The Storm Overflow Discharge Reduction Plan was published on 25^th September 2023 to tackle the impact of storm overflows. By 2050, water companies will only be permitted to discharge from a storm overflow inland where they can demonstrate that there is no adverse ecological impact. The Thames would fall under this requirement. 

Situations like the spill described above indicate this might be a good time for water companies to take illegal sewage releasing into serious consideration. 

The storm overflow reduction plan aims to tackle the illegal spills, but whether there will be any significant reduction in these occurrences is yet to be seen.

Judge reduces EA penalty regarding hydrofluorocarbons by half

Earlier this year, the Environmental Agency imposed a £200,000 penalty on Scania (Great Britain) Ltd. According to article 14(1) EU Regulation 517/2014, pump equipment charged with hydrofluorocarbons (“HFCs”) cannot be placed on the market unless the gases fall within a certain HFC quota. The EA found that the vehicle manufacturer failed to meet the set requirements.

Scania ltd attempted to rectify the situation by purchasing credits to cover the shortfall and amending its projections for the following year. However, the EA stated that "HFC QAs need to be in place during the relevant quota year and cannot be purchased and applied retrospectively to an earlier quota year to make up any quota shortfall".

The matter was only aggravated by the fact that Scania “identified an additional shortfall of 7.741 HFC QAs for the 2021 quota year" and tried again to cover it by buying credits.

The EA imposed the maximum penalty of £200,000 using Enforcement and Sanctions Policy (“ESP”) but Scania argued that the sum was “too high and disproportionate”. They stated that the maximum penalty should only be applied in cased of high culpability and Scania’s breach stemmed from negligence and was “not either 'reckless' or 'deliberate' and there was significant mitigation." The EA disagreed, elaborating on Scania’s financial gain and increased the penalty since Scania “failed to improve its compliance procedures for import of pre-charges equipment”. 

Despite the EA’s case, the judge considered that the penalty did not reflect Scania’s financial gain from the failure to purchase sufficient HFC QAs. The judgment said “A balance needs to be struck between ensuring, to the extent possible, that operators do not benefit from their breaches and avoiding seeking a threshold of such certainty that the effect of the penalty is a disproportionate one having regard to the objectives of the sanctions regime. I do not find that the [EA's] balance was a reasonable one in this respect."

Since Scania attempted to mitigate, self-reported the breaches, and fully cooperated with the EA the judge reduced the penalty from £200,000 to £90,511.

New energy act

The Energy Act 2023 was published at the beginning of November 2023. The act makes provisions on multiple matters relating to energy production and security, from which we would like to highlight the provisions on: (i) the licensing of CO2 transport and storage, (ii) commercial arrangements for CO2 capture and storage and for hydrogen production and transportation, (iii) the licensing of hydrogen pipeline projects, (iv) offshore wind electricity generation, (v) oil and gas sector including provisions on environmental protection, decommissioning charges, and changes in licence control, and (vi) civil nuclear sector including provisions on nuclear sites, nuclear constabulary and Great British Nuclear.

While the act has a large scope, it is structured around three key pillars: (i) leveraging investment in clean technologies, (ii) reforming the UK’s energy system and protecting consumers, and (iii) maintaining the safety, security and resilience of the energy systems across the UK.

Most of the act will come into force “on such day or days as the Secretary of State may by regulations appoint” as provided in section 334. However certain provisions came into force on 26 October 2023  (i.e. Part 8 Heat networks and most of Part 11 Energy Savings Opportunity Schemes), and others are scheduled to come into force on and 26 December 2023 (i.e. Part 1 Licensing of carbon dioxide transport and storage, and Part 3 Licensing of hydrogen pipeline projects). The specific provisions relating to the Accession to Convention on Supplementary Compensation for Nuclear Damage will come into force on the day on which the Convention on Supplementary Compensation for Nuclear Damage comes into force in respect of the UK.