Environmental Weekly News Round Up – 22 December 2023
Welcome to our latest weekly Environment Law News Update, where we bring you developments, insights, and analysis in the world of environmental law.
New NPPF – What are the changes from an environmental perspective?
The government has recently released their Response to the Levelling-up and Regeneration Bill: reforms to national planning policy consultation and, based on the results of this consultation, has also updated the National Planning Policy Framework (NPPF) on 20 December 2023.
The amendments to the NPPF introduce some important changes in relation to the environment:
Energy efficiency
Additional support is given to energy efficiency improvements to existing buildings as now the Local Planning Authorities (LPA) will need to give “significant weight” to proposals that improve energy efficiency and low carbon hearing in either residential or commercial buildings. This change will certainly assist when applying for planning permissions for the retrofitting of buildings, which is being used as a measure to avoid releasing the building’s embodied carbon.
"164. In determining planning applications, local planning authorities should give significant weight to the need to support energy efficiency and low carbon heating improvements to existing buildings, both domestic and non-domestic (including through installation of heat pumps and solar panels where these do not already benefit from permitted development rights)."
Green Belt
The new wording now clarifies that there is no need to review the Green Belt when updating local plans. The previous wording only provided that the Green Belt could be altered if there where exceptional circumstances, which according to the consultation response did not provide the required level of clarity of the policy intend.
“145. Once established, there is no requirement for Green Belt boundaries to be reviewed or changed when plans are being prepared or updated. Authorities may choose to review and alter Green Belt boundaries where exceptional circumstances are fully evidenced and justified, in which case proposals for changes should be made only through the plan-making process.”
Food production value of agricultural land
The original NPPF wording of Footnote 62 only provided that if a development must be carried out on agricultural land, then poorer quality land should be preferred to higher quality land. A second part was inserted to this footnote, which incorporates a greater focus on food security, as it provides that the availability of agricultural land for food production must be considered in planning policies and decisions.
While food security is of importance, the concern with this amendment is that in practice, the footnote 62 has been used by LPAs to allege that development of solar farms was not viable in any best and most versatile agricultural land (Grades 1, 2, and 3a) disregarding the specific characteristics of each site. The greater focus on food security might unfortunately incentivise this type of interpretations.
“[Footnote 62] Where significant development of agricultural land is demonstrated to be necessary, areas of poorer quality and should be preferred to those of a higher quality. The availability of agricultural land used for food production should be considered, alongside the other policies in this Framework, when deciding what sites are most appropriate for development.”
Apart from the above, some proposed changes addressed in the consultation have not been yet incorporated in this version of the NPPF. These changes relate to carbon assessments, climate adaptation, nature recovery, and ancient woodlands. It is expected that the subsequent review of the NPPF would address these proposed changes.
Corporate Ethics in Action: Transforming Business for a Sustainable World
Following what have been reported as intense discussions on 14th December between representatives from the EU Council and Parliament a consensus was finally reached on the Corporate Sustainability Due Diligence Directive (CSDDD). The agreement covers key areas of contention, notably the role of financial entities and the requirement for businesses to enact climate action plans.
The CSDDD is a significant step towards holding large companies accountable for any violations of human rights and environmental norms in their supply chains. It was originally proposed by the European Commission in February 2022 in response to calls from the European Parliament.
European Parliament negotiator Lara Wolters hailed the directive as a “historic milestone” making companies accountable for their entire value chain a decade after the Rana Plaza disaster. The Rana Plaza disaster was a catastrophic building collapse that occurred in April 2013 in Dhaka, Bangladesh when the 8-storey building housing several garment factories collapsed causing enormous loss of life and injury. Over 1,100 people were killed and more than 2500 injured. The disaster highlighted severe issues in global supply chain practices particularly in relation to the garment industry.
A key point in the debate was the inclusion of financial institutions such as banks in the CSDDD. The European Parliament advocated for comprehensive legislation that encompassed these financial actors. In contrast the EU Council influenced partly by the French government favoured a more restrained approach. The final compromise excludes primary financial activities like investments and loans from the CSDDD marking a concession by the Parliament to the Council. However, banks will be required to conduct due diligence on their direct activities, which are generally more limited. Additionally, a future review is planned to reassess the inclusion of financial services the CSDDD.
Another area of contention was the obligation for companies to develop and implement climate action plans aligned with the Paris Agreement’s goal of keeping global warming below 1.5 degrees Celsius. The European Parliament’s insistence that companies not only formulate but execute these plans has largely been met in the final agreement.
The CSDDD will apply to enterprises with over 500 employees and a global annual turnover exceeding 150 million euros. However, for certain high-risk sectors like textiles, agriculture, food production, mineral resource trade and construction the criteria are more stringent. Companies with more than 250 employees and turnover exceeding 40 million euros (with at least 20 million euros from the sectors) will be subject to the directive.
Crucially the directive encompasses all companies operating within the EU market including those headquartered outside of the EU. This aspect has prompted significant lobbying from international companies concerned about the CSDDD’s extra-territorial implications which is an international feature aimed at bolstering global adherence to human rights and environmental standards.
In relation to enforcement of the CSDDD national supervisory/regulatory bodies will have the authority to impose penalties on companies not complying with due diligence processes with potential fines up to 5% of the company’s global turnover. In addition, victims will have the right to seek compensation in the European Courts if they can demonstrate harm to due to a failure to adhere to due diligence norms.
While the political agreement is in place formal approval by the European Council and the European Parliament is still pending.
MP seeks to overturn the ULEZ expansion
Gareth Johnson, MP for Dartford in Kent, has this month presented a private members bill to the House of Commons which would, if passed, give government the power to overturn the expansion of London’s ultra-low emission zone (ULEZ).
The expansion is to cover all outer-London boroughs and began in August this year. The impact being, if a car does not meet certain emission standards and drives within the ULEZ, a £12.50 daily charge is incurred. Dartford borders the London borough of Bexley and Mr Johnson has described the expansion as “undemocratic” and the charge as a “cruel taxation”.
It is true the expansion has caused great commotion for some of those impacted. Also, this month, a ULEZ camera in Sidcup was destroyed with what was reported to be a homemade bomb on the same day it was installed. The Met Police announced in November there had been nearly 1,000 recorded crimes connected to the cameras being stolen or vandalised in the past seven months.
The second reading of Mr Johnson’s Greater London Low Emission Zone Charging (Amendment) Bill is due on 22 March 2024.
Government faces legal challenge over Rosebank North Sea oil field
Greenpeace UK and Uplift have started two separate legal challenges in Scottish courts against the decision by the energy secretary –Claire Coutinho–, and the North Sea Transition Authority over the approval of Rosebank oil field.
The North Sea Transition Authority (NSTA) granted development and production consent for the Rosebank oil field in September 2023, which has the potential to produce 500m barrels of oil in its lifetime. The government has highlighted that this project would help the UK to achieve energy security. However, the project has faced resistance from opposition groups as it involves additional extraction of hydrocarbons.
Uplift claimed in its legal challenge that the government failed to show how the development of this large oil field would align with the net-zero plan for 2050, and in their point of view this development would prevent the government from achieving this objective.
Green Peace claimed that the approval process did not adequately address the direct and indirect environmental impacts caused by the oil’s combustion, which constitutes scope 3 emissions. In their words, this would be like “building a bomb and claiming it’s completely harmless so long as no one detonates it”. Furthermore, Green Peace also claimed that the potential harm to marine wildlife due to the construction and operation of the oil field was not properly addressed either.
The UK government has rejected these claims and stated that will contest the legal challenges. Furthermore, according to the NSTA the net-zero considerations were in fact addressed as part of the approval process.
These legal challenges underscore the tension between achieving energy security and protecting the environment.
Conservationists are taking the UK to court for “illegally squandering” fish stocks.
Each year, the UK, the EU, and Norway negotiate catch limits for shared commercial fish species for the following year. They also enlist the help of an independent scientific body as to what level is sustainable. This year, ministers have agreed to increase catch limits for shared stocks above scientific advice for at least half of the catch limits. This has given a green light for overfishing, according to the Blue Marine Foundation.
The deal will result in 750,000 tonnes of fishing opportunities, worth 970m for the UK fleet.
This decision has been criticised by conservation and environmental law NGOs from each of the nations, who have warned that severely depleted fish populations remain at “grave risk”.
This decision will be challenged in courts by marine conservationists, who have accused ministers of breaking their own post-Brexit rules. The legal challenge will start in January and will argue that the government is “illegally squandering” a public asset and going against laws aimed at improving sustainable fishing. Blue Marine has written to ministers to say that it will be seeking leave for judicial review of its determination of fishing opportunities for 2024, to assess if the decision is in line with the government announcement on 8 December 2023.
The fisheries minister, Mark Spencer has said that scientific advice had informed deals setting 70 catch limits for fish stocks in the North Sea and north-east Atlantic, in support of a sustainable and profitable fishing sector.
During November 2020, the Fisheries Act became the first domestic fisheries legislation in four decades, which was said to create a “world class” management regime, drawing on the “best available” science to ensure fish populations are healthy and sustainable.
Conservationists, however, argue that in the first-year post Brexit, more than 65% of catch limits were in excess of independent scientific advice from the International Council for the Exploration of the Sea. In the second year, they were 57% above. Scientists have argued that there are opportunities on the stocks, including Channel and Celtic Seas pollack and Irish Sea sole, they argue should not be fished at all.
There is also currently a pending case against EU ministers over the 2022 catch limits in the north-east Atlantic for shared fish populations between the EU and the UK as well as stocks in EU waters, brought by the charity ClientEarth.
The legal challenge is expected to start in January.
Government scraps Redcar hydrogen scheme
On 14 December 2023, the government announced that a plan to replace the home gas supply with hydrogen, the low-carbon alternative, in Redcar, a village in the north-east of England, had been abandoned.
This is partially due to strong opposition from the area’s residents as well as due to the lack of hydrogen for the project. The Department for Energy Security and Net Zero (DESNZ) has stated: “The proposed hydrogen heating village trial in Redcar cannot go ahead as designed, as the main source of hydrogen supply will not be available. As such, the government is not in a position to provide support for the trial.” This is not the first decision of its kind, as recently as in July, a similar project with plans to pilot hydrogen was terminated in Whitby, Cheshire. In both situations, local residents were concerned about potential rising costs and safety risks involved.
Residents in Redcar reported being concerned that replacing home gas supplies with hydrogen “more explosive and produced more harmful nitrogen oxide (NOx) than the currently supplied natural gas”. This is despite reassurances from Northern Gas Networks (NGN), who were set to run the Redcar scheme, that all safety issues and concerns would be addressed. Another community was also considered for the project, but the residents in Ellesmere Port strongly campaigned against the project being introduced into their homes.
The “hydrogen village” scheme was due to be launched in 2025 as response to government requirements for tackling climate change - the goal being to reduce natural gas use by 2035 and eliminate it by 2050. The UK Government is set to decide whether “its net zero climate plans will include replacing household gas with hydrogen by 2026. It will assess evidence from a pilot in Fife in Scotland, and similar schemes in Europe.” A policy adviser at E3G, a climate thinktank, Juliet Phillips has spoken on the decision to terminate the trial scheme in Redcar, believing it to be “another nail in the coffin for pipe dreams of hydrogen heating”. Simultaneously, an NGN spokesperson expressed the company’s disappointment to not "be able to take forward our plan to heat homes and businesses in Redcar with low carbon hydrogen".
Just three fines issued since January 2022 for improper use of domestic stoves
Despite the government encouraging local authorities to improve air quality in their area by enforcing against the use of some domestic stoves and the domestic burning of some materials, it has been revealed just one prosecution and three fines have been handed out since January 2022.
As of January 2022, all domestic stoves bought must be ecodesign compliant to reduce their emissions and improve efficiency. There are further, stricter restrictions in place for those living in a smoke control area, as designated by local authorities, including restrictions on what can be burned.
These updates formed part of the government’s plan to tackle domestic emissions. Stoves can be particularly bad polluters and emissions of PM2.5, from wood burning increased by 35% between 2010 and 2020. However, the government has a legal target to reduce exposure to PM2.5 by 35% in 2040 compared to 2018 levels, and there is also an interim target of a 22% reduction by the end of January 2028.
To help push towards these targets, the government published their Environmental Improve Plan 2023 in January this year. The plan was, in part, to improve air quality by “driving effective local action through local authorities”. However, no additional funding or resources accompanied the plan and some authorities from the outset have said the policy lacked teeth for this reason. It is therefore perhaps not surprising to many that the enforcement numbers are so low and may be likely to remain so.
Environmental Weekly News Round Up – 15 December 2023
COP28: First ever agreement to transition away from fossil fuels
An agreement has been reached at COP28 to transition away from fossil fuels. This is the first of its kind in 28 years of international climate negotiations.
Dr Sultan Al Jaber, the COP28 president, has hailed this a “world-first” achievement of getting “fossil fuels” in a UN climate change agreement. It was also remarkable that this agreement was reached considering that Al Jaber is the CEO of one of the largest oil and gas companies, Abu Dhabi National Oil Company (ADNOC).
From the UK side, an unfortunate highlight was the early departure of UK’s Climate Minister, Graham Stuart, from the COP28 negotiations, as he left not long before the new agreement was reached.
Despite the success in reaching an agreement, Al Jaber also shared a wise warning: “Let me sound a word of caution. Any agreement is only as good as its implementation. We are what we do, not what we say. […]”. However, not long after that Al Jaber also declared that his company will continue with his oil company’s record investment in oil and gas production. Among the reasons for this decision, he mentioned that oil will still be needed during the transition period and that his company’s oil produces less carbon footprint because carbon is extracted efficiently and with less leakage.
The agreement is praised for calling for a “phase-down” of coal and move away from fossil fuels, which is a great step on the right direction as the burning of fossil fuels is one of the main drivers of emissions.
However, the agreement is not free of criticism. For example, in ClientEarth’s opinion, the agreement “does not call for a full phase out, nor provide clear obligations”. Furthermore, the agreement “uses uncertain language about transition fuels and relies too much on unproved technologies for its implementation”.
Similarly, indigenous people and climate change groups have argued that the agreement is unfair. Many developed countries publicly pushed hard for the phase out, but with the developed polluting countries transitioning first. These groups believe that the deal fails to recognise the historic responsibility of the developed countries, such as the UK and the US.
The crucial question is what happens next, and with COP29 being hosted by Azerbaijan, it is uncertain what the government may want from their hosting. There has been a history with countries unhappy with one outcome trying to unpick it the next, but hopefully this will not be the case this time.
How the UK is Tackling Global Deforestation
At CoP 28 the UK government emphasised its commitment to combating illegal deforestation overseas by introducing a ban on forest risk commodities linked to illegal deforestation.
This commitment forms part of the Environment Act 2021 which came into force two years ago. During this time the World Wildlife Fund (WWF) reported that a loss of nearly eight million hectares of primary forest worldwide has occurred. Global Witness links a portion of this loss to UK imports. DEFRA acknowledges that an area equivalent to the UK is cleared annually to meet the nation’s demand for certain commodities.
Not only have both businesses and NGOs been critical of the delays in enforcing this ban but have also expressed concerns in relation to the limitations of the legislation itself. The legislation only addresses deforestation deemed to be illegal in the origin country. Zac Goldsmith the former Environment Minister echoed these apprehensions. In effect the limitation of the legislation means that deforestation activities that are legally sanctioned in the country of source but are in fact harmful to the environment, will fall outside the ban.
Other concerns have been raised around the effectiveness and enforcement of the legislation as ensuring that businesses accurately report and adhere to due diligence requirements is a significant challenge. Large businesses operating in the UK with a global turnover of £50 million or more are mandated to conduct due diligence on their supply chains. This involves scrutinising the sources of key commodities such as palm oil, cocoa, soy and cattle products to ensure they are not linked to illegal deforestation.
Critics have also pointed out the potential impacts on smallholders and developing nations as well as the need for a more comprehensive strategy that encompasses both legal and illegal deforestation.
There is also concern about the UK’s alignment with international efforts. The European Union’s proposed Deforestation-Free Regulations aims to ban commodities linked to illegal deforestation or legal deforestation carried out after 2020 from entering the EU making it a much broader scope than the UK’s proposals. Whilst there are some similarities in their approaches there are also differences. Being aligned can lead to more effective strategies in combating deforestation as it ensures a larger market is adhering to the similar standards thereby exerting greater influence on international supply chains.
Whilst the introduction of the UK’s deforestation due diligence legislation is an important initiative in environmental protection it will require effective enforcement. Even though companies are required to report on their supply chains without enforcement there is a risk of inaccurate or incomplete reporting making it difficult to gauge the true impact of the legislation. It is anticipated that DEFRA will be the enforcing authority but this has not yet been confirmed.
In conclusion the legislation highlights the challenges involved in effectively combating global deforestation. As the UK strives to meets its ambitious “30 by 30” conservation target continuous evaluation and adaption of policies will be essential to combat deforestation and its impacts on global ecosystems and climate change.
Out of their depth? Multiple failures by the Environment Agency investigation into toxic pollution at Cunsey Beck
An independent report into an investigation by the Environment Agency (EA) into serious pollution of a stream feeding into Lake Windermere has found multiple issues with the investigation. The report, which was obtained by the group “Wildfish”, and which was undertaken by the Scottish Environment Protection Agency (SEPA) concludes that the EA failed to properly investigate the serious pollution in the summer of 2022 that devastated Cunsey Beck, a site of special scientific interest, which killed hundreds of fish.
The pollution of the beck, which feeds into England’s largest lake, and an area of outstanding natural beauty was considered to be a category 1 pollution event by the EA, which is the most serious. The EA said it was suspected that 100% of life within the river had been killed.
The original investigation undertaken never identified the cause of the toxic event.
The investigation did however rule out the wastewater treatment outfall near Sawrey, a United Utilities treatment works that discharges into the beck. SEPA has now concluded that there was insufficient evidence gathered by the EA investigators to be able to do this.
The campaign group “Save Windermere” says that the revelations provide crucial evidence of failings. They have called for an independent inquiry into regulation by the EA in the Cumbria and Lancashire region, the resignation of the board, and action to properly regulate and scrutinise United Utilities.
The review found that the Environment Agency: (i) did not have a clear approach to the investigation, with regards to identifying and eliminating potential sources, (ii) there was an absence of documented witness interviews, (iii) there was a failure to carry out post-mortems on the dead fish, and (iv) a limited number of sampling locations were used on Cunsey Beck. The Scottish Environmental Agency stated that this “investigation was not carried out in the way SEPA would expect for an incident of this type.”
Currently, Windermere suffers from the impact of pollution from many sources. A large proportion of the phosphorus entering into the lake comes from wastewater treatment works releasing untreated and treated sewage. Last year, it was estimated illegal dumping of raw sewage into Lake Windermere took place on up to 70 days. This year the lake had its worst summer of harmful algal blooms.
The incident has caused significant damage, and without certainty as to who caused the pollution, the Environment Agency have been unable to act. But this report sheds light on a different issue, as to whether better investigation tactics should be used by the EA. Whether the report has any lasting affect on the investigation, or the EA as a whole, is yet to be clear.
Welsh government plans to recruit a deputy interim environmental assessor
In the aftermath of the of the EU referendum, environmental groups raised concerns about gaps in environmental governance. The Environmental Act established the Office for Environmental Protection (OEP) in both England and Northern Ireland. Environmental Standards Scotland (ESS) was created in Scotland. Wales however, has still failed to establish an environmental governance body and organisations such as Wales Environment Link have gone as far as to suggest that Wales now has “the weakest environmental governance structures in western Europe”.
An Interim Environmental Protection Assessor (IEPAW), Dr Nerys Llewelyn Jones, was appointed however no strides have been made since 2018 when the Government first promised to legislate to address the governance gap.
In September 2023, the Senedd’s Climate Change, Environment and Infrastructure Committee stated that it will be an “unforgivable failure of this Welsh Government if the new body is not fully operational before the end of its term in office”.
It is quite possible we will see this change in the new year as Welsh first minister Mark Drakeford told the Senedd has committed in June to publishing a White Paper in January 2024 for a Bill to establish a governance body and to “introduce a statutory duty and targets to protect and restore biodiversity.”
The IEPAW has been making recommendations concerning actions that should be taken by Welsh Ministers. The Government is now expanding this by advertising for a deputy interim assessor to assist Dr Nerys Llewelyn Jones. The advert states that the deputy “will support the interim assessor in reviewing submissions received from the public and prioritising them according to seriousness and urgency, as well as producing assessments of the functioning of the law relating to serious environmental issues that arise.”
It continues: “Submissions have been received about a wide variety of topics including forestry, water pollution, hedgerows, wildlife protection, protected sites, the interaction between planning and environmental law and polychlorinated biphenyl (PCB) contamination.” The advertisement that these interim measures seek to provide
The advert states that the role of “these interim measures” is to provide “effective oversight of the implementation of environmental law in Wales following the UK’s exit from the European Union while new statutory arrangements are put in place”.
