Environmental Weekly News Round Up – 2 February 2024

Welcome to the latest edition of our weekly Environment Law news update. As ever, we bring you developments, insights, and analysis in the world of environmental law.

The following covers the recent proposals in Wales for environmental principles, governance, and biodiversity targets, as well as the Norwegian court judgment invalidating three oil and gas drilling permits based on inadequate assessment of climate impacts. It also touches upon the ongoing battle for the right to clean air and the protests against the expansion of Farnborough airport.

Wales unveils proposal for new environmental principles, environmental authority and nature recovery framework

Wales has published the consultation on the White Paper “Securing a Sustainable Future – Environmental Principles, Governance and Biodiversity targets for a Greener Wales”

This White Paper sets out proposals to introduce a bill into the Welsh Parliament / Sennedd to embed environmental principles into Welsh law, establish a new Environmental Governance Body that will oversee compliance with environmental law by Welsh public authorities, and introduce a new Wales Nature Recovery Framework. 

The White Paper provides that the bill will reflect the EU environmental principles including: (i) integration, (ii) Precautionary, (iii) Prevention, (iv) Rectification at source, and (v) Polluter pays. These principles will be supported by an “overarching objective” around aiming to ensure environmental protection and improving the quality of the environment in Wales. The bill will also impose a duty on Welsh Ministers to publish guidance regarding how the environmental principles are intended to be interpreted.

The proposed Environmental Governance Body (“EGB”) in Wales will have an overseeing role akin the Office for Environmental Protection (“OEP”) in England, and the Environmental Standards Scotland (“ESS”) in Scotland. to achieve this purpose, clear objectives will be given to the EGB including: (i) monitoring and advising Welsh Ministers on the development of environmental law and policy, (ii) receiving complaints from the public regarding failures to comply with environmental law by public authorities, (iii) monitor the implementation of environmental law by Welsh Ministers and public authorities, among other objectives.

Currently, Wales does not have a permanent environmental governance body in place. However, an Interim Environmental Protection Assessor for Wales (“IEPAW”) was appointed on 1 March 2021. While IEPAW does not have statutory powers to investigate and enforce, the white paper recognized it has carried out a valuable role and provided that the bill will seek to build on the IEPAW’s work.

The proposed "Wales Nature Recovery Framework" will include: (i) statutory biodiversity targets "comprising a headline nature positive target in the bill and a suite of supporting biodiversity targets to be set by the Welsh ministers in secondary legislation", (ii) monitoring, reporting and scrutiny requirements for headline and supporting targets, (iii) a Nature Recovery Strategy including long-term goals, (iv) a Nature Recovery Action Plan listing actions needed to achieve the statutory biodiversity targets, and (v) Local Nature Recovery Plans to be produced by Welsh public authorities.

The White Paper provides that high-level topics for the supporting biodiversity targets could include:

• Species (distribution, abundance and extinction risk) aimed at halting and reversing the decline in our wildlife populations.
• Habitat (protection, management and restoration) recognising the need to protect and restore some of the key habitats (such as grasslands, hay meadows, moorland, marches, peat bogs, river, coastal or marine) including those recognised as protected areas as such sites are key to driving nature’s recovery, and improving their condition is essential in meeting the environmental targets.
• Ecosystem health, resilience and restoration in recognition of the key role ecosystems play in contributing valuable services which underpin Wales health and wellbeing.

Norwegian court judgment invalidates three oil and gas drilling permits 

In January, Oslo district court blocked the development of three oil and gas fields in the North Sea. This was on the basis the state had not properly assessed the impact of future fossil fuel on climate change as they hadn't accounted for the climate impacts of burning the oil and gas that would be extracted.

Norway is the largest oil and gas producer in Europe and the challenge was brought by Greenpeace Nordic and Natur og Ungdom (the youth branch of Friends of the Earth in Norway). 

The Oslo district court were following a precedent set by the Norwegian Supreme Court (in N Supreme Court case: Greenpeace Nordic Ass’n v. Ministry of Petroleum and Energy (People v Arctic Oil)), a previous case brought by the same NGOs. The judgment confirms the government must consider the emissions that come from the burning of oil and gas in addition to the emissions of getting the reserves out of the ground. This is to be the case even if the fossil fuels are burned outside of Norway. 

Tessa Khan of climate action organisation Uplift has said:

“The legal win has already had a seismic impact in Norway, where opposition MPs are now calling for any oil and gas development approved after 2020 to be invalidated. This is incredible progress in a country whose population is invested in oil and gas production in a way not seen in the UK, given that its huge national wealth fund is built on oil and gas profits.”

And many are waiting to see what impact the judgment will have in the UK. The UK Supreme Court is due to rule in the challenge brought by campaigner Sarah Finch against the decision to grant permission for oil to be drilled at Horse Hill in Surrey (Supreme Court’s Case ID: 2022/0064). One of the grounds centres on the fact only production emissions were taken into account, and the future emissions were not.  

The Finch case will set an important domestic precedent about whether future greenhouse gas emissions of a fossil fuel project should be considered in the environmental impact assessment, and the UK Supreme Court judges had asked questions about the Norwegian Supreme Court case during proceedings. 

There are already a number of other domestic cases which the judgements will be relevant to. Both Norwegian decisions relate to the interpretation of the EU’s Environmental Impact Assessment Directive which, despite Brexit, has been transposed into UK domestic law. The scope of environmental impact assessments is a live question in a number of challenges, including those to the Rosebank oil field and Jackdaw gas field, in addition to Finch. 

Updates in the ongoing battle for the Right to Clean Air

Over 10 years after the death of Ella Adoo-Kissi-Debrah, her mother Rosamund Adoo-Kissi is still fighting to establish a legal “right to clean air”. 

Ella passed away after a fatal heart attack in 2013. She lived 35m from the South Circular Road in Lewisham (South-East London) and is the first person to have “air pollution” listed on her death certificate after the Southwark Coroner's Court found that it made a material contribution to her death. It was determined that the levels of nitrogen dioxide (an urban air pollutant that comes largely from traffic and industrial plants) near her home had exceeded World Health Organization (“WHO”) and European Union guidelines.

Mrs Adoo-Kissi, as the administrator of her daughter’s estate sued three government departments –Department for Environment, Food and Rural Affairs (“DEFRA”), Department for Transport (“DfT”), and Department of Health and Social Care (“DHSC”)– for compensation over her 9-year-old daughter’s illness and premature death, alleging breaches of Article 2, 3 and 8 of the European Convention of Human Rights and Articles 13 and 23 of the EU Directive 2008/50/EC. 

The claim was recently heard by the High Court at a case management hearing on 25 January 2024.

The personal injury case is said to be the first of its kind with Ravi Mehta, representing Ms Adoo-Kissi-Debrah, stating that “The wider significance of the claim is obvious. If successful, it will be the first claim to establish what Rosamund has described as the right to clean air under the Human Rights Act."

Colin Thomann, who represents the government, is disputing this claim. Mr Thomann states that the government’s actions do not amount to a breach of human rights. He has also stated that Mrs Adoo-Kissi’s lawyers have “significantly overestimated” any potential damages that might be awarded (they believe the claim to be worth £293,156, but the Government considers the maximum the claim could be worth is £30,000 if successful). 

Judge David Cook has said a further hearing should be held on 15 July 2024. 

Residents protest against the expansion of Farnborough airport. 

Farnborough Airport Ltd has submitted a planning application to Rushmoor borough council to increase the number of flights from the airport from 50,000 to 70,000 per year. The planning application was posted on November 2023 and can be read here: Farnborough Airport Planning Application

If approved, the airport plans will result in an increase in aircraft movements and would allow heavier aircraft to use the airport. Traditionally, the airport mainly serves private jets, and have said that the change would meet demand for business trips. 

Residents are unhappy with the proposal, with 2,777 public comments posted – many of them objections. This week, there have been a large number of residents protesting, who are calling for a total ban on private jets. 

The protestors have been setting off pink smoke flares and waved banners that called for a total ban on private jets. They say that the jets are up to 30 times more polluting than passenger airlines. Greta Thunberg, a climate activist joined residents in their protests.

Farnborough airport disagrees, arguing that their environmental footprint is “a fraction that of a traditional commercial airport”, and they are one of the largest employment sites within the region. They expect the proposal would create 950 jobs in the south-east of England and will add £220m to the UK economy. A spokesperson from the airport said that the “facility is an important gateway for business aviation connectivity with the majority of flights being operated for business and corporate travel purposes.” The airport is one of a small number of UK airports to have achieved level four-plus under the airport carbon accreditation scheme. 

The expected determination deadline is the 09 Feb 2024. However, East Hampshire District Council has said that the plans would undermine efforts to reduce carbon emissions and would increase noise pollution.