04.03.2024

Environmental Weekly News Round Up - 4th March 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. Also, in this occasion our Environmental Insight section addresses a recent decision of the Court of Appeal providing that the Secretary of State has no duty to consider the advice from the Climate Change Committee.

NEWS ROUND UP

EU fails to reach an agreement on Corporate Sustainability Due Diligence Directive (CSDDD also called CS3D)

On 14 December 2023, a provisional consensus was reached between representatives from the EU Council and Parliament on the CSDDD, which will require companies to take environmental and social responsibility. The CSDDD would apply to enterprises with over 500 employees and a global annual turnover exceeding 150 million euros. 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.

The final draft of the CSDDD was released on 30 January 2024 and initially appeared ready for an easy approval.

The European Council scheduled a vote for 28 February 2024. Unfortunately, several members including Germany, Italy, Bulgaria, the Czech Republic, Estonia, Finland, Hungary, Lithuania, Luxembourg, and Malta abstained from voting. Sweden voted against passing this directive. To secure approval, the draft needed the support of at least 15 EU Member States. The abstentions from voting from the countries above prevented the CSDDD from reaching this threshold.

The result of this voting is unusual a provisional consensus had already been reached last year.

One of the reasons alleged by Germany and Italy is the concern on the financial and administrative burdens that CSDDD would involve for the companies within their jurisdictions.

This leaves little chance for the approval of CSDDD before the March 15 deadline. CSDDD might need to be renegotiated once the new European Parliament is established after elections take place in 2024, which would involve a considerable delay in the approval of this directive.

Notably, after the voting France proposed a new compromise in order help the hesitant countries change their minds. This compromise involves reducing the scope of the directive by requiring only companies with more than 5,000 employees to comply with CSDDD, which is a considerable change as originally companies with over 500 employees were going to be covered by the directive.

Updates to offence response options from the Environment Agency (EA)

The offence response options documents set out the options available to every offence regulated by the EA.

The following documents have been updated:

Extant water quality provisions offences (available here)
1. Updated all of section '3. Nitrate Pollution Prevention Regulations 2015'.
2. Updated section '4. Water Industry Act 1991' to clarify the regulations and add 'compliance notice' as a civil sanction we can impose for Section 120(9) and Section 130(7) offences.
Land quality offences (available here)
1. Updated section '3. The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018'.
Waste offences (available here)
1. Added Section 59ZB(6), Section 158.
2. Added fixed penalty notice as an option for Section 5(7)(a). Added Regulation 19 and 89(2)(a)(i).
Environmental damage offences (available here)
1. Added Regulation 34(2).

Environment Agency fines 'negligent' Southern Water £330,000

Southern Water have been fined £330,000 for the negligent dumping of raw sewage and effluent into a stream near Southampton for what the company admitted could have been up to nearly 20 hours of pollution. Almost 2,000 fish were recorded as killed in the river due to faulty equipment, namely wrongly programmed relay equipment, which sent untreated effluent into the environment on the edge of the South Downs.

District judge Nicholas Wattam, at a hearing at West Hampshire Magistrates’ Court heard that after the first pump failed, a second pump failed to start, resulting in the sewage and other hazardous substances diverting up through two manholes, across fields and in to Shawford Lake Stream.

Immediately following the incident in July 2019, the Environment Agency found pools of dirty water and polluted matter and vegetation in local fields. The stream was cloudy as pollution spread across nearly 3km, where ammonia levels were recorded up to 25 times the legal limit at points.

The court heard that an alarm sounded on the failed pump just after 7am on the day of the incident, with a team to fix the issue not being deployed until around 5 hours later, and the Environment agency first hearing about the issue when a member of the public called around noon stating claims of untreated sewage, solids and tissue entering the stream.

Southern Water has been fined in the past for breach of environmental regulations. In 2021, the water company was fined £90m following widespread with the pollution of rivers and coastal waters off Kent, Surrey and Sussex. In this most recent failure, Southern Water pleaded guilty to one breach of the Environmental Permitting (England and Wales) Regulations; accounting for the fine issued.

DEFRA proposes designation of 27 new bathing water sites

The Department for Environment, Food and Rural Affairs (DEFRA) has this week proposed the largest ever rollout of new bathing water sites. Consultation on the proposals is currently running until 10 March.

A bathing water site is defined in the Bathing Water Regulations as a surface water where “the Secretary of State expects a large number of people to bathe, having regard in particular to past trends and any infrastructure or facilities provided, or other measures taken, to promote bathing at those waters", and this is the basis on which the sites have been put forwards.

The advantage of being designated is that the Environment Agency have a duty to conduct regular water monitoring of bathing water sites during the bathing season (15 May to 30 September) and to publish an annual report in relation to bathing water quality.

The list of proposed sites is below and shows an interesting shift in the type of site being considered. Currently, there are 424 bathing waters in England but only 1% of them are rivers. However, the proposed list is comprised mostly of river sites, which should hopefully mean better monitoring of the pollution in our rivers.

Church Cliff Beach, Lyme Regis, Dorset
Coastguards Beach, River Erme, Devon
Coniston Boating Centre, Coniston Water, Cumbria
Coniston Brown Howe, Coniston Water, Cumbria
Littlehaven Beach, Tyne and Wear
Manningtree Beach, Essex
Monk Coniston, Coniston Water, Cumbria
River Avon at Fordingbridge, Hampshire
River Cam at Sheep’s Green, Cambridge, Cambridgeshire
River Dart Estuary at Dittisham, Devon
River Dart Estuary at Steamer Quay, Totnes, Devon
River Dart Estuary at Stoke Gabriel, Devon
River Dart Estuary at Warfleet, Dartmouth, Devon
River Frome at Farleigh Hungerford, Somerset
River Nidd at the Lido Leisure Park in Knaresborough, North Yorkshire
River Ribble at Edisford Bridge, Lancashire
River Severn at Ironbridge, Shropshire
River Severn at Shrewsbury, Shropshire
River Stour at Sudbury, Suffolk
River Teme at Ludlow, Shropshire
River Tone in French Weir Park, Taunton, Somerset
Wallingford Beach, River Thames, Berkshire
Derwent Water, Crow Park, Keswick, Cumbria
River Wharfe at Wetherby Riverside, West Yorkshire
Goring Beach, Worthing, West Sussex
Worthing Beach House, Worthing, West Sussex
Rottingdean Beach, Rottingdean, East Sussex

ENVIRONMENTAL INSIGHT

Court of Appeal: Secretary of State has no duty to take into account the advice from the Climate Change Committee

This significant decision was made as part of the ruling in R (on the Application of Global Feedback Ltd) v Secretary of State for Environment, Food and Rural Affairs and another [2023] EWCA Civ 1549.

The impact of food on the state of the climate and the intrinsic links between the two may not, initially, seem obvious. However, when looking at the amount of carbon dioxide, and methane gas (which is 40 times more harmful to the atmosphere than carbon dioxide) generated by modern day farming domestically, and the emissions produced in the processing and transportation of foods from around the globe, it is clearer to see that our consumption of food will have a major impact on the climate. For example, it is well known that reducing the amount of meat and dairy that we consume will make a significant positive impact on climate change. Similarly, around 10% of all greenhouse gas emissions relate solely to food waste.

Recently, an environmental and food campaigning organisation, Global Feedback (Feedback) challenged the UK Government’s process for setting carbon budgets under the Climate Change Act 2008 as far as they concern or should concern food, diet and food waste. Feedback argued that the government had failed to prepare and adopt measures to reduce meat and dairy production and consumption; something that the Climate Change Committee (“CCC”) has said is essential to meet the government’s carbon budgets and the Net Zero target.

The CCC was established around 15 years ago by the Climate Change Act 2008 to advice the UK and devolved governments on emissions targets and to report to Parliament on the progress made in reducing greenhouse gas emissions and advising on the impacts of climate change. The CCC is the independent expert and statutory body for climate in the UK.

The Court of Appeal held that preparation of the Food Strategy was not something that had to be considered when producing or assessing the carbon budgets under the Climate Change Act 2008. The Court of Appeal also went on to state that the Secretary of State for Energy, Security and Net Zero, being the body responsible for ensuring carbon budgets are established and met, do not need to be aware of, take into account or give significant weight or give cogent reasons for not following the advice of the CCC (specifically in relation to diet and climate change).

This is a major blow to the CCC and surely brings in to question their efficacy and powers in the fight against climate change. The CCC have recently suggested that there is a substantial policy gap which needs to be dealt with if the UK is to meet their 2030 climate goals. This Court of Appeal decision does not assist with the policy gap and does nothing to assist with the global push towards net zero targets.