Environment weekly news round up - 21 June
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.
NEWS ROUND UP
New era for scope 3 emissions in planning applications? Supreme Court rules in favour of Finch
This week, the Supreme Court has released its long-awaited ruling on the Finch case after around a year of deliberation. The judgement concluded that scope 3 emissions must be considered as an indirect environmental effect and should be considered as part of the Environmental Impact Assessment (EIA) of planning applications. While the ruling seems to be limited only to the oil and gas industry, it is yet to be seen whether its ramifications might affect other industries.
Our review of this ruling is available here.
National Adaptation Programme: potential breach of human rights
The government will be defending a claim for judicial review in relation to its climate adaptation plan, in a first case of its kind. The hearing was listed for this week, on 18 June 2024, but was adjourned until 23 July 2024.
Friends of the Earth and two co-claimants will argue that the Government is breaching human rights laws in failing to protect people, property, and infrastructure from foreseeable impacts of climate change. At a two-day hearing in the High Court, they will argue that the National Adaptation Plan 3 (“NAP3”) is unlawful as it breaches the Climate Change Act 2008 for failing to set out lawful “adaptation objectives”, and for failing to consider and publish an assessment of the risks to delivery of the plans and policies included.
The co-claimants, Doug Paulley and Kevin Jordan, say that their lives have been severely impacted by the climate crisis. Mr Paulley is a disability activist who has a number of health conditions made worse by the searing summer temperatures, putting him at increased risk of serious harm, as well as causing great distress and discomfort. Mr Jordan has recently been made homeless, following a coastal erosion fuelled by sea level rise and severe storms, which caused a demolition of his house in Hemsby, Norfolk. In the last 10 years, further 17 homes have been swept away or demolished over in this area due to coastal erosion fuelled by rising sea levels.
Those are just two examples of the consequences of climate change, which disproportionally affects people living in vulnerable situations, like older or disabled people and those living in areas most at risk from climate change.
The recent landmark judgement of the European Court of Human Rights in the case Verein KlimaSeniorinnen Schweiz and Others v. Switzerland recognised climate change as a significant threat to human rights. At the hearing in July, Friends of the Earth will argue that NAP3 breaches section 6 of the Human Rights Act 1998 by unlawfully interfering with the individual co-claimants’ rights. They are also expected to put pressure on DEFRA for failing to lawfully assess the unequal impacts on the NAP3 on protected groups under the Equality Act 2010 in line with the “public sector equality duty”.
This could represent an important step towards strengthening climate governance in the UK and upholding human rights standards in this area of policymaking. It is suggested that the government must step up in prioritising improvement in the plans for delivering climate adaptation in the UK for everyone, especially for the ones at most risk.
UKELA Annual Conference 2024
Last week, the UK Environmental Law Association (“UKELA”) hold their Annual National Conference in Manchester. This important event is in line with UKELA’s objective of being a forum which aims to improve environmental law along with increase people’s understanding and awareness of environmental law.
The Conference saw a total of 300 delegates across their online and in person events from around the UK. Attendees came from a variety of different sectors including legal, regulatory bodies, consultants, insurance, utilities and higher education.
This year’s Conference theme was, “Environmental Law within a Shifting Political Landscape” and saw just under 20 different seminar topics delivered over the four-day Conference with over 60 different speakers across a variety of industry specialists. Giving attendees a unique opportunity to engage in discussion, debate and collaboration across a broad range of disciplines.
Our Irwin Mitchell’s Environmental team was proud to be a sponsor of this conference and to actively participate during the whole duration of this event. Below, some of our colleagues provide key take aways from relevant topics brought up by the speakers.
The Path to Nature Recovery: Key Takeaways from the UKELA 2024 Conference, by Jill Crawford
As I recently attended the UKELA (UK Environmental Law Association) conference, my contribution for this week’s round up is about what in my view was the most informative and thought-provoking seminar “The Role of Protected Sites in Nature Conservation”. The three speakers were Richard Broadbent Legal Director at Freeths and former Head of Legal Service Natural England, Dr Eunice Pinn Marine Indicators Advisor NatureScot, and Tim Graham Senior Leading Nature Recovery and Finance Scalable Solutions RSK Wilding.
This seminar provided a comprehensive examination of the UK’s protected nature sites, their current condition and the legal frameworks that support nature recovery. It was thought provoking as it highlighted both successes and areas needing improvement, offering a clear path forward for the future of nature conservation in the UK.
Richard Broadbent delved into the concept (amongst others) of dynamism in conservation, emphasising its critical importance as dynamism allows for natural processes and movements across the landscape which are essential for many species and particularly birds. The significance of conservation covenants was discussed which offers new tools for protecting biodiversity on private lands. The role of the Office for Environmental Protection (“OEP”) and proposed reforms to the current Habitats Regulations were also examined showcasing the potential for a robust framework for future conservation efforts.
Richard also discussed the UK government’s Environmental Improvement Plan which aims to enhance environmental protection across various tiers of designated sites (Tier 1, 2 and 3).
Richard issued a word of caution regarding the government’s habit of setting ambitious targets under the Environment Act and then failing to meet them. This pattern of setting targets without achieving previous ones has resulted in a lack of tangible progress. It is important in terms of accountability to ensure that these targets lead to real and meaningful conservation outcomes rather than becoming empty promises.
Dr Eunice Pinn shifted the focus to the marine environment discussing newly established protection zones aimed at preserving marine biodiversity. A particularly compelling case study was presented on the Moray Firth dolphins. The study demonstrated that targeted actions to mitigate the impacts of noise, marine activities and pollution on marine habitat by creating protected areas have led to significant increase in the dolphin population. This success story underscored the importance of a holistic approach involving collaboration between various bodies to protect the marine ecosystems effectively. She also touched on the Southern North Sea SAC (Special Area of Conservation) designated in 2019 which plays a crucial role in protecting harbour porpoises. This SAC exemplifies the positive impact of well-planned marine protection zones although countered this with that much more needs to be done.
The complex issue of decommissioning oil rigs was also raised with her exploring the debate on whether it is better for the marine environment to leave the structures in place or to remove them. On the one hand leaving the rigs can create artificial reefs that benefit marine life while on the other hand removal may be necessary to prevent long-term environmental hazards. This ongoing discussion highlights the need for careful consideration of ecological, economic and safety factors in decision-making processes.
Dr Pimm welcomed the industrial fishing for sand eels in the UK as sand eels as she pointed out are a crucial food source for many marine species including birds and larger fish. Protecting these small but vital creatures can have a ripple effect leading to healthier and more resilient marine ecosystem.
With an increase in off-shore wind farms which are crucial for renewable energy development and carbon emissions the installation can disrupt marine habitats and therefore the balance between environmental impact and benefits is a subject of on-going research and careful planning to minimise negative effects.
Tim Graham discussed the concept of re-wilding a bold and innovative approach to conservation that aims to restore natural processes and wilderness areas. This approach involves reintroducing native species and allowing natural habitats to recover with minimal human intervention. He argued that re-wilding can play a crucial role in addressing habitat and species loss fostering more resilient ecosystems.
He also emphasised the goal of becoming “nature positive” by 2030 aiming for full recovery by 2050. This ambitious plan aligns with global efforts to halt biodiversity loss and restore ecosystems. Achieving these targets will require concerted efforts from all sectors of society including governments businesses and communities.
Finally, Tim highlighted the importance of the IUCN Green List of Protected and Conserved Areas Standard Version 1.1. This standard provides a global benchmark for evaluation the effectiveness of protected areas ensuring that they are managed in ways that deliver measurable conservation outcomes. Adopting this standard can help ensure that protected areas contribute meaningfully to biodiversity conservation and ecosystem health.
Reflections and Future Directions: Overall, I found the seminar a compelling exploration of the state of nature conservation in the UK. It highlighted the critical role of protected sites and the need for dynamic large scale conservation strategies. The discussions on marine protected zones, rewilding and international standards provided valuable insights into the innovative approaches that can enhance biodiversity and ecosystem health.
The seminar for me underscored the importance of legal frameworks such as the Environment Act and Habitats Regulations in safeguarding nature. It also emphasised the need for ongoing reforms and the active involvement of governmental and non-governmental organisations in conservation efforts.
Navigating Environmental Information Disclosure: Key Takeaways from the UKELA 2024 Conference, by Elizabeth Mutter
At the UKELA annual conference 2024, Katharine Elliot of Landmark Chambers provided a useful update of where we currently are access to environmental information. Perhaps not always a topic at the forefront of the minds of environmental practitioners but something that does arise quite often, whether as a party trying to obtain environmental information or a body seeking to withhold information from disclosure.
The Environmental Information Regulations 2004 (“EIR”) came into force in 2005 as part of a European Directive. The EIR requires public authorities to disclose environmental information requested of them. This is similar to, but importantly distinct from, the Freedom of Information Act (“FOIA”) requirements.
For information requests made under the EIR, much like FOIA, a public authority can refuse to disclose information if a specified exception applies. However, unlike FOIA, a public interest test must be carried out on every occasion to decide whether the exception outweighs the public interest in disclosure.
The conference provided a useful reminder of the impact Brexit has had on the EIR and our interpretation of relevant case law. EIR is still applicable following the end of the transition period and all European Court of Justice cases that relate to the EIR (or the European Directive) that were issued before the end of the transition period continue to have effect in our domestic law. It is therefore key to our own interpretation of the EIR.
However, this does not mean post-transition CJEU decisions are not to carry any weight. Although no longer binding, UK courts may still have regard to European decisions.
There was also an important reminder that some private businesses could be deemed to be a public authority and therefore fall within the requirements of the EIR if they carry out public administrative functions or are under the control of a public authority. Fish Legal v Information Commissioner and others [2015] set down the principle that a private business may be considered a “public authority” for the purposes of EIR if they have powers beyond the standard powers of a private company, such as compulsory acquisition powers, power to access land, powers to lay pipes. Since this, both E.ON UK plc and Heathrow Airport Limited have been found to fall within the definition of a public authority for the purposes of EIR.
Proper application of the EIR is vital to those who fall within its powers and the conference highlighted this. Failure to meet the requirements can be costly, leading to time-consuming complaints to the Information Commissioners Office. For any questions on application of the EIR, please contact any member of the Environmental team at Irwin Mitchell.
