Environment weekly news roundup – 28 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
UK elections: There is always hope for net zero policies and climate change
With the general election just around the corner let’s have another look at some policy making and what is supposedly to come.
According to Mission Zero Coalition’s new report, the UK has gone from a climate leader and being the first national government to enshrine a binding net-zero target in law five years ago, to now being seen as a less attractive clean energy investment destination than the US, China, Germany, France and Australia.
The prime minister is focusing on policies aimed at decarbonizing road transport and home heating. His party has also disagreed with recommendations from the Climate Change Committee on issues like aviation decarbonization and food production transitions and are ruling out creating new levies.
Labour promises a faster clean energy transition, increased energy efficiency spending, and a new green industrial strategy. However, their commitment to green economy investment has been scaled back, and their manifesto lacks explicit mention of making the net-zero strategy legally binding.
The Liberal Democrats are also committed to implement national law changes made at COP28; pledging to meet the UK’s national determined contribution and to implement the carbon border adjustment mechanism for high-emission products. As such, they are aiming to protect UK businesses from unfair competition in relation to products manufactured in countries where there are no or less carbon taxes.
The emphasis is on the need for long-term certainty and a clear roadmap for net-zero, as this could unlock significant inward investment, potentially up to £1 trillion this decade. A failure to provide this certainty could leave the UK further behind, causing multinational energy investors diverting funds to more supportive policy landscapes abroad.
In relation to finance, Labour would put pressure on UK-regulated financial institutions and FTSE 100 companies to develop and implement credible transition plans aiming to limit the temperature increase to 1.5 °C as per the goal of the Paris Agreement.
Conservatives are relying on their ambition to make the UK “green finance capital of the world”. They pledge to ring-fence the UK’s contributions to International Climate Finance, and to publish a new Soft Power Strategy.
The Liberal Democrats are suggesting requirements for targets and reports on progress and achieving net zero emissions for big companies, promoting climate friendly investments and push for new powers for regulators to penalise proper management of climate risk.
Their other plans include nature and adaptation, plastic pollution and waste, water, transport, public procurement, tax implications… more information can be found in the matrix following the link below.
More detail of the above is shown in EDIE’s ‘matrix’ outlining green policy pledges at a glance.
Whatever the result may be, climate change is a significant concern for voter and there is a call for action from political parties. Let’s see what autumn has in for us!
High Court Dismisses EA’s Interim Injunction Claim Against HS2
Last month, the Environment Agency (“EA”) applied to the High Court for an interim injunction, to temporarily prohibit HS2 and its contractor from carrying out some earthworks until the EA had been given the opportunity to consider the plans for the works or an arbitration process between the parties had concluded.
The EA specifically looked to halt works at Glasshouse Wood Cutting and Stonehouse Cutting (collectively the “Cuttings”) in Warwickshire as they are located within bodies of water designated as “poor”, meaning several surface watercourses requiring groundwater are failing and groundwater abstraction exceeds available resources.
The dispute centred around whether the full excavation works at the Cuttings required HS2 to seek approval from the EA under schedule 33 pf the High Speed Rail (London - West Midlands) Act 2017 – which disapplies usual legislative framework for the abstraction of water.
However, ultimately, the High Court found the EA did not meet the threshold of evidence for an interim injunction and so dismissed the claim.
Justice Joanna Smith observed:
“[…] it is extremely unfortunate that these two bodies, both ultimately funded by the taxpayer, have been unable to resolve the issues that arise in this case; issues of which they have been aware for some considerable time. In my judgment it is now crucial that the extant issues between the parties are resolved as soon as possible and I would urge both parties to cooperate in seeking an expeditious resolution through the arbitral process”.
Slurry Store Collapse Results in Thousands of Gallons of Slurry Polluting a Watercourse
The Welsh government have allocated £1.5 million to help farmers enhance water quality and an additional £11.5 million in capital funding directly supporting farm businesses in improving nutrient management infrastructure amongst the pressing agricultural pollution issues in Wales but despite this significant investment by the Welsh government water pollution incidents are still on the rise.
In 2022, Natural Resources Wales (“NRW”) received 2566 water related reports across the UK representing 31% of the total reported incidents.
Although not all the reported incidents are in relation to incidents related to agricultural practices, there was a significant case of agricultural pollution of a water course reported just this week. NRW recently prosecuted Rhydsais Cyf, a farming business, following the “catastrophic collapse” of its slurry store on February 16, 2022. The collapse resulted in the release of 60,000 to 70,000 gallons of slurry into an unnamed tributary of the Afon Clettwr Fach near Talgarreg in Ceredigion.
The Afon Clettwr Fach feeds into the Afon Clettwr, which eventually flows into the Afon Teifi, a Site of Special Scientific Interest.
NRW reported that on the day of the incident, the downstream river exhibited heavy discoloration, foam, and a strong slurry odour. Water sample analysis revealed significant pollution levels extending 12 kilometres from Rhydsais Farm to the confluence of the Afon Clettwr with the Afon Teifi.
Although six dead fish were found in the Afon Clettwr Fach the day after the incident, NRW believes this likely underestimates the total fish kill due to poor visibility caused by the pollution and high river flow following rain.
Simultaneously, Dŵr Cymru Welsh Water alerted NRW to unusually high ammonia levels detected at the Llechryd Water Treatment Works abstraction point, which supplies water to properties in south Ceredigion. The abstraction point was promptly closed until ammonia levels normalized.
NRW highlighted that the slurry store, in place since the 1970s, had not received formal maintenance beyond visual inspections in the past decade.
The farming business was found guilty of an offence under the Environmental Permitting (England & Wales) Regulations 2016 and was ordered to pay a total of £13,035, including a £5,000 fine, a victim surcharge of £190, and £7,845 toward NRW’s prosecution costs.
Dr Carol Fielding, team leader of the Ceredigion Environment Team, emphasized the severity of the environmental damage, stating that it affected water quality and local wildlife within the Afon Teifi catchment.
Whilst prosecutions serve as a necessary deterrent in cases where significant environmental harm has been caused, there is a growing recognition that fines alone may not be the most effective solution particularly in relation to the water pollutions. The UK government has established a Water Restoration Fund which utilises the funds from fines for water pollution offences by water companies to restore water courses. If this fund was established to include not only water companies but any entity/person throughout England and Wales, it could result in more positive outcomes for both the environment and affected communities.
Appeal launched against Environment Agency over agricultural pollution in the River Wye
Last week, the campaign group River Action announced that they had applied to appeal last month’s High Court decision to dismiss their appeal.
River Action brought the claim alleging that the EA had failed as a regulator to stop farmers releasing excessive amounts of fertiliser into the River Wye. However, Hon Mr Justice Dove dismissed the claim and held that the EA’s approach to enforcement in relation to the River Wye Special Area of Conservation was lawful.
The appeal seeks to challenge Ground 3 of their claim, namely that the EA had failed to have regard to the requirements of the Habitats Regulations in undertaking its enforcement activity.
When the case was heard, River Action sought to rely on Harris v EA which concluded that the EA had failed to discharge its duty under the Habitats Regulations 2017 because it was the only enforcement agency with the power to review water abstraction licences.
River Action argued the same principle applied in this case arguing that the EA is the only enforcement agency who can enforce the Farming Rules for Water. However, this was dismissed by the Judge who held there are numerous potential sources capable of contributing to the phosphorus pollution of the River Wye which fall under other regulatory regimes outside of the EA’s authority.
