Weekly environmental update - 5 July
5Welcome 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
Manchester Ship Canal Company v United Utilities: Clarification on the Powers of Statutory Sewerage Undertakers
The Supreme Court has released their second ruling this month. In this opportunity, the Supreme Court had to decide whether MSCC (or other parties and landowners for that matter) had the right to bring a claim under nuisance and trespass for unauthorised acts done or attributed to a statutory sewerage undertaker (in this case UU). The judgement concluded that the Water Industry Act 1991 does not allow for unauthorised discharges to be made into surface watercourses, then it must follow that any discharges not authorised by this act or any other act of parliament must be subject to compensation in the usual way under common law.
Our full review of this ruling is available here.
Finch in the minerals sector?
The Supreme Court’s recent ruling on Finch, which found that Surrey County Council failed to assess the downstream greenhouse gas emissions of the Horse Hill oil drilling project generated by the burning of oil, has significant implications for other oil and gas projects in the UK.
Among other considerations, the ruling provided that combustion emissions (scope 3) were indirect effects of the project, which should have been taken into consideration as there was “no element of conjecture about what will ultimately happen to the oil […] and a reasonable estimate can readily be made of the emissions that will occur upon its inevitable combustion”.
While the Supreme Court ruled on Finch took into consideration the characteristics of the oil and gas industry, the ruling might be applied to other industries as long as they have the same characteristics.
For this reason, there is a chance that Finch might impact the approval of the new coal mine in Cumbria, which was granted by levelling up secretary Michael Gove in December 2022.
The Supreme Court’s decision emphasized that the Environmental Impact Assessment for the Horse Hill project was flawed because it did not consider the climate impact of burning the extracted oil. This has led to questions about the legality of Gove’s approval of the Cumbria coal mine, which similarly did not account for the greenhouse gas emissions from the coal’s use. Gove’s decision letter said that the impacts of greenhouse gas emissions "from the subsequent use of the coal [...] cannot reasonably be regarded as indirect significant effects of the proposed development".
Campaign groups Friends of the Earth and South Lakes Action on Climate Change (“SLACC”) are now preparing to challenge the Cumbria mine approval in the High Court, arguing that the decision was unlawful as it failed to consider significant environmental harms by assuming that the coal mine would be carbon neutral. Additionally, SLACC contends that the new mine would not reduce global coal use but would instead replace coal from other sources, thus not mitigating climate change.
The High Court hearing, scheduled between 16 and 18 July, will address how the UK government’s decision to approve the coal mine dealt with greenhouse gas emissions.
The Supreme Court’s ruling on the Horse Hill case has also influenced legal challenges against the development of Rosebank, the UK’s largest untapped North Sea oilfield.
“First of a kind” statutory nuisance complaint
Last week, Save Windermere, represented by the environmental barrister Nicholas Ostrowski, submitted a statutory nuisance complaint over sewage pollution flowing into England’s largest lake Windermere. The Westmorland and Furness council is to determine whether an abatement notice should be served as per the Environmental Act 1990 (“EPA”) for unreasonably and substantially interfering with the use or enjoyment of a home or other premises. According to Save Windermere this constitutes a nuisance under s79(1)(e) of the EPA.
The campaigners have stated that, this is the “first complaint of its kind in the UK against a water company”. Due to the lack of a fit for purpose regulator, Save Windermere has had to step up in holding United Utilities accountable for the continuing damage they are causing in prioritising their dividend return over environment protection.
The complaint highlights numerous incidents since the 25th March 2023 of untreated sewage being released into the lake, which is situated in a UNESCO World Heritage Site. In addition to this, more discharges have been revealed by Professor Peter Hammond’s analysis of United Utilities’ data relating to the period between 2018 and 2022.
If Save Windermere is successful in this complaint, United Utilities would be served with an abatement notice, and could face a criminal prosecution if the notice is not complied with. Such an outcome would have ramifications nationwide.
The Council is now considering the complaint and have until the 8th July 2024 to decide on the investigation.
United Utilities responded highlighting their significant investments worth tens of millions of pounds upgrading wastewater treatment sites, pumping stations and sewers around Windermere as well as their contributions to phosphorus reduction in Windermere and their involvement with organisations that impact water quality in the lake to deliver the change that we all want to see. Their further investment into the Windermere catchment to reduce storm overflow operation at Elterwater, Hawkshead, Ambleside and Near Sawrey is also underway. This will reduce spills by 50% on 2022 figures and is expected to reduce total phosphorus by a further 4% and 8% in the two basins of Windermere.
Furthermore, United Utilities was recently involved in a case against Manchester Ship Canal Co Ltd where the judges stated that a claim can be brought against United Utilities over sewage dumps.
High Court Ruling: Water Companies’ Charges for CON29DW Information Upheld
Despite the blow handed to water companies this week in Manchester Ship Canal Company Ltd v United Utilities Water Ltd, the water companies were handed some positive news in the High Court at the end of June.
A number of conveyancing search providers brought a claim in the High Court maintaining they had been overcharged for a decade for the information needed to complete a CON29DW as this information was considered “environmental information” within the meaning of the Environmental Information Regulations 2004 (“EIR”) and should therefore be made freely available or made available for a reasonable charge.
However, the High Court found the majority of the information was not “environmental information” for these purposes.
The claim was brought by 14 claimants and defended by nine English water and sewerage utility companies who sell the searches commercially. The claimants sought damages for the charges they believed had been paid under a mistake of law and/or unlawfully, which had unjustly enriched the water companies.
Ultimately, the Court found that while 11 of the answers to the CON29DW were ‘environmental information’ for the purposes of the EIR, 14 were not and therefore the EIR does not govern the amount that can be charged for the information.
Richard Smith J said, “No question of severance or apportionment of charges arises because customers were paying for the commercial service encompassing and implicating all the information contained in the report, whether or not some of it also happened to be EI” and it was found water companies were “doing considerably more than meeting requests” for environment information when responding to CON29DW orders.
The Court also held that water companies provided far stronger assurances as to the accuracy of the information when responding to a CON29DW than is required by EIR. Ultimately, it was found the water companies are entitled to set the charges levied for the searches.
In his concluding statements, Richard Smith J said “On a final note, it is striking that more than 10 years have passed since the first CON29DW in this case was purchased, more than four since the issue of the first claim form…Something has gone wrong here and I trust that all parties will reflect on my findings and give meaningful consideration to whether this dispute is now capable of resolution other than through the Court's process.”
Chris Packham granted additional ground of challenge in upcoming Judicial Review against the Government
Back in March, we covered the update in our Round-Up that Chris Packham had been granted approval by the High Court to bring a legal challenge, on three out of the five grounds put forward, against the government’s decision to delay a series of green pledges, including their decision to remove the time limit on phasing out petrol and diesel cars and vans.
Following an application made by Packham’s lawyers back in February, last week the High Court granted permission for a fourth additional ground to be challenged in the Judicial Review hearing set to take place on 12 – 13 November later this year.
This fourth ground seeks to argue that these roll-backs in government policy breached a duty to inform the public of the reasoning behind policy changes.
When the current Prime Minister Rishi Sunak announced the delays in implementing these policies, he did not confirm why these policies had been delayed nor how the Government would still be on track to meet its sixth Carbon Budget as required by section 13 and 14 of the Climate Change Act.
Wild Boar in European Parks: Bio-Indicators of PFAS Contamination
In a recent study conducted by experts from The James Hutton Institute of Aberdeen and the University of Graz in Austria alarming levels of PFAS (per-and polyfluoroalkyl substances) commonly referred as “forever chemicals” have been discovered in wild boars from the Bohemian Forest National Park in the Czech Republic. This discovery has raised significant concerns due to the potential health risks associated with PFAS exposure.
PFAS are known for their persistence in the environment with some taking more than a thousand years to break down. They have been linked to serious health issues such as testicular cancer, thyroid disease, increased cholesterol levels, liver damage, fertility problems and harm to unborn children. These chemicals have important uses in thousands of products ranging from non-stick pans to medical devices and firefighting foam making their presence pervasive and challenging to mitigate.
The study was led by researcher Viktoria Muller during her PhD research which analysed liver samples from 30 wild boars collected as part of routine population control measures in the National Park. The results revealed median PFAS levels of approximately 230ug/kg in the livers nearly five times higher than the maximum allowable limit for game offal under EU regulations. This finding is particularly concerning as wild boar meat and offal are consumed by humans raising potential exposure risks.
Comparing these findings to a previous study in northeast Germany wild boars from the Bohemian National Park were found to have twice the amount of PFAS. This disparity underscores the variability of PFAS contamination across different regions and environments. Whilst the specific sources of contamination require further investigation the presence of PFAS at such high concentrations demands immediate attention and comprehensive studies to assess environmental risks and potential mitigation strategies.
The implications of these findings extend beyond wildlife conservation, highlighting broader environmental and public health concerns associated with PFAS contamination.
In the US and the EU there are efforts underway to establish more stringent controls but according to The Royal Society of Chemistry the UK is lagging behind both the US and the EU in establishing more stringent controls particularly about the amount of level allowed in our drinking water. The Society is calling on the UK government to overhaul drinking water standards in relation to PFAS following a new analysis that showed that more than a third of water courses tested in England and Wales contain medium or high-risk levels of PFAS. The Society has five simple action points for the UK government which include not only a cap of the amount allowed in drinking water but also to ensure that the many hundreds of sources of PFAS are reported and captured in a national inventory; to impose and enforce stricter regulatory limits on allowable levels of PFAS in industrial discharges and to set up a national chemical regulator to provide better strategic coordination of monitoring and regulation of all chemicals including PFAS.
Addressing PFAS contamination should be a significant concern for the new UK government coming into power on 4th July. There is growing consumer awareness and concern about PFAS in everyday products such as food packaging and textiles not only in the US and the EU but also in the UK. By dealing with these concerns the new government could drive consumer confidence and increase business confidence towards investing in innovative safer alternatives and promote sustainable practices in industry. In supporting research on PFAS contamination and its impacts it could provide evidence-based guidance for policy development and implementation. Establishing comprehensive regulatory frameworks that limit PFAS use, reduce emissions and set safe exposure limits is essential for mitigating environmental and health risks.
In conclusion PFAS contamination presents a multifaceted challenge requiring coordinated efforts across scientific regulatory and public policy domains. By the new UK government (whoever that may be) addressing this issue comprehensively it will not only protect public health and the environment but also demonstrate proactive leadership and therefore should be a priority for any new UK government to address the serious concerns about PFAS promptly and effectively.
