Environment news update - 15 August
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
WHO reconsiders PFAS drinking water guidelines amid criticism
The World Health Organization (WHO) is revisiting its drinking water guidelines for per- and polyfluoroalkyl substances (PFAS), specifically focusing on perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS).
The previous guideline, which set a limit of 100 nanograms per litre (ng/l), faced significant criticism for not being sufficiently protective of public health.
In contrast, the United States has established a much stricter limit of 4 ng/l for these chemicals, highlighting a stark difference in regulatory approaches. The UK’s guidelines, however, remain aligned with the WHO’s earlier standard of 100 ng/l.
The WHO’s new review process aims to address these concerns by including a panel with fewer industry-linked scientists and more regulatory officials. This change is intended to enhance the transparency and credibility of the guidelines.
Stakeholders had raised several issues with the original guidelines, including the exclusion of critical human studies and the lack of transparency regarding the contributors’ affiliations. These concerns prompted the WHO to take a closer look at the guidelines and consider revisions that better protect public health.
As the review progresses, it is expected that the WHO will adopt more stringent standards that align more closely with those of other leading health authorities. This move could have significant implications for global water safety standards and the regulation of PFAS chemicals, which are known for their persistence in the environment and potential health risks.
Court upholds development consent for gas-fired power station and carbon capture and storage project
The judgment has been handed down this week in the case of R (on the application of Boswell) v Secretary of State for Energy Security and Net Zero in which the High Court have dismissed Dr Boswell’s challenge to the Net Zero Teesside Power and Northern Endurance Partnership.
Boswell’s claim proceeded on four grounds, including that the decision was based on flawed reasoning for reaching the conclusion the development “will help deliver the Government's net zero commitment" and failed to provide legally adequate reasons for reaching this decision.
The project being challenged received development consent in February this year and would provide a gas-fired power station and carbon capture and storage (“CCS”) project.
Ultimately, the Court found no arguable errors of law in the Secretary of State’s decision. Judge Mrs Justice Leiven said the Claimant was “wilfully choosing to ignore what is said in national policy about the net zero trajectory and the need for CCS”.
She went on to add that Boswell:
“[…] plainly disagrees with the SoS's approach, and indeed that of the Climate Change Committee, in their support for this project. He is seeking to use this case as a method of challenging the policy support for the Scheme by trying to find an inconsistency in the SoS's analysis where none actually exists.”
It was concluded that
“The development was strongly supported in national policy, both planning and energy policy. It is entirely clear to any fair reader of the ExAR and the DL why the SoS supported the Scheme despite the level of emissions. The Claimant may disagree with the analysis and the weight given to different factors, but the reasoning behind the conclusions are both clear and lawful.”
Amending the “Error” in Sunnica decision
Following the recent controversial decision to approve Sunnica’s giant solar farm, four councils have united to “correct” it. The councils are seeking a legal challenge, arguing that the approval process did not adequately consider the extensive technical and administrative work required from local authorities. They have expressed concerns that this oversight could place a significant financial burden on local taxpayers. According to them, Sunnica, only has to pay a minimal amount to cover costs that will be forced upon the council, as a result of their project going ahead.
The subject decision is the development consent order for a large-scale solar farm spanning over 1,100 ha with a generating capacity of over 50MW on four sites that lie within the administrative areas of Cambridgeshire County Council, Suffolk County Council, East Cambridgeshire District Council and West Suffolk Council.
Energy Secretary Ed Miliband approved the solar farm despite inspectors advising against it. Miliband’s decision was based on the urgent need for new generation capacity to meet energy demands. There were many reasons against this decision (e.g. heritage assets, landscape and visual impacts, human health and habitat, etc.), but the SoS disagreed with substance or weight attributed to those conclusions.
The councils believe that the approval process was flawed because it did not account for the necessary funding to support the additional work required by the project.
As a first step towards potential judicial review proceedings, the councils have sent a pre-action protocol letter to the government, expressing concerns that Sunnica could avoid meeting the costs of the burden their plans for the UK’s largest solar farm will place on local authorities. They consider this means that the local people could be asked to pick up the tab for the developers’ ambitions. The Councils aim to secure appropriate funding to cover the costs associated with the project, ensuring that local taxpayers are not unfairly burdened.
Over £4 million agreed to be paid by Companies to Environmental Charities in the last 8 months following breaches of Environmental Regulations
This week, the Environment Agency has published the details of Enforcement Undertaking (“EU”) offers they’ve accepted from companies between November 2023 to 26 July 2024.
In certain circumstances where the EA are taking enforcement action against a company for breaches of environmental regulations, a company can put forward a voluntary offer to mitigate the impact of their offence. This acts as an alternative sanction to an offence which might otherwise result in criminal sanctions such as a fine and/or prosecution.
The offer usually involves a financial donation to a local wildlife project or environmental charity as a direct measure to put right the effects of their offending along with the company putting in place internal measures to prevent future offending. The EA will only consider accepting an EU offer where:
- it is not in the public interest to prosecute,
- the offer itself addresses the cause and effect of the offending, and,
- the offer protects, restores or enhances the natural capital of England.
If accepted by the EA, the offer becomes a legally binding agreement, which can then be enforced against if the terms are breached.
A total of 40 offers have been made by companies and accepted by the EA in this 8 month period, which has generated over £4 million in donations to Environmental charities following breaches under two different regulatory regimes; the Environmental Permitting (England and Wales) Regulations 2010/2016 and the Producer Responsibility Obligations (Packing and Waste) Regulations 2007 (as amended).
The list of donor companies includes high profile names such as Budweiser Budvar, Yorkshire Water, Severn Trent Water and Royal Mail. With the largest donation agreed by the EA from Severn Trent Water to the Trent River Trust for £600,000 following the discharge of effluent from Brooks Lane Pumping Station in Whitwick into a tributary in Leicestershire around 2022.
The full list and details of offers accepted can be found here.
New consultation on standard rules permit for research and development activities
The Environment Agency (EA) has announced a consultation on a new standard rules permit to facilitate research and development activities within existing industrial installations.
The proposed standard rules aim to foster innovation and improve processes associated with permitted activities under the Environmental Permitting (England and Wales) Regulations 2016. They are designed to simplify the permit application process for R&D activities by providing a fixed set of guidelines that operators must follow.
The proposed standard rules permit would need to be applied for via a variation to an installation permit and will allow a time-limited operation of R&D activities under the existing permit conditions. An operator would be allowed to carry out the R&D activities for up to 6 months, unless otherwise agreed.
Operators must first ensure that the new standard rules and generic risk assessment requirements are applicable to their activities. If applicable, they can apply to vary their existing permit to include the new standard rule. Once approved, operators must notify the EA of the specific R&D activities using a notification form, without needing further permit variations. Upon receiving EA agreement, operations can commence. Operators must inform the EA upon completion of the R&D activities and can reuse the process for future R&D projects.
Operators will be required to ensure that no substances are released into the environment in quantities exceeding those screened out by the EA’s H1 risk assessment tool.
Access to the consultation is available here. The consultation is open until 30 October 2024.
