Environment news update - 27 September

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

OEP looking to intervene in river restoration case

The Office for Environmental Protection (“OEP”) has applied to intervene in a significant legal case concerning the government’s statutory obligations to restore and improve the environmental condition of waterways.

Last year, Fish Legal, an environmental law charity, initiated a judicial review of DEFRA’s 2022 River Basin Management Plan (“RBMP”) for the Humber district, representing the Pickering Fishery Association. RBMPs, mandated under the Water Framework Directive (“WFD”), must be updated every six years to set legally binding, locally specific environmental objectives for water regulation.

In a landmark judgment last November, the High Court ruled in favour of the angling club, finding that the government and the Environment Agency (“EA”) had failed in their legal duties to review, update, and implement measures to restore rivers and water bodies under the WFD. The court criticized the RBMP’s measures as “entirely generic and not site or water body specific,” a ruling with implications for waterways across England. DEFRA and EA are appealing the decision.

The OEP has now filed an application with the Court of Appeal to intervene, as their intention is to highlight the importance of legal clarity which is required for promoting positive outcomes for English water bodies. The appeal could influence the content of planned measures to achieve environmental objectives nationwide.

Prompted by the alleged non-compliance of the secretary of state in the Pickering case, the OEP’s intervention follows its report on the implementation of WFD Regulations and RBMPs in England. The report, published in May 2024, highlighted failures in DEFRA and EA’s implementation, noting that the government is not on track to meet the WFD’s objectives, including achieving ‘good ecological status’ for 77% of waterways by 2027.

Fish Legal welcomed the OEP’s intervention, hoping it would clarify legal and practical requirements and push the government towards meaningful reform of water regulation

A step closer to a PFAS free environment: EU restricts PHHxA in key consumer products

In a critical step towards curbing the use of harmful “forever chemicals” the European Union (“EU”) has moved to restrict PFHxA (undecafluorohexanoic acid) a subgroup of PFAS (per and polyfluoroalkyl substances) in consumer products such as clothing, textiles and food packaging. These chemicals valued for their water, oil and stain repellent properties are extremely persistent in the environment and can accumulate in human bodies overtime, leading to long-term health risks.

This restriction presented by the European Commission and approved by EU member states, aims to phase out the use of PFHxA, its salts and related compounds across sectors where safer alternatives are available. The decision comes years after scientific evaluation and lobbying by environmental groups to address the growing threat of PFAS pollution.

Key measures of restriction

The new EU-wide restriction targets specific consumer products where PFHxA is commonly used:

• Clothing for the general public and paper and cardboard food packaging will see a ban on the use of PFHxA two years after the regulations are introduced;
• Non-clothing textiles such as carpets and upholstery will be subject to the ban of the use of PFHxA three years after the introduction of the regulations;
• Certain PPE (personal protective equipment) will be exempt from the ban to avoid compromising safety in industries that rely on these materials

Several companies such as The North Face, Black Diamond and VAUDE have already invested in PFAS free alternatives which demonstrates that there are safer viably commercial options available.

A long-awaited restriction

The European Commission has come under criticism over the delay in implementing the restriction on the use of PFHxA. It has taken over 2 years for the EU to finalise its decision following the European Chemicals Agency issuing its recommendations favour of a broad restriction. NGO’s including Chem Trust have called for much faster action and a more comprehensive ban on all PFAS chemicals waring that partial restrictions only delay the broader goal of eliminating PFAS pollution.

UK position

The UK has adopted a more cautious approach in terms of restricting the use of PFAS since its departure from the EU. Whilst the EA acknowledges the risks posed by PFAS it has yet to introduce a comprehensive restriction that aligns with the EU. The lack of more immediate action on PFAS suggests a slower regulatory response. In particular, the UK continues to allow the use of certain PFAS chemicals in sectors such as manufacturing and firefighting foam although it is understood that this is currently under review.

Future developments

The EU’s PFHxA restriction is just one part of a larger strategy to eliminate harmful chemicals from everyday products and move towards toxic-free environment. The European Parliament is now considering further restrictions including a general ban on all PFAS in food packaging and children’s toys. Additionally, the European Chemicals Agency is evaluating proposals from Germany and other EU member states to restrict all PFAS chemicals across the EU which could have far reaching implications for industries that are reliant on the use of PFAS substances.

Conclusion

The introduction of these restrictions highlights the growing tension between industrial use of chemicals for product performance and the long term environmental and health costs associated with their persistence. As more PFAS free alternatives become available the pressure on regulators and businesses alike to prioritise sustainable practices can only intensify.

The EU’s restriction on PFHxA should be seen as a positive step toward reducing the environmental impact of “forever chemicals”. With the UK currently charting its own course on chemical regulation it only remains to be seen how quickly the UK will catch up with the bolder stance on PFAS by the EU.

Permission granted for legal challenge to Rosebank oil field and Jackdaw gas field

Greenpeace UK and campaign group Uplift have been granted permission to proceed to a substantive judicial review hearing of the former energy secretary’s approval of the Rosebank oil field and Jackdaw gas field. 

One of the grounds of challenge centres on the Supreme Court’s landmark judgment from June this year in Finch. The Supreme Court had ruled in favour of campaigner Sarah Finch against oil production in Surrey as it was found the approval process should have considered the total environmental impact, including downstream emissions (scope 3 emissions). 

It is being argued the consent was based on an environmental impact assessment that excluded consideration of downstream emissions and was therefore legally flawed. The Claimant’s also argue Rosebank breaches the Conservation of Offshore Marine Habitats and Species Regulations. 

The government had already announced they would not defend legal challenges to the permissions, but Shell and Equinor have both said they will defend their right to develop the oil and gas fields. 

The substantive hearing is due to be heard by the Court of Session in Edinburgh on 12 November.

Housing secretary backs Cambridge housing scheme despite EA water supply objection

The Housing Secretary has given the green light to a 1,000-home development in Cambridgeshire, overcoming objections from the EA regarding the environmental impact of the water supply needed for the project.

Background and Appeal

Barratt David Wilson Homes, along with a group of landowners, appealed against South Cambridgeshire District Council’s delay in determining their planning application. The proposal includes homes, two schools, community and retail spaces, open areas, and landscaping on land between Huntingdon Road and Histon Road, Cambridge.

Council and EA Concerns

The council indicated it would have refused the scheme due to concerns about sustainable water supply and potential harm to groundwater bodies, including chalk aquifers. The EA objected, citing risks to ecology and water bodies under the WFD regulations. They highlighted the issue of over-abstraction and limited confidence in Cambridge Water’s (“CW”) revised Water Resource Management Plan (“WRMP”) until the Grafham Water Transfer scheme is operational around 2032.

Water Supply Solutions

The Grafham Water Transfer scheme involves constructing a new pipeline to transfer water from Grafham Water to Cambridge. The WRMP aims to provide a sustainable water supply over 25 years, with the current plan published in 2019 and a revised version under development. The EA expressed concerns about the delivery timeline of the Grafham Water project.

Inspector and Secretary’s Decision

The Housing Secretary, Angela Rayner, agreed with the planning inspector’s conclusion that while abstraction pressure contributes to ecological deterioration, there is insufficient evidence to fully understand the impact of the development. Rayner also acknowledged the proposal would add pressure on existing water bodies but believed a DEFRA-agreed WRMP would be in place before development starts.

Rayner concluded that the development would not adversely impact potable water demand or cause deterioration to water bodies, aligning with local planning policy. She also agreed that the scheme would support environmental objectives under the WFD and not harm biodiversity or Sites of Special Scientific Interest.

Planning Conditions and Legal Considerations

The inspector suggested planning conditions to delay occupation until the Grafham Transfer scheme is operational or a DEFRA-agreed WRMP is published. However, Rayner deemed these conditions unnecessary, citing potential delays in delivering new homes, schools, and infrastructure.

The inspector also noted examples of case law which support the assumption that regulatory regimes operate effectively and the consideration of water supply as a material factor in planning decisions. Recent government statements on water efficiency and addressing water scarcity in Greater Cambridge were also considered.

Costs Decision

Despite ruling in favour of the appellant, the inspector refused an application for costs against the EA. In a separate report dated 25 September 2024, the inspector acknowledged the EA’s reasonable and objective evidence regarding sustainable water supply concerns regarding the development, which therefore contributed to the inspector’s decision to refuse said application.

Net zero targets – Commitment gaps

According to Net Zero Global Stocktake, based on data from the Net Zero Tracker (“NZT”), including the Energy & Climate Intelligence Unit, Data-Driven EnviroLab, NewClimate Institute, and Oxford Net Zero, there has been an 8% increase in net-zero targets among cities and a 28% rise among regions since June 2023. However, many subnational actors, especially in lower-income regions, are still falling behind. This year, 26% of states and regions tracked by NZT have set net zero targets since December 2020, a considerable rise since December 2020, albeit still a minority. 

23% of major cities have committed to net zero, mostly in high income countries, with only 11% of cities in the ones with lower income.

The report highlights progress in the 14 nations responsible for over 75% of global emissions. In India, 14 of 20 regions with net-zero targets aim for earlier achievement dates than the national target of 2070. In the US, 18 states have set net-zero targets, with five aiming for earlier completion dates than the federal goal of 2050 and nine aiming for 80% emissions reductions by 2050. In Mexico, despite the absence of a national-level net-zero target, 11 of its 32 states have long-term climate goals, including three net-zero targets.

In the corporate sector around 23% more companies have set net-zero targets since June 2023. Nearly 60% of the 1,977 publicly-listed companies tracked by NZT now have climate targets, rising to 67% when weighted by revenue. That said, only 5% of companies, 4% of cities, and 3% of regions meet the full set of integrity criteria recommended by the UN Expert Group, the International Organisation for Standardisation, and the Race to Zero campaign. Further, nearly half of the world’s largest private companies lack emissions reductions targets. According to the report, 40% of such companies are based in China. 

Despite some progress, a new research from PwC shows that the world needs to decarbonise 20 times faster than last year to limit global warming to 1.5°C above pre-industrial levels, in line with the Paris Agreement. A record 14% increase in renewable energy capacity to 3,870 gigawatts (“GW”), fossil fuel consumption rose by 1.5% in 2023, reaching 16,007 GW is not enough resulting in the global rate of carbon intensity reduction being only 1.02% in 2023. The research says that the energy transition needs to accelerate as well as warns that growing energy demand from emerging economies and sectors could undermine gains in renewable energy adoption.

Ahead of COP29, Emma Cox, PwC’s global climate leader, said: “Without global cooperation, the possibility of keeping warming within safe limits will disappear. As COP29 approaches, we urgently need an ambitious New Collective Quantified Goal on finance to empower developing nations to meet their climate goals. Agreeing a fair and ambitious financial target is critical to support developing countries in their climate actions, enabling them to enhance their Nationally Determined Contributions (“NDCs”) in 2025 and beyond.”

This statement and the encouragement to adopt bold new commitments are supported by the first UN Global Stocktake, completed in 2023, which concluded that even if current NDCs were fully implemented, they would fall short of achieving the 1.5°C target.