Environmental news update - 4 October

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

Government proposes “Brownfield Passport” to incentivize development

The Ministry of Housing, Communities & Local Government has started a consultation on the recently released “Planning Reform Working Paper: Brownfield Passport”. 

This initiative aims to streamline the planning process, making it easier to develop previously used land, thereby supporting urban growth and addressing housing needs. In essence, the government wants to consider whether they could “introduce a ‘brownfield passport’ to ensure that the default answer to brownfield development is ‘yes’”.

In the working paper, the government emphasizes the importance of utilizing vacant and under-used brownfield sites to support urban growth. This includes redeveloping derelict sites and intensifying the use of existing urban land. The focus is on creating sustainable urban centres where homes are close to jobs and well-connected by infrastructure. 

The main proposals of this working paper are:

1. Principle of development: This concept involves setting clear parameters for development on brownfield sites in order to create a brownfield passport, making approval the default outcome if criteria are met. According to the paper, this aims to reduce uncertainty and risk for developers. Although, it clarifies that this default support needs to be considered alongside other aspects of national as well as local policy.
2. Scale of development: The working paper considers that urban areas in England have low population densities compared to European cities, limiting economic potential and local services. Increasing density, while respecting local character, can create sustainable, productive places. National policies could set minimum development expectations, such as four-storey buildings on main streets, to encourage suitable intensification and redevelopment. It also explores whether alternatively it would be more convenient if the minimum development expectations are set out local development plans.
3. Form of development: Urban areas have diverse development opportunities, from regenerating brownfield sites to redeveloping existing plots. The use of design guides and codes is proposed to provide clarity on acceptable development types.
4. Area-wide permissions: The paper explores the use of Local Development Orders to grant upfront planning permission for specified types of development, reducing the need for individual applications and speeding up the development process.

The working paper invites stakeholders to provide their views on the proposed brownfield passport and other policy changes. The full text of the working paper is available here.

NESO: The new public body powering Britain’s clean energy future

The UK has officially launched its new publicly owned National Energy System Operator (“NESO”) on 1^st October. This organisation has been formed after ratification of the Energy Act and the government’s acquisition of the National Grid’s system operator functions for £630 million earlier this year.

NESO’s responsibilities include overseeing the planning and design of the UK’s electricity and gas networks, covering generation, distribution, and transmission. One of the critical gaps NESO addresses is the absence of a central coordinating body for energy transition strategies a key necessity as the UK adopts new techniques to meet energy demands sustainably.

NESO is tasked with making strategic policy recommendations and supporting long-term goals such as balancing cost, environmental impact and energy security known as the “energy trilemma”. An early action for NESO is to deliver a report to the Department of Energy Security and Net Zero, laying out options for achieving a clean power grid by 2030.

The previous Conservative government targeted a transition away from gas-powered electricity without carbon capture by 2035, focusing on nuclear, renewable energy and energy storage. However, the new Labour led administration has accelerated this deadline to 2030, which NESO believes is attainable but will require swift strategic decisions.

Chris Stark a former leader of the Climate Change Committee and the Carbon Trust will head a new “mission control” centre for clean energy transition. Stark has acknowledged that meeting the 2030 target is challenging but believes setting ambitious goals is crucial for rapid progress.

NESO Chair Paul Golby has emphasised collaboration with government, industry, and society as essential to achieving its goals

A vital component of reaching the 2030 clean energy target is enhancing flexibility with the energy system. This flexibility will allow for better placing of demand and supply especially as renewable energy which can be intermittent, becomes a larger part of the mix. Companies like Piclo have begun trading flexible energy capacity with National Grid, showcasing the importance of innovative solutions to grid management and energy sustainability. 

NESO’s success will depend on its ability to make difficult but necessary decisions transparently and collaboratively engaging with government bodies regulator industry leaders and the public. It will also need to address challenges such as unlocking grid flexibly expediting renewable energy deployment and modernising transmission infrastructure. As the UK accelerates its clean energy ambitions NESO will be instrumental in aligning the nation’s energy strategy with environmental and economic goals driving forward the broader agenda of decarbonatization and sustainability

Harmonising Global Practices: New guidance published for climate transition plans

The Assessing Transition Plans Collective (“ATPC”) had published a new guidance framework for assessing the credibility of businesses climate transition plans. 

Made up of roughly 90 experts, the ATPC is co-chaired by the World Benchmarking Alliance and Columbia Centre on Sustainable Investment, and aims to “pave the way for ambitious future standards, practices and regulations that assess the robustness of companies transition plans”. 

The framework acknowledges that a credible transition plan can play a key role in international decarbonisation, and proposes harmonised global assessment practices in an aim to reduce the confusion that comes from an ever-increasing number of assessment methods and tools available worldwide. It defines a credible transition plan as “one aligned with international decarbonisation goals, consistent with relevant sectoral and local transition plans where the company operates… and feasible within its proposed timeline”. 

To assess credibility, the framework proposes following the following four steps:

1. Check the compliance with selected disclosure framework
2. Check potential red flags (43 potential red flags are listed) 
3. Check the granularity of the data
4. Check the overall credibility with assessment criteria (50 assessment criteria are suggested)  

Perrine Toledano, Director of Research and Policy, Columbia Centre on Sustainable Investment and ATP-Col member, said: 

“A transition plan is not a disclosure exercise. This is a business plan exercise. This guide will enable both assessors and business transition planners to understand how to build it rigorously and credibly, based on the past decade of guidance development.”

Pesticide residues in UK food supply: 2023 PRiF report highlights safety and areas of concern

The Pesticide Residues in Food (“PRiF”) committee, appointed by DEFRA, is responsible for providing advice to HSE on the strategy and scope of the UK annual pesticide residues monitoring scheme, detailed insight and advice on specific issues related to sampling plans or test results, and clear communication of the results.

In 2023, PRiF conducted a comprehensive analysis of food and drink samples from England, Scotland, and Wales. This testing involved 2,574 samples, searching for up to 418 different pesticide residues. The findings revealed:

• 2.14% of samples (55 samples) contained pesticide residues above the Maximum Residue Level (“MRL”), the highest level of pesticide residue legally tolerated in or on food and feed.
• 49.96% of samples contained pesticide residues at or below the MRL, while 47.9% had no detectable residues, indicating that the majority of the food supply is within safe limits for pesticide residues.

When compared to previous years, the number of samples exceeding the MRL has decreased. In 2022, 60 samples were found to have pesticide residues above the MRL, and in 2021, this number was 90. Over 3,300 samples were tested in both 2021 and 2022. The 2023 report included fewer samples due to delays in receiving results from Northern Ireland.

The PRiF’s report underscores that pesticide residues in the UK food supply are “generally well-controlled.” However, the committee highlighted some concerns, noting “periodic findings of undesirable residues” in imported dried beans. Low-level genotoxic residues were detected in samples of dried black eye beans, raising concerns about the safety of these imports. The full details of their report can be found here.

The Health and Safety Executive (“HSE”) plays a crucial role in assessing the risks associated with pesticide residues. Their role involves:

• Conducting a screening risk assessment of all pesticide residues found in the food monitoring programme.
• Evaluating consumer risks for food products where the MRL was exceeded, along with the Food Standards Agency, and providing detailed assessments as necessary.

The HSE is expected to publish a summary of the 2023 results in its upcoming annual report, which will offer further insights into the safety and regulation of pesticide residues in the UK food supply.

While the presence of pesticide residues in some food samples remains a concern, the overall findings from the PRiF report indicate that the UK food supply is largely safe and well-regulated. The decrease in samples exceeding the MRL over the past three years is a positive trend, reflecting the effectiveness of current regulations and monitoring efforts. However, the periodic findings of undesirable residues in certain imported foods highlight the need for continued vigilance and stringent testing to ensure food safety. The upcoming HSE report will be crucial in providing a more detailed understanding of these issues and guiding future actions to maintain and improve food safety standards.

Challenge against gas-fired power plant consent 

In February this year, the Secretary of State for Department for Energy Security and Net Zero granted development consent for the planned Net Zero Teesside (“NZT”) Power project, one of the world’s first commercial scale gas-fired power stations with carbon capture. This was a joint application between NZT Power and the Northern Endurance Partnership (“NEP”) and it includes onshore CO2 gathering and transport infrastructure operated by the NEP. The project has the potential to deliver low-carbon flexible power equivalent to the electricity requirements of around 1.3 million UK homes and can help secure Teesside’s position at the heart of the country’s energy transition. This is seen as a step forward for the decarbonisation of industrial regions in the North of England which is essential to bring us closer to our goal of supporting the UK government’s commitment to fully decarbonize the power system in the UK by 2035. 

This decision is now being challenged at the Court of Appeal by a retired computer scientist and climate activist Dr Andrew Boswell.

Boswell also disagreed with the secretary of state’s approach and the Climate Change Committee in its support for this project. Boswell had argued that the decision letter for the plant did not give legally adequate reasons that the development “will help deliver the government's net zero commitment” and that there was a “large double counting error” in the assessment of greenhouse gas emissions, where the carbon captured from the project was subtracted twice. This claim was refuted by NZT and Net Zero North Sea Storage. He also argued that the Secretary of State failed to reach her own view on the need for the development despite being required to do so and failed to give legally adequate reasons for attaching substantial weight to the need for the development. Boswell commented that the developers failed to come clean on the methane emissions in the gas supply chain, which is a powerful and deadly greenhouse gas and is also driving global heating. He said that in these times of climate emergency every unit of greenhouse gas emissions matters and should be properly assessed. 

The High Court judge Mrs Justice Lieven sided with the developers, stating that Boswell was “wilfully choosing to ignore what is said in national policy about the net zero trajectory and the need for carbon capture and storage/carbon capture usage and storage”.

According to the law firm Leigh Day representing Boswell, the appeal was allowed. They highlighted the important issues the appeal raises in relation to lawfulness of plans for carbon capture and storage as well as in relation to environmental impact assessment regulations and whether they were properly followed when the project was approved.