Environmental news update - 1 November

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

Consultation opens on new EIA guidance following Finch

Following the Supreme Court’s landmark decision in Finch, the Government is consulting on updated guidance on environmental impact assessments for offshore oil and gas projects. 

Finch challenged the local County Council’s decision to grant permission for oil production in Surrey. Ultimately, the Supreme Court found that the end-use atmospheric emissions from burning the extracted fuel (scope 3 emissions) needed to be included in the Environmental Impact Assessment for the application and so the permission was unlawful. 

The government have said the updated guidance for offshore oil and gas projects will “provide greater certainty and stability for the industry” by setting out the elements that must be considered when assessing emissions from the burning of oil and gas produced. 

Energy Minister Michael Shanks has said the government are “acting quickly to provide greater stability for our offshore industries, by consulting on new environmental guidance that complies with our legal obligations. We will continue to work closely with industry to ensure a prosperous future for the North Sea and our offshore workers.”

The main issues discussed in this consultation are:

1. Criteria for determining the baseline scenario for assessing scope 3 emissions.
2. What scope 3 emissions should be included as part of the assessment.
3. Whether the advice given in the draft supplementary EIA guidance for evaluating the likely significant effects of scope 3 emissions on climate needs to be amended. 
4. Whether the existing guidance on cumulative effects helps to convey the expectation on what other relevant projects should form part of an assessment.
5. Whether the advice given in the draft supplementary EIA guidance for determining mitigation measures is clear.
6. Whether the expectations on environmental protection objectives are clear.

The consultation on draft supplementary Environmental Impact Assessment guidance in light of Finch is now open and closes on 8 January 2025. 

The government have also announced they will separately be consulting before the end of the year on the implementation of their commitment not to issue new oil and gas licences. 

Government to establish producer-led organisation for managing the Extended Producer Responsibility Scheme

The government has announced the creation of a new organisation, composed of packaging producers, to oversee the Extended Producer Responsibility (“EPR”) scheme. This initiative was detailed in an open letter from environment ministers of the four UK nations, addressed to the EPR Scheme Administrator Interim Steering Group, which includes government officials, producers, trade groups, and NGOs. The ministers confirmed the establishment of a Producer Responsible Organisation (“PRO”) to manage the EPR scheme.

Set to be implemented next year, the EPR scheme will require companies using packaging to cover the costs of waste processing, shifting the financial burden from councils and taxpayers to the companies themselves. Companies will therefore pay fees based on the amount of packaging they use.

The letter highlights that a “co-design process” has been initiated to form the PRO, involving members of the Food and Drink Federation (“FDF”), local authorities, and other stakeholders. This collaborative approach aims to ensure broad involvement across the value chain and robust governance for the scheme administrator.

It is understood that while the PRO will handle many of the scheme’s daily operations, the scheme administrator will maintain overarching governance to ensure proper functioning. 

At this early stage, discussions are ongoing to define the specific functions to be delegated to the PRO. The PRO will determine the recyclability of materials and collaborate with the government to assess the efficiency of local authority collections. The goal is to improve recycling rates by incentivizing the use of recyclable packaging, fostering innovation to enhance recyclability, and reducing unnecessary packaging.

The Food and Drink Federation noted that successful EPR schemes are typically producer-led. Jim Bligh, the federation’s director of corporate affairs and packaging, stressed the importance of delivering value for money and improving recycling rates, given the projected £1.7 billion cost of EPR in 2025. He highlighted that 

“A producer-led organisation can harness the expertise of manufacturers, and the waste value chain, to create a true circular economy for packaging recycling. This includes boosting investment in infrastructure, supporting councils to run effective and efficient services, and working with producers in all sectors to use more recycled content and cut down their use of packaging.”

Friends of the Earth’s challenge of the legality of Climate Adaptation Plan is dismissed 

As we previously reported here, the government defended a claim for judicial review in relation to its climate adaptation plan published on 17 July 2023. The case was “a first of its kind” and was heard on 23 and 24 July this year.  

Friends of the Earth and two co-claimants were arguing that the UK Government is violating human rights laws by not adequately protecting people, property, and infrastructure from the impacts of climate change. They claimed that the National Adaptation Plan 3 (“NAP3”) is unlawful under the Climate Change Act 2008 because it lacks proper “adaptation objectives” and fails to assess and publish the risks to the delivery of its plans. Furthermore, they claimed that it breaches the Human Rights Act 1998 by interfering with the co-claimants’ rights and fails to assess its unequal impacts on protected groups under the Equality Act 2010. The four grounds were as follows:

1. Objectives: did the Government misdirect themselves in law in respect of what was required of him by way of "objectives" under section 58(1)
2. Risk of delivery: was the Government required to consider the risk of delivery of the policies and proposals set out in NAP3?
3. Public sector equality duty: 

Issue 1: Did the Government comply with their obligations under the public sector equality duty under section 149 Equality Act 2010 in relation to the publication of NAP3?

Issue 2: Should the Court refuse relief pursuant to section 31(2A) and/or (3C) of the Senior Courts Act 1981 ("SCA 1981")?

1. Human Rights Act 1998:

Issue 1: Is it open to the defendant to contend that the second and third Claimants are not "victims" for the purposes of s. 7 HRA?

Issue 2: Is the second claimant permitted to rely upon the Second Statement of Kevin Jordan dated 10 June 2024 and, if so, should the second claimant's assertion of the fact that "Kevin Jordan's home was recently demolished due to the treat of coastal erosion" be excluded from consideration?

Issue 3: Are the second and third claimants "victims" for the purposes of s. 7 HRA?

Issue 4: Are the rights relied upon by the claimants (Article 2, 8, 14 and A1P1 ECHR) applicable/engaged?

Issue 5: Did the defendant breach any of those Convention rights in adopting NAP3?

On 25 October 2024 judge Mr Justice Chamberlain dismissed the case on all grounds.

Friends of the Earth and their representation commented with disappointment, stating that they will study the detail of this judgment and decide whether they wish to proceed with an appeal. They have also highlighted that the judge acknowledged that ministers had breached equality law by not considering the unequal impacts of NAP3. This was only corrected after the legal challenge. 

The UK Government’s official advisory body Climate Change Committee warned in 2021 of the increasing climate risks as 60% of the assessed risks required highest level of urgency. Earlier this year they have again urged the ministers to update NAP3 as it falls “far short of what is needed” and risks leaving the UK exposed to climate impacts that have the potential to “fundamentally compromise aspects of our society”. They still insist that the UK is “not ready at all” for climate risks to agriculture, power systems and public health. They estimate at least half a billion pounds, and up to £1bn, will need to be funnelled into adaptation in the UK each year during the coming ten years and have called the issue of climate resilience “chronically underfunded and overlooked”.

DEFRA while welcoming the court’s judgement has also commented that they are “committed to further strengthening this government's approach to climate resilience and will bring forward plans in due course.”

Air pollution case on Ella Adoo-Kissi-Debrah’s death is settled

As we previously reported here, Mrs Rosamund Adoo-Kissi-Debrah, started a claim against DEFRA, the Department for Transport, and the Department of Health and Social Care over alleged breaches of the Human Rights Act.  She claimed for compensation over her 9-year-old daughter’s illness and premature death. Her daughter, Ella, passed away after a fatal asthma attack in 2013. She lived 35m from the South Circular Road in Lewisham (South-East London) and was the first person to have “air pollution” listed on her death certificate after the Southwark Coroner's Court found that it made a material contribution to her death. 

Mrs Adoo-Kissi-Debrah, the mother of Ella Adoo-Kissi-Debrah, has now reached a legal settlement with the UK government after a prolonged battle over her daughter’s death. 

The settlement includes an undisclosed compensation and a formal apology in a statement from ministers of all three departments involved in the matter.