Environmental news update - 15 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
Dutch courts side with Shell in appeal, but confirm that the company has a duty to reduce emissions
The Hague Court of Appeal has clarified that while Shell has a duty to reduce its emissions, the specific target of a 45% reduction by 2030 in line with the Paris agreement is not enforceable.
Background
Milieudefensie (Friends of the Earth Netherlands), Greenpeace Nederland, and other environmental groups submitted a claim in the Dutch courts against Shell, requiring Shell to reduce its CO2 emissions significantly, in line with the Paris climate accords. In May 2021, The Hague District Court sided with the claimants and ruled that Shell was legally obligated to reduce its CO2 emissions by 45% by 2030, relative to 2019 levels.
The court's ruling was groundbreaking as it applied not only to Shell's operations in the Netherlands but also to its global activities, including downstream Scope 3 emissions, which are those produced by customers using Shell's products.
This ruling was based on the argument that Shell's activities contributed significantly to climate change, which posed a threat to human rights protected under the European Convention on Human Rights, specifically Articles 2 (right to life) and 8 (right to private and family life).
The new ruling
On November 12, 2024, The Hague Court of Appeal issued a new ruling that partially overturned the 2021 decision. While the court acknowledged that Shell had a legal duty to reduce its emissions, it found that the specific target of a 45% reduction by 2030 was not enforceable. The court argued that it could not determine the exact percentage by which Shell should reduce its emissions, as it was unclear whether reducing Shell's sales would lead to a net decrease in global CO2 emissions, as Shell’s customers could simply purchase oil from another provider.
The court also noted that Shell's own plans to reduce its Scope 1 and Scope 2 emissions (direct emissions from its operations and indirect emissions from the energy it purchases) exceeded relevant targets, indicating no current breach of its obligations. However, this leaves the door open for future legal challenges if Shell fails to meet its self-imposed targets.
This latest ruling has significant implications. By not enforcing the 45% reduction target, the court has highlighted the complexities involved in holding multinational corporations accountable for their global emissions, especially when considering the potential for emissions to be shifted rather than reduced.
For Shell, the ruling provides temporary relief but also places the company under continued scrutiny, with environmental groups likely to pursue further legal action if Shell does not adhere to its emission reduction plans.
Moreover, the appeal’s ruling would support the recognition of an unwritten social standard of care based on human rights, which might encourage similar lawsuits in other jurisdictions
UK sets ambitious new greenhouse gas reduction target
Prime Minister Keir Starmer has announced a significant increase in the UK’s climate ambitions, committing to an 81% reduction in greenhouse gas emissions by 2035 compared to 1990 levels.
Progress and challenges
This new target of 81% is a significant improvement compared to the previous target of a 68% reduction by 2030. The new target aligns with recommendations from the Climate Change Committee (“CCC”), which stated that this level of reduction is essential to achieve net zero emissions by 2050.
Last year, the UK’s emissions footprint was around 53% lower than in 1990, with significant progress made by transitioning away from coal. Future reductions will require cutting emissions from buildings, heating, transport, and agriculture.
Announcement at COP29
Speaking at the COP29 conference in Baku, Azerbaijan, Prime Minister Starmer emphasized the UK’s leadership in climate action. He stated, “There’s a global race on now to be the global leader on this. I want us to be in the race and I want us to win the race.”.
Some of the key Points from Starmer’s Speech include:
- New NDC Target: Reduce all greenhouse gas emissions by at least 81% on 1990 levels by 2035.
- Global Cooperation: Urged all parties to the Paris Agreement to set ambitious targets.
- Financial Support: Announced additional funding for offshore wind developers and new financial instruments for green investments.
Supporting Green Industry
To support this ambitious target, the UK government has introduced several measures:
- Offshore Wind Funding: An extra £27 million for every GW of capacity created by offshore wind developers.
- New Financial Instrument: Launching on the London Stock Exchange to attract international green investments.
- Clean Industry Bonus: Up to £200 million to reward offshore wind farm developers for investing in local supply chains and communities.
International Leadership
Energy Security and Net-Zero Secretary Ed Miliband, leading the UK delegation at COP29, reiterated the UK’s commitment to climate leadership. He emphasized the importance of global cooperation and ambitious targets to protect future generations. He emphasised the following as key components in making this happen:
- Submission of NDCs: Encouraging other countries to submit their NDCs ahead of the February 2025 deadline.
- Increased Ambition: Aligning NDCs with the 1.5°C goal.
- Global Adaptation Goal: Progress on establishing a global goal on adaptation.
- Climate Finance: Agreement on a new quantified collective goal.
- Loss and Damage Fund: Operationalizing the fund agreed upon last year.
The UK’s new greenhouse gas reduction target sets a high bar for climate action, reinforcing its position as a global leader. With strong government support and international cooperation, the UK aims to drive the global transition to a low-carbon economy.
CoP29: Can Azerbaijan’s fossil fuel economy lead on climate ambition?
CoP29 the 29th United Nations Climate Change Conference is taking place in Baku, Azerbaijan this year from 11th to 22nd November with a critical focus on mobilising comate finance for developing countries. Hosted by a nation with a significant dependence on fossil fuels this year’s conference brings both opportunity and contention. The urgency to act on climate change is more pressing than ever as global impacts escalate, and past promises made at previous CoP’s remain unfulfilled. There are also lots of concerns that due to Azerbaijan’s ties to fossil fuel revenue that it will not push for genuine progress on phasing out carbon-based energy.
As the second of three consecutive CoP’s in the “Roadmap Mission 1.5 degree C” initiative CoP29 continues the path laid out by CoP28’s “UAE Consensus” a framework that recognised the world’s current shortfall in reaching the Paris Agreement targets. The Baku conference is expected to focus on setting a new financial target to support the developing nations in climate action, shifting from the unlet annual $100billion climate finance goal to a New Collective Quantified Goal (“NCQG”) that likely spans trillions. Developing countries argue they need substantial financial assistance that does not saddle them with debt while developed countries emphasise the need for other high-income nations like China and India to contribute.
A critical element of CoP29 will be the conference’s transparency measures. Participating nations will be submitting their first Biennial Transparency Reports outlining their progress on emission reductions and climate initiatives. This transparency is intended to foster accountability and build trust yet Azerbaijan’s restrictions on civil society participation and high levels of corruption have raised concerns about whether the conference can deliver on its transparency goals.
Another key focus of CoP29 will be finalising the frameworks for carbon markets under Article 6 which seeks to establish a regulated system of carbon credits to help nations meet climate commitments. While carbon markets have the potential to generate funds for climate mitigation and adaption, they remain controversial with concerns about standardisation, enforcement and the possibility of “greenwashing” rather than achieving genuine emissions reductions.
Loss and damage from climate impacts will also be a prominent issue at CoP29. Following the establishment of a Loss and Damage Fund at CoP28, CoP29 will be tasked with continuing to attract financial pledges to assist countries suffering from severe climate impacts. The current level of pledges however remains far short of what is needed and the debate over how to fund loss and damage will be closely linked to the broader NCQG discussions.
Adaptation too which has often taken a backseat to mitigation in climate negotiations is expected to gain greater attention as the impact of climate change intensifies. Experts estimate that $360 billion is needed annually for adaption funding a stark contrast to the roughly $18billion currently available.
CoP29 stands as a critical opportunity to address global climate finance needs and secure meaningful commitments to prevent further climate breakdown. With global temperatures still rising the worlds focus must remain on reaching the Paris Agreement goals, creating resilient financing mechanisms and taking concrete steps to phase out fossil fuels. The question is not only whether the conference can achieve these objectives but also if the host nation’s vested interests in fossil fuels will allow the ambitious progress we urgently need.
New “waste crime levy”
The Environment Agency (“EA”) has published proposals for a new waste crime levy, waste exemption charges, waste fee for intervention and updated hourly rates. They are seeking views on the fairness and impact of these charges with the aim to increase enforcement presence, reduce poor performance in the waste sector, and stop illegal activities that undercut legitimate businesses. The consultations close at midnight on 20 January 2025 and the changes should come into effect in April 2025. The consultation is available here.
Waste crime levy
This is a 10% fee on annual subsistence charges related to waste, which is said to provide an additional £3.2 million income each year and aid the agency’s enforcement activity. Furthermore, the funding will be used to improve IT systems for better analysis of digital devices, evidence storage and costs associated with seizing vehicles.
Waste exemption charges
These are the new registration and compliance charges that do not require an environmental permit but must operate within specified limits and conditions. Currently, the EA only charges for the T11 waste exemption (treatment of waste electrical and electronic equipment). The new proposal would require the operator to pay a registration charge of £56. This would be invested into support for registration of waste exemptions on a digital system, customer support services and the maintenance of the waste exemptions public register.
Waste fee for intervention
This is a new fee proposed to recover the costs of regulating waste operations where the agency suspects that an operator lacks the required authorisation. The operator would be charged for EA to respond to illegal activity a £100 in addition to the potential cost of the material.
Farmers are proposed to benefit from a reduced compliance charge for a set of 15 common on-farm waste exemptions.
Increased hourly rates
EA also proposes increased hourly rates to help fund costs of certain unplanned events (e.g. major pollution incidents, radioactive substances, water pollution incidents…). New hourly rates for specific services would be used for testing off-site nuclear emergency plans and giving advice on voluntary remediation of soil or groundwater affected by legacy pollution.
A new charge is proposed as an upfront fee of £500+VAT for up to five hours of initial advice and additional £100+VAT afterwards. This would improve the quality of advice that EA is often asked to provide in relation to remediation of land and groundwater affected by contamination.
The proposals should result in a bigger budget for the EA’s services and improve them.
Dive in and have your say on the future of bathing waters
The Government have this week opened a consultation on modernising the bathing water regulations.
There are currently 560 bathing waters in England and Wales that are designated under the Bathing Water Regulations 2013. These regulations currently control the monitoring and ranking of designated sites (as excellent, good, sufficient, or poor) and have not been updated in over a decade.
The government have said the consultation seeks to “prioritise public safety and water quality”, and seeks views from the public, community and environmental groups, farmers, businesses and local authorities on three ‘core reforms’, nine ‘technical amendments’ and two ‘wider reforms’.
Proposals include:
- Core reform 1: Ending the automatic de-designation of waters that have been ranked as ‘poor’ for at least five years in a row. The proposal suggests five years is too short for proper investment and improvement to be made and instead de-designation should follow review and recommendation by the EA and Natural Resources Wales (“NRW”).
- Core reform 2: Water quality is set to become a relevant factor when designating new sites, as current requirements are that the site must be coastal or inland water with toilets nearby and have at least 100 bathers a day in season. The government hope this would ensure money is well spent on waters that are likely to achieve the ‘sufficient’ ranking.
- Core reform 3: Removal of fixed bathing season dates, which currently mean bathing waters are only monitoring by the EA and NRW between 15 May to 30 September each year.
- Other proposed amendments include updating the definition of ‘bathers’ to include, for example, paddle boarders and surfers, as well as, ensuring bathing water sites use multiple monitoring points.
The consultation is due to end on 23 December 2024.
Jo Bateman’s claim against South West Water widened to account for impact of Manchester Ship Canal judgment
A claim against South West Water has been altered as a result of the Supreme Court’s judgment in Manchester Ship Canal Case handed down in July 2024. The claim in question was launched in January 2024 by Jo Bateman, a wild swimmer and member of campaign group “End Sewage Convoys and Pollution Exmouth”. Bateman claims that her right to swim was impacted for 10 days in December 2023 due to a burst water main causing untreated sewage to be discharged into the sea at Exmouth beach. The claim was centred around public nuisance and operational negligence.
In the Manchester Ship Canal judgment, handed down in July 2024, the Supreme Court held that United Utilities could be held accountable for the damage caused by the discharge of sewage into the canal, and that Manchester Ship Canal Company Limited was not prevented from bringing a claim under the Water Industries Act 1991 for nuisance or trespass over pollution caused by sewage discharges, despite there being no negligence or deliberate misconduct.
Leigh day, acting for Jo Bateman have set out that this judgment has “significantly expanded” the basis on which Bateman can bring her legal action. The impact of the Supreme Court’s judgment means that Bateman is now claiming for at least 300 days of lost swimming over a 5-year period, rather than the 10 days originally claimed for. This is attributable to “further loss of amenity due to public nuisance caused by South West Water’s repeated discharges of untreated sewage since August 2020”.
An agreement secured by Leigh Day between the Small Claims Court and South West Water allowed the claim to be amended to take into account the impact of the Supreme Court’s judgment in the Manchester Ship Canal Case. The amended claim was filed and served on 13 September 2024, with the updated defence due on 22 November 2024.
