Environmental news update - 29 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

The Road to CoP30: Lessons from CoP29’s Wins and Weaknesses

As CoP29 has now concluded this will be our final summing up of the key outcomes from the summit. While some progress was made the conference once again highlighted the challenges of achieving consensus on critical climate issues. Here are the major takeaways from this year’s negotiations:

Climate finance a step forward but far from enough

A new funding target to deliver $300 billion annually by 2030 to help developing countries adapt to climate change and transition to cleaner energy. This represents a shift as the emerging economies like China will now contribute to the fund. However, $300 billion has been widely seen as insufficient given that experts estimate a need for $1trillion annually to meet global goals. Climate vulnerable nations expressed dissatisfaction calling it inadequate to address the escalating climate crisis.

Carbon markets: A decade long debate resolved

After years of negotiations, rules for global carbon markets under Article 6 of the Paris Agreement were finalised. It includes frameworks for countries to trade carbon credits and mechanisms that ensure environmental and human rights protections. However, the success of these markets will depend on how rigorously they are implemented by nations.

A Stalemate on fossil fuels

Attempts to strengthen commitments to phase out fossil fuels faced strong resistance from oil producing nations such as Saudi Arabia and a bloc of emerging economies, including China and India. A push to triple renewable energy capacity by 2030 was supported but without binding commitments leaving many disappointed that the talks did not more aggressively address the root causes of climate change.

Limited progress on adaption and just transition 

Discussions on adaption and the “just transition” for workers affected by the shift to greener energy remained contentious. Funding gaps and disagreements over global versus local responsibilities hindered significant breakthroughs. While the “Baku Adaption Road Map” was introduced it lacked the necessary financial commitments to make it impactful.

Gains in transparency and accountability 

There was progress made in climate reporting under the Enhanced Transparency Framework (“ETF”). Thirteen countries submitted Biennial Transparency Reports setting an example for others to follow. Improved reporting frameworks will enhance accountability and help track progress toward Nationally Determined Contributions.

Deep political divisions persist

CoP29 highlighted the ongoing divisions between developed and developing nations. Whilst developed countries pushed for emerging economies such as China to contribute more to climate finance, developing nations highlighted historical injustices and unmet funding promises. These tensions hindered progress on several key agenda items and reflect the broader challenges of climate diplomacy.

The road to CoP30

CoP30 to take place in Belem, Brazil will focus on addressing the unresolved issues, including fossil fuels phaseouts, adaptions and scaling up climate finance. With the Amazon rainforest as the backdrop for CoP30 it will be a critical moment for advancing climate action in the face of mounting global challenges.

Whilst some progress was made at CoP29 the world still has a long way to go. As UN Secretary-General Antonio Guterres said, “Finance is not a handout – its an investment against the devastation that unchecked climate chaos will inflict on us all”.

EA permanently closes Walleys Quarry

It was announced on 28 November that the Environment Agency has issued a Closure Notice to Walleys Quarry Ltd, which will kick off the process of permanently closing its landfill site in Newcastle-under-Lyme.

The closure notice is the latest in a series of regulatory actions taken by the Environment Agency to address landfill gas emissions from the site, which have included Enforcement Notices and a Suspension Notice, alongside over 180 site inspections since 2021. 

The impacts of the closure notice will be felt immediately, with the site not permitted to accept any new waste from Friday 29 November. Walleys Quarry Ltd will also be required to permanently cap the remainder of the site and to install further landfill gas management infrastructure.

Walleys Quarry Ltd does have a right to appeal against the closure notice. Speaking to ENDS Report, the operator has indicated that they do intend to exercise this right to “challenge this decision using all available options” and that they “completely reject the accusations made by the Environment Agency relating to poor management of the landfill site.” Any such appeal must be made within two months of the Closure Notice being issued and will be heard by an Inspector appointed by the Planning Inspectorate. 

On the closure, Ian Jones, West Midlands Area Director at the Environment Agency has said that “our aim has always been to bring the operator into compliance with its permit and the decision to issue a Closure Notice is not one we take lightly. We have given Walleys Quarry Ltd sufficient time to put in place effective measures to manage emissions and it has failed to do so.”

Draft regulations on Deposit Return Scheme laid in parliament

The UK government laid draft regulations in parliament this week as part of its commitment to launch a Deposit Return Scheme across England, Scotland and Northern Ireland by October 2027. Emma Bourne, director of resources and waste at DEFRA has flagged this as a “major step forward in our work across England, Scotland and Northern Ireland to boost recycling, tackle litter and deliver a circular economy”.

The draft regulations (“The Deposit Scheme for Drinks Containers (England and Northern Ireland) Regulations 2024”) include obligations on producers and suppliers of container drinks in the United Kingdom, and also set out provisions around the appointment and function of Deposit Management Organisations – who will be responsible for coordinating and operating the Scheme across England, Scotland and Northern Ireland respectively. 

The rollout of the Deposit Return Scheme has faced a number of delays and setbacks since it was first announced in the 2018 Resources and Waste Strategy. Most recently came the Welsh government's decision announced last week to withdraw from the UK-wide Deposit Return Scheme, citing issues relating to devolution under the United Kingdom Internal Market Act 2020.

Fairwell Coal Authority, hello Mining Remediation Authority

The Coal Authority, which has been a public body for 30 years, has undergone a rebrand to reflect the broad scope of their work and their environmental remediation focus. So, welcome to the Mining Remediation Authority (“MRA”)! 

The statutory responsibilities of the body are not set to change as they will continue manage the country’s coal assets under the Coal Industries Act 1994. 

However, in September this year, the UK’s last coal-fired power station ended operations and so the new name is said to better reflect their increasing work on improving the environment and the lives of people in mining areas. This includes their work on metal mine pollution prevention, tip safety, mine water treatment, and environmental remediation. 

In 2023, the MRA also became a category two response organisation (other examples of category two responders are water companies, National Highways and Transport for London). In line with this change, the MRA have a 24/7 “hazard line” on which members of the public can report concerns, for example, about subsidence in coal mining areas. 

Wizz Air advertisement banned for greenwashing concerns

AI monitoring system used by The Advertising Standards Authority (“ASA”) picked up a Google advertisement by Wizz Air claiming they are one of the “greenest choices” in air travel. The advertisement was subsequently banned due to the airline’s inability to support this statement. 

ASA ensures that the advertisements are legal, decent, honest and truthful, and do not mislead, harm, or offend customers. They do so by enforcing the rules that govern non-broadcast advertising in the UK, which are written by the Committee of Advertising Practice (“CAP”). They have implemented an Active Ad Monitoring System that uses AI to identify potentially non-compliant ads. While their decisions are not legally binding, they hold significant persuasive value and are subject to independent review. 

In this case, ASA found that the ad gave a misleading impression of the airline's environmental impact by not clearly explaining the basis of the claim or providing sufficient information for consumers to verify it.

Wizz Air had based their claim on the type of aircraft it used and the carbon emissions per passenger, but this information was not included in the ad. They justified their claim by the following:

• They highlighted their environmental credentials, citing their low carbon emissions per passenger, independently verified at 52 grams of CO2 per revenue passenger kilometre – claimed to be the lowest in Europe. 
• They referenced their ongoing transition to Airbus A321neo aircraft, which offer improved fuel efficiency and reduced noise. 
• They mentioned their investments in sustainable aviation fuel (“SAF”). They aim to use 10% SAF by 2030, exceeding EU targets, and is involved in industry groups advancing zero-emission technologies.

Nevertheless, the ad was found to be misleading under the CAP Code rules. Specifically, following Section 3, the ad was considered:

• Materially misleading for not providing sufficient information;
• To have omitted material information by failing to include important details that; customers need to make informed decisions; and
• To have failed to provide documentary evidence for the claim.

ASA ruled that the ad must not appear again in its current form and advised Wizz Air to ensure future environmental claims are clear and verifiable. Such claims must be specific, supported by data and accompanied by clear information about the methodology used to reach the conclusion. 

The case is a reminder of the importance of transparency in advertising and details, especially when it comes to environmental claims. 

ASA highlighted that they do encourage businesses to promote their green initiatives, but the companies must make it a priority to give the customers all relevant information to ensure they are able to make informed decisions. 

DEFRA interim guidance introduced to encourage planners to consider PM_2.5 air quality in their plan

In a significant move to improve air quality, the UK government introduced new regulations under the 2021 Environment Act. These regulations set ambitious targets for fine particulate matter (“PM_2.5”), aiming to reduce its harmful effects on public health and the environment. 

The regulations include two key targets for PM_2.5:

1. Maximum Annual Mean Concentration: A target of 10µg/m³ to be achieved by 2040.
2. Population Exposure Reduction: A 35% reduction in population exposure compared to 2018 levels, also to be achieved by 2040.

Particulate matter, especially PM_2.5, consists of tiny particles less than 2.5 micrometres in diameter. These particles can penetrate deep into the lungs and enter the bloodstream, causing serious health issues such as heart disease, respiratory problems, and even brain damage.

Interim Guidance from Defra

The Department of Environment, Food and Rural Affairs (“DEFRA”) is currently developing detailed planning guidance for developers and local planning authorities (“LPAs”). In the meantime, interim guidance has been issued. This guidance advises applicants “…to provide evidence in their planning applications that they have identified key sources of air pollution within their schemes and taken appropriate action to minimise emissions of PM_2.5 and its precursors as far as is reasonably practicable”. 

The document sets out two key questions, designed to be used as prompts in the interim process

• How has exposure to PM_2.5 been considered when selecting the development site?
• What actions and/or mitigations have been considered to reduce PM_2.5 exposure for development users and nearby receptors (houses, hospitals, schools etc.) and to reduce emissions of PM_2.5 and its precursors?

Key Considerations for Developers

When considering the first of these questions, developers are encouraged to consider the following when selecting development sites:

• Proximity to Populations: Assess the impact on nearby populations, especially vulnerable groups such as schools and hospitals.
• Proximity to Pollution Sources: Evaluate the impact of existing pollution sources on the development.
• Exposure and Emissions: Consider both construction and operational phases of the development.

Mitigation Measures

When considering the second of these questions, applicants are advised to implement measures to reduce PM_2.5 exposure and emissions and explain why each measure was implemented. These actions can include (but not limited to):

• Site layout and development design: Optimize the layout and design to minimize pollution.
• Technology: Use advanced technologies to reduce emissions during construction and operation.

The guidance goes on to say that LPAs are “encouraged to consider the cumulative impact of development both in developing their local plan and when making decisions on a case-by-case basis”

The government's chief planner Joanna Averley also drew attention to the new guidance in her latest newsletter for chief planners, in which she stated 

“Defra is developing guidance for developers and planning authorities on how to consider the air quality targets set under the Environment Act 2021 for Fine Particulate Matter (PM2.5) in planning decisions. The new PM2.5 targets are designed to reduce population exposure to this pollutant. This aims to improve upon the existing approach, which assesses whether a new development is likely to increase the risk of exceeding a legal limit or threshold in its location."

She also went on to say that full guidance is expected from DEFRA on this new approach in 2025.

UK Government launches ‘Tree Planting Taskforce

As part of the Labour government’s manifesto, a pledge was made to “accelerate tree planting and woodland creation, establishing a Tree Planting Taskforce to grow millions of trees across our four nations.”

To this end, the Tree Planting Taskforce was launched this week, and is designed to “strengthen collaborative work across the UK, identifying opportunities to work together, to improve tree planting and ensure the long-term survival of woodland, safeguarding their benefits for future generations”.

Meeting for the first time on Thursday this week, the Taskforce is comprised of four ministerial chairs (the forestry ministers from England, Scotland, Wales and Northern Ireland respectively) along with representatives from arm’s length bodies and delivery partners. 

A key focus of the meeting was how to drive forward the UK’s tree planting to meet its collective net zero targets. This is against the backdrop of all four nations having failed to meet interim annual targets for tree planting over the last four years. 

Under the Environment Act, the UK government has a legal target to achieve 16.5% tree cover by 2050. In the same press release announcing the Taskforce, the government also highlighted its “recently launched rapid review of the Environmental Improvement Plan” in order to ensure that legal targets are met.

A commitment to tree planting and peat restoration was also included in the government’s Autumn Budget, with £400 million allocated towards these causes between 2024 and 2026.