Save the Date!
The Green Olive Network will be hosting its first environmental careers event at King’s College London on Thursday 27th October at 6:00pm. We’ll have speakers working in legal practice, for NGOs, and for international regulatory organisations. We’ll be sending out more information soon, including how to register for you free place!
Key judgments
In this landmark High Court decision, handed down back in July during the week when UK temperatures exceeded 40ºC for the first time on record, Mr Justice Holgate held that the Government’s net zero strategy was unlawful and must be redrawn in compliance with its obligations under the Climate Change Act 2008. These obligations require the Government to set a series of 5-year carbon budgets in order to achieve the 2050 target of reducing the UK’s greenhouse gas (‘GHG’) emissions to “net zero”, that is 100% lower than the 1990 baseline.
During the proceedings it was revealed that the Secretary of State had been advised that even of the quantifiable policies outlined in the strategy were delivered in full, they would only achieve 95% of the emissions reductions required for the sixth Carbon Budget (CB6, the carbon budget for the years 2033-2037). The minister was not told what contributions individual policies would make to the 95% assessment or what other policies might make up the 5% shortfall.
Holgate J held that this failure by the current net zero strategy to explain how individual proposals and policies would achieve 95% of the target in the CB6 or how the 5% shortfall would be achieved rendered it unlawful. Without significant additional information on the impact of the policies proposed, it was impossible for the Secretary of State to properly assess whether the net zero strategy would enable the Government to comply with its obligations under s.13(1) Climate Change Act 2008. An application for permission to appeal was refused.
Harris & Anor v Environment Agency [2022] EWHC 2264 (Admin), [2022] WLR(D) 367
This successful judicial review application has potentially far-reaching implications for environmental regulation following the UK’s departure from the EU. The Claimants, a couple living in the Norfolk Broads, challenged the approach of the Environment Agency to the granting of ‘water abstraction licences’ in areas of surrounding fenland.
The Agency had previously carried out an assessment of the environmental impacts of 240 permanent licences to abstract water for agricultural and public water supply purposes on three Sites of Special Scientific Interest (SSSIs). Last year it concluded that changes must be made to these licences in order to avoid significant damage to the protected habitats surveyed. Mr and Mrs Harris challenged the refusal by the Environment Agency to extend the scope of its assessment beyond the 240 licences and three sites considered to the whole of the Norfolk Broads Special Area of Conservation (SAC).
They submitted that this constituted a breach of an obligation under article 6(2) of the EU Habitats Directive (92/43/EEC) to avoid the deterioration of protected habitats and disturbance of protected species and that this obligation remains enforceable in domestic courts, even after the UK’s departure from the EU. The Environment Agency accepted that it had an obligation to ‘have regard’ to the Habitats Directive under regulation 9(3) of the Conservation of Habitats and Species
Regulations 2017 but submitted that they were not obligated to comply with article 6(2), since it is no longer enforceable in domestic courts.
Johnson J found in favour of the Claimants and held that, under section 4(2)(b) of the European Union (Withdrawal) Act 2018, the relevant provisions of European Law remain directly enforceable in the UK because they are of a kind recognized by a domestic court before the UK’s departure from the EU on 31 January 2020. Consequently, the Environment Agency remains bound by the obligation under article 6(2) of the Habitats Directive and must take appropriate steps to assess the impact of water abstraction licences across the SAC, not only the previously surveyed SSSIs.
The Claimant and her husband are residents of a property which had previously been a part of the Hale Pastures Farm (“the Farm”), owned by the Interested Parties in the case. In 2017, the Farm acquired a herd of 80 cows and subsequently constructed buildings to house the cows, without planning permission. The Interested Parties were granted retrospective planning permission by the Defendant council for a reception pit for dairy cow waste in the Farm. Condition 2 of this planning permission required an odour management plan to be submitted for approval to the Defendant council (“the Condition”). The Claimant challenged the discharge of the Condition by the Council.
The Court found for the Defendant and provided guidance on how conditions in planning permissions should be interpreted. Mr Justice Bird held the condition should not be “read in a way that imposes unreasonable requirements on the interested parties” [59]. Generally, he held that conditions “must be read so as to impose no more than “reasonable” obligations on the interested parties” [68]. Therefore, the Claimant’s submission that the Defendant council focused only on the actions taken by the Interested Parties and not the result of those actions, was not accepted by Mr Justice Bird, since the condition requires actions to be taken.
Key consultations
Biodiversity metric consultation (closes 27 September 2022) – The Department for Environment, Food and Rural Affairs is consulting on the Biodiversity Metric to be used for the purpose of calculating Biodiversity Net Gain (BNG). The metric will be used to calculate the baseline biodiversity value of a site and forecast its future biodiversity value.
Carbon Capture Consultation (closes 7 October 2022) and Call for Evidence (closes 17 October 2022) –The Department for Business, Energy and Industrial Strategy (BEIS) is consulting on two types of carbon capture.
First, it seeks views on the Government’s minded-to position for a business model to incentivise deployment of power bioenergy and carbon capture (BECCS) within the UK.
Second, it is calling for evidence on how the Government can best support the deployment of dispatchable gas-fired power generation projects with carbon capture, usage and storage.
Environment Agency Standard Rules Consultation 25 (closes 1 November 2022) – The Environment Agency is consulting on a number of proposed rule changes, summarised as follows:
- new standard rules, permits and generic risk assessments for the non-hazardous and inert waste sector, including the proposed charges – these will consolidate and replace existing permits
- changes to existing standard rules permits for the metal recycling sector
- changes to SR2010 No. 3 discharge to surface water
UK Mandatory Water Efficiency Labelling (closes 25 November 2022) – Defra is seeking views on plans to introduce mandatory water efficiency labelling across all UK nations. The proposed labels would apply to water using products such as taps, showers, toilets, dishwashers and washing machines. This consultation sets out the proposed approach, products covered by the label, label design/features, label display and standards to support the label. The benefits of labelling for reducing impacts on the natural environment and the environmental, social and economic costs of the proposals are presented.
Upcoming events
Restorative Justice for the Environment – Coming to a Court near you?
The Climate Law and Governance Centre at King’s College London is delighted to welcome Justice Nicola Pain, judge of the Land and Environment Court of New South Wales, Australia, as its 2022 Visiting Professor in Climate Law. Justice Pain will deliver the Centre’s Annual Public Lecture on restorative justice approaches to environmental and climate harms.
Register for the event here.
When: 21 October 2022, 17:30 to 19:00
Where: Great Hall, Strand Campus, King’s College London
Communicate is an annual environmental communication conference bringing together a diverse group of delegates to develop their skills, share best practice and debate latest issues in science communication, nature conservation and engaging people with the natural world.
Communicate 2022 will be held online on November 15-16 2022, with an additional option to attend a day of in-person workshops and masterclasses in London (Day 1, November 15) and Bristol (Day 2, November 16). All online content will be live and in real-time to maximise engagement and opportunities for discussion – no pre-recorded material!
Passes for the two-day online conference cost £25 +VAT.
To find out more and book tickets click here.
