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Environmental news round up - 14 July 2023

‘Reckless’ Pollution Incident Results in a £3.3 million Fine for Thames Water

Thames Water was fined £3.3 million fine last week (4th July) at Lewes Crown Court for pumping what has been described as ‘millions’ litres of raw sewage into the Gatwick Stream and River Mole between Crawley in West Sussex and Horley killing an estimated 1400 fish. The incident occurred on 11th October 2017 following the unexpected activation of a storm pump (despite there being no rainfall) which went unnoticed by staff. The pump then poured raw sewage into the river and no alarm was in place to alert staff. When an alarm was eventually heard the court was told that the lead technician was not contactable due to mobile phone issues. According to the Environment Agency nearly 5km of river containing protected European eel and brown trout was in ‘grave danger’. It also said that mitigation measures were available but missed. The company pleaded guilty to 4 charges.

What was particularly interesting about this case were the remarks made by Judge Christine Laing KC when sentencing Thames Water. As Thames Water had continued to deny to the Environment Agency during its investigation that there had been a leak from its facility the Judge said this was at complete odds with the evidence and that “this was either deliberate dishonesty or breath-taking blindness.” She also commented that documents filed by Thames Water with the Environment Agency were “utterly misleading” including the omitting of water readings and the submission of a report to the Environment Agency denying responsibility for the incident.

According to a spokesperson from DEFRA the fine of £3.4 million will on this occasion be paid into the Treasury Fund but in the future water company environmental fines and penalties would be reinvested into the government’s water restoration fund. The funding for the Environment Agency (recently reported) is still below levels of funding in 2011.

First Highly Protected Marine Areas come into force

The government’s designation of the sites Allonby Bay (off Cumbria), North East of Farnes Deep (off Northumberland) and Dolphin Head (off West Sussex) have now come into effect as the first Highly Protected Marine Areas in the country. This is part of an attempt by the government to provide protection to threatened sea areas and facilitate their recovery. Other potential locations were considered but in the end avoided due to potential adverse impacts (such as the destruction of the fishing industry on Holy Island, Northumberland).

According to The Wildlife Trusts, the designations will ‘protect everything within their boundaries following a ‘whole-site approach’. This means that the ecosystem, habitats, wildlife (including animals which live in the site and mobile animals which visit or pass through), abiotic elements, and their supporting ecosystem functions and processes are all protected.’ This means that protection includes ‘the seabed, water column and the sea surface’.

It is hoped by the government that the protections will allow for species to recover, develop and thrive in the designated areas, thereby increasing biodiversity. The Wildlife Trusts hopes for further designations as it recognises that, although three designations is a good first step, it will not be sufficient ‘to save our seas from the crisis they’re in’.

£2,000 fine and suspended sentence issued for illegal storage of waste

A man illegally storing corroding drums containing chemicals on a site he operated has received a suspended sentence of 17 weeks as well as being ordered to pay £2,000 in compensation to the Environment Agency and clear the site within 12 months, as reported on Prior to this, he had failed to remove the waste following a notice from Environment Agency. The Environment Agency has cleared some of the waste at its own cost of £120,000. The man has also been charged with operated a regulated facility without holding the required environmental permit, and storing waste in a manner likely to harm health and cause pollution.

This case is another example of the potential consequences of causing environmental harms, further to the fine awarded for culling a badger sett which we reported on last week. It demonstrates that the Environment Agency is willing to take further action when its initial action is not complied with, and serves as a reminder that criminal sanctions may follow non-compliance with environmental regulations.

Are fewer than 20% FTSE100 companies on track to net zero?

That’s what AI analysis has found, according to An AI analysis model measured net zero commitments (including net zero, emissions and carbon neutral targets) against emissions data. According to edie, it found that a number of the companies do not actually have data to track their targets on net zero, and that the targets of a number of these companies are not sufficiently grounded in science. It suggests the majority of the companies are not on track to at least one of their targets.

If this is accurate, it certainly raises a wide range of questions including whether companies are aware that they are not on track to meet their targets, why they do not have data which is able to accurately track those targets, and how the way targets are laid out could be redesigned to better reflect environmental requirements and enable tracking and achievement of goals.

It’s not clear how exactly the AI analysis reached these conclusions, but it prompts an interesting thought that AI might potentially become a useful tool in the future to aid in the creation of net zero targets, as well as outlining how those targets can realistically be achieved against a company’s operations, in a way that might be too complex and/or time consuming for human counterparts to imagine or model. Whether AI begins to be used widely by companies for such purposes remains to be seen, but it’s certain that it will be important to ensure that any AI modelling and research used produces accurate data and information upon which companies can rely.

Corporate Greenwashing

Last week the team held a webinar on corporate greenwashing. It covered everything from commercial issues, climate change litigation through to how such claims might be dealt with in the real estate sector.

To watch the webinar please click here.

Decision on Sizewell C nuclear plant will be appealed

On July 2022, planning permission was granted for the Sizewell C nuclear plant located in Suffolk, England. As water is indispensable for the operation of nuclear plants, the availability of water is a critical point.

The campaign group Together Against Sizewell C (“TASC”) challenged this decision via judicial review proceedings. TASC’s main ground was that the Secretary of State had failed to assess the environmental impacts of the development as the developer was unable to identify a permanent water supply for the project.

The development proposed constructing a bespoke temporary desalination plant that would provide water during the construction phase of the project. A permanent water supply for the operation stage was not identified. Instead, the developer relied upon the duty of Northumbrian Water Limited ("NWL") under the Water Industry Act 1991 to identify new water resources to meet the demand forecast for its region via the preparation and publication of a Water Resources Management Plan pursuant to s.37A for Essex and Suffolk over the period 2025 to 2050 (referred to as “WRMP24”). When granting permission, the former secretary of state Kwasi Kwarteng had considered that Sizewell C and the WRMP24 were separate projects subject to distinct determination processes.

The High Court dismissed the claim as Mr Justice Holgate ruled that the provision by NWL of additional water sources for Suffolk is not part of the Sizewell C project. He considered that the supply of utilities such as water is common to most developments and utility companies should make additional provisions to supply existing and new customers, but that does not mean that the supply is part of each development as the opposite interpretation would lead to “sclerosis in the planning system”.

TASC has recently made a statement announcing its intention to appealing this ruling. In this announcement, TASC provided that Mr Justice Holgate was wrong in the following:

  • To find the permanent desalination plant need not be assessed because it was not the preferred option.
  • To say “there was no option to assess”, ignoring the possibility for choosing and assessing the impact of a permanent desalination plant
  • To find the fact that the water supply was not part of the application was something the Business Secretary was entitled to take into account.
  • To find there was no functional inter-dependence between the water supply and the power station.
  • To find there was no basis to find that the Business Secretary was irrational to judge that the power station and its water supply were separate projects
  • To say that there is no principle under the Habitats Directive requiring assessment at the earliest possible stage
  • Not to deal with TASC’s submission that the permanent desalination plant option could have been assessed.

The long read: Groundbreaking Changes: Unlimited Penalties for VMP’s and Expanded Scope in Environmental Permitting Regulations

Following on from last week’s report that Anglian Water were the first water company to receive a Variable Monetary Penalty (VMP) on 12th July (this week) the UK government published the responses to its consultation aimed at increasing financial penalties for VMP’s (currently £250k) to an unlimited amount and to introduce VMP’s into the Environmental Permitting Regulations 2016 (EPR).

The overall number of responses was only 105 but 88% of those responding agreed with the UK government’s proposals to change the cap for VMP’s with a further 85% agreeing that VMP’s should be introduced into the EPR 2016.

As a result the UK government have announced that it will now move to amend the legislation currently governing VMP’s with the proposed amendments seeing a removal of the current cap for VMP’s of £250k to an unlimited financial penalty and the introduction of VMP’s into the EPR. However although the EPR 2016 applies to both England and Wales the introduction of VMP’s into the regulations will only be applicable to breaches of the EPR occurring in England. It will be interesting to see if the Welsh government follow suit.

It is anticipated that the changes will come into force in the latter part of 2023. Once the amendments have been made the changes will apply with immediate effect to all operators who commit offences under the EPR or are issued with a VMP under the Environmental Civil Sanctions (England) Order 2010 (ECSO).

Currently VMP’s form part of both the Environment Agency and Natural England’s enforcement tools but the UK government has made clear that neither regulator will be able to utilise the new powers until such time that their public enforcement guidance is updated following the coming into force of the new legislation.

Concerns will no doubt arise in relation to method’s used by the regulators to calculate the amount of a VMP. To this end the UK government have confirmed that the size of the penalties will be subject to the environmental sentencing guidelines and will take into account the extent of the pollution and degree of responsibility for the offence, level of harm caused as well as the polluting company’s size and ability to pay. It is intended that money from the VMPs imposed on water companies will fund the new Water Restoration Fund which is part of the UK government’s Plan for Water.

With the Environment Agency chair Alan Lovell commenting that “We regularly prosecute companies and individuals through criminal proceedings but these new powers will allow us to deliver penalties that are quicker and easier to enforce even though the most serious cases will continue to go to court” does it mean that we are going to see an increase in the number of businesses being held to account for causing illegal pollutions with large penalties being imposed?

According to some campaigners in relation to water polluters this appears to be unlikely and they have questioned the governments real commitment to making polluters pay due to its reduction in the funding to regulators over recent years. One campaigner Reverend Paul Cawthorne who has been investigating unregulated chemical dump sites that were used by Monsanto to bury harmful chemicals commented that much of it looks like window dressing and said “Unless the UK government gives the Environment Agency more encouragement and management steerage to actually test the sediments and wildlife of rivers more often they will continue to miss much of the most serious industrial pollution that is increasingly impaction our river ecosystems”.

James Wallace CEO of River Action said to members of Greater London Authority on Tuesday of this week that there needs to be “very significant fines and penalties to water companies who pollute” and also commented that regulators have been ‘defanged’ by years of cuts to their budget and that agricultural is actually responsible for more pollution to our water ways with over 40% of phosphates coming off agricultural land from diffuse pollution”.

These amendments should signify a strong stance towards ensuring greater accountability and deterring non-compliance in the corporate sector but there will need to be a close monitoring of corporate behaviour in order to evaluate the effectiveness of such penalties in terms of promoting responsible business practices.