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Environmental news round up - 28 July 2023

Thought for the day: Politics v The Environment (Again)

It has been a week since the Uxbridge by-election where the Conservative party were able to hold the seat left by the former PM Boris Johnson.  The cause of the labour defeat has been put down to the London Mayor’s expansion of the Ultra Low Emission Zone (“ULEZ”) across the capital. Headlines have been raging about this and the Conservative back benchers feeling it is their moment to pounce have called for a rethink on green policies and legislative requirements.

Supporters of ULEZ however have stated those that wish for no action should visit the hospitals and schools of London and see the impacts of poor air quality is having on the children of London – the next generation already suffering severe health effects.

The country as a whole supports action on climate change.  We are seeing the devastating effects of climate change across the world with flooding, severe heat and of course the wild fires which seem to be engulfing large parts of Europe. 

It is being reported today, that the extreme heat and drought we suffered last year will become the norm, so if we can see and feel the impacts of climate change then why are we still stuck in the debate of doing something about it and more importantly  - who pays for this? 

Consultation season is upon us

The last few weeks saw the launch and closure of a number of consultations and calls for evidence. Some of the pertinent ones are listed below:

  • Scottish government consultation on the effectiveness of environmental governance – open until 29 September 2023
  • Call for evidence on nature-based solutions, farm efficiency projects and diversification – open until 25 September
  • DEFRA consultation on protecting hedgerows – open until 20 September
  • HSE consultation on proposed changes to Cost Recovery – open until 4 September
  • Call for evidence by Department for Energy Security and Net Zero on price-based competitive allocation for low carbon hydrogen– open until 11 August
  • Some consultations on chemical authorisations by HSE – open until 7 August (some of these already closed on 10 July)
  • Consultation on strategy and policy statement for energy policy in Great Britain – open until 2 August
  • Ofwat consultation on environmental incentives to support sustainable new homes (changes to its charging rules) – open until 1 August
  • DEFRA consultation on storm overflows discharge reduction plan – closed on 24 July
  • Scottish government consultation on implementation timescales for the new environmental quality standard for emamectic benzoate (EmBz) – closed on 24 July
  • DEFRA call for evidence on elimination of biodegradable waste disposal in landfill - closed on 14 July
  • Consultation on local partnerships for Onshore Wind in England – closed on 7 July

Read more here for analysis about the call for evidence on nature-based solutions, farm efficiency projects and diversification.

Challenging Shell’s Climate Strategy; Client Earth’s Legal Battle and the Pursuit of Net Zero Emissions by 2050

On 24th July in the High Court in London Judge William Trower again refused permission to Client Earth to bring a case against Shell over its climate strategy. 

Client Earth which is a shareholder in Shell brought a lawsuit against the company claiming that the company could not achieve its aim of net zero carbon emissions by 2050 with the current climate strategy it had in place and that its directors were in breach of their duties to shareholders.

Client Earth first brought the case in February of this year when it filed a case against Shell’s Board of Directors for failing to move away from fossil fuels fast enough.  As Client Earth is a shareholder of Shell it filed the claim on behalf of Shell under the “derivative claims” procedure set out in the Companies Act 2006.  This procedure allows shareholders to bring claims on behalf of the company but requires the courts permission.  The court can refuse permission if the application and supporting evidence do not establish a prima facie case or if the shareholder is not considered to be acting in good faith.

Client Earth argued that Shell’s Board is legally required to manage risks to the company that could harm its future success and the climate crisis presented the biggest risk of them all.  It further argued that its climate strategy failed to deliver the reduction in emissions that is required to keep global climate goals within reach and it provides for the continuation of fossil fuel production for decades to come.  It claimed on that basis that Shell’s Board is in breach of its legal duties under the Companies Act to manage climate risk facing the company.

Judge William Trower first ruled on the case on 12th May when he dismissed the case.  However the court did accept that Shell faces material and foreseeable risks as a result of climate change which would have or could have a material effect on it.  He agreed though with Shell that ultimately it is for the directors to decide how best to promote the success of the company. 

The court’s decision 12th May was decided on the basis of written submissions and Client Earth requested an oral hearing for the ruling to be considered which took place on 12th July with Judge William Trower issuing his ruling on 24th July.  At the oral hearing Client Earth asked the Judge to reconsider his dismissal of the claim on 12th May but he again rejected the claim and refused to grant permission for Client Earth to continue its claim and agreed with Shell that the arguments put forward were insufficient.

The Judge said that Client Earth’s case ignores the fact that the management of a business of the size and complexity of that of Shell will require directors to take into account a range of competing considerations in which the court should not interfere.  With Client Earth only holding 27 shares and being a known activist it was stated by the Judge that there is a clear inference that Client Earth’s real interest in bringing the claim is not for all the shareholders

Shell welcomed the decision of the court and said “this is the right outcome… the claim is fundamentally flawed and the court has once again dismissed it”.

However it must be borne in mind by those who consider that this is a victory against climate activists that climate change litigation is growing and the number of claims have doubled since 2015.  Lessons will be learnt by climate activists from the reasonings and decisions made in this case and it is highly likely that we will see even more imaginative claims being brought in the foreseeable future and Client Earth have already indicated that it will appeal.

Could improved energy efficiency targets for privately rented homes be on the chopping block post-by-election results? 

Even though incredibly close in Uxbridge and South Ruislip, following last week’s by-election results there has been non-stop discussions about whether Labour and the Conservatives should hold firm on their environmental pledges or not.

Michael Gove, Secretary of State for Levelling Up, Housing and Communities, warned the Conservatives against "treating the cause of the environment as a religious crusade". While he has said some targets are immoveable, such as the ban on the sale of new petrol and diesel cars by 2030, he has suggested others may be more flexible.

For example, that all landlords are to ensure all new tenancies for private rented housing meets grade C of energy efficiency requirements by 2025 and, for existing tenancies, by 2028. Consultations on raising the minimum requirements began in 2020 but the proposals are still yet to make it into legislation, making the supposed deadlines seem improbable regardless of the by-election results.

Currently, the Domestic Minimum Energy Efficiency Standard Regulations (the so called “MEES Regulations”) set the minimum energy efficiency level for domestic private rented properties at EPC band E. Failures to meet these requirements are enforced by local authorities and can lead to financial penalties for landlords.

The Government’s own webpage providing landlords guidance on minimum energy efficiency standards currently says the Government hopes to have as many privately rented homes as possible upgraded to EPC band C by 2030 “where practical, cost-effective and affordable.” The webpage was last updated on 13 April 2023.

Lords Environment and Climate Change Committee report - government “clearly not on course” to meet 2030 target on protecting land and sea

This detailed report, released by the House of Lords’ Environment and Climate Change Committee on Wednesday (26 July), suggested that the government is not on track to meet the ’30 by 30’ pledge. The commitment was made in December 2022 at COP15 to commit to the international commitment to protecting 30% land and sea for nature by 2030.

In England, currently only 6.5% land and sea meets the required criteria – far below the 30% committed to be achieved in just 7 years. The report states that the government is “clearly not on course to meet 30 by 30” and that to achieve the target would require “urgent action” which should be set out in a delivery action plan. It also holds that the government “faces an extraordinary challenge to halt species decline and recover nature for public good” and to ensure that 30 by 30 becomes more than a “valuable galvanising slogan for international political agreements”.

The report suggests that, as well as there being a need for a huge increase in the areas afforded protection, areas already protected to some degree may require additional monitoring and management to ensure they remain protected long-term.

The report can be read in full here.

Britain’s Extended Producer Responsibility scheme faces delays 

The proposed Extended Producer Responsibility (EPR) scheme was first proposed in 2018 as part of the Government’s Resources and Waste Strategy. The scheme was due to launch in October 2024, but the Department for the Environment Food and Rural Affairs announced this week that it now will not launch until October 2025.

The scheme will shift the cost of managing packaging waste from councils and the taxpayer onto businesses, following a “polluter pays” principle. These costs can then be reduced by businesses if they improve material efficiencies and/or adopt formats that are easily recyclable.

A number of other schemes proposed in the Resource and Waste Strategy have also been delayed. For example, the deposit return scheme and introduction of weekly food waste collections from homes.

The delay in the EPR scheme is supported by the Industry Council for Packaging and the Environment and the British Retail Consortium, and many commentators have said a lot more clarity is needed before the scheme can be introduced.

Environment Minister Rebecca Pow said of the delay “We’re determined to transform the way we collect, recycle and reuse our waste materials so we eliminate all avoidable waste by 2050 in a way that works for households and consumers. That’s better for our environment. We are also listening to industry and ensuring our work to tackle inflation and to drive up recycling go hand in hand, to make sure our reforms will be a success.”

Coal Authority takes enforcement action against Britain’s largest open cast coal mine

The Ffos-y-Fran mine in Merthyr Tydfil, South Wales is one of the largest coal mines in the UK, producing around two-thirds of the UK's coal. This mine was supposed to close in September 2022, but the operators, Merthyr (South Wales) Ltd submitted a planning application to extend the life of the mine until 31 March 2024.

Since then, the operation of the mine has faced several issues.

The planning application to extend the life of the mine was refused. The most relevant reasons for refusal were that: 1) the application failed to show that the extraction of coal is required to support industrial non-energy generating uses, and 2) the extraction of coal was not required in the context of reduction of greenhouse gases.

As the mine continued operating without a planning permission, the local authority issued in May 2023 an enforcement order to cease the extraction by the end of July, but the operators appealed at the last minute.

Recently, the Coal Authority also got involved and has requested the cessation of coal-mining operations with immediate effect.

The reason provided in the enforcement letter (available here) is that the operators have been carrying out mining operations outside of the agreed licensed area. The Coal Authority visited the site on May 2023 and requested the operators to prepare a plan and program setting out how to bring the operations to an end, but this request was not complied by the operators.

The operators have not yet submitted any representations or objections against the Coal Authority’s enforcement order.

Given the precarious legal situation of the mine at this time, the operations of this large mine might not be able to continue for much longer.

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