Environmental News Round Up - 8 September 2023
Reassessing Energy Commitments: The UK’s Treaty Withdrawal Debate
The Minister for Energy Graham Stuart indicated on 1st September that the UK government may withdraw from the Energy Charter Treaty stating that efforts to modernise upon which the UK government have been leading the way have not been progressing as quickly as it had hoped, although there was certainly no indication of a definite withdrawal from the Treaty by Graham Stuart.
The Energy Charter Treaty is a legally binding international agreement aimed at promoting energy cooperation and investment protection among its signatory member states. The Treaty was originally signed in 1994 and has since been ratified by numerous countries including both the EU and non-EU countries. It provides a framework for the protection of investments in the energy sector and establishes a dispute resolution mechanism for investors and stakes. It seeks to ensure a stable and predictable environment for energy investments by establishing rules and standards for energy trade, transit and investment protection.
A number of countries including the EU have already withdrawn from the Treaty in relation to the ECT’s provisions and in particular its ISDS mechanisms and their potential impact on national policies and sovereignty. By way of example Spain’s withdrawal was influenced by several ISDS cases it faced following changes to its renewable energy incentive schemes which resulted in substantial clams from investors. These concerns have led to the current discussions about potential reforms to the Treaty.
Net-Zero Review Author Chris Skidmore has been quoted as saying that the UK’s withdrawal “cannot come soon enough”.
So in a nutshell what are the advantages and disadvantages for the UK to withdraw from the Treaty:
It would allow the UK government to have more control over its energy policies.
It would give the UK greater flexibility to adapt and implement energy policies in line with its changing energy landscape, including efforts to transition to renewable energy and meet climate goals.
Withdrawal might reduce the risk of facing costly Investor-State Dispute Settlement (ISDS) cases which can occur under the ECT if investors believe their rights have been violated.
Withdrawal may create uncertainty for international investors in the UK’s energy sector, potentially reducing direct foreign investment in energy projects at a time when investment in the UK is crucial;
UK investors with other ECT member states might lose the protections provided by the Treaty;
It could affect the UK’s trade relationships with other ECT member states potentially impacting energy trade and cooperation.
With Graham Stuart quoted as saying In its current form, the Energy Charter Treaty will not support those countries looking to make the transition to cleaner, cheaper energy sources such as renewables – and could even penalise our country for being at the forefront of those efforts and the EU saying that a mass exodus from the Treaty by its own member states being inevitable it certainly places the UK government under some pressure to make a decision sooner rather than later.
UK Government Confronted with Fresh Legal Action Over Climate Plans
Friends of the Earth (FoE), Client Earth and the Good Law Project have again joined forces (so to speak) to challenge the UK government on the legalities of its revised Net Zero Strategy. The legal challenge also includes the UK governments Carbon Budget Delivery Plan which was introduced in March 2023. All three groups have lodged their applications in the High Court with the High Court announcing on 1st September that a date will be set in due course for a three day ‘rolled up’ hearing where each of the parties will be given the opportunity of presenting their cases.
Although all three groups are saying that the Net Zero Strategy lacks specific detail and the levels of incentives needed for business to realistically achieve net zero and crucially will not deliver the level of decarbonisation in line with the legal requirements and duties under the Climate Change Act they each have their own different legal challenges.
FoE will argue that under S13 of the Climate Change Act that the Secretary of State (SofS) for Energy Security and Net Zero acted unlawfully by not considering delivery of risk in a lawful way and amongst others that the SofS unlawfully failed to put forward proposals that ‘must’ contribute to sustainable development. S14 of the Climate Change Act is also being raised as part of the challenge as FoE state that the Carbon Budget Delivery Plan unlawfully does not include information material to the critical issue of risk to the delivery of the carbon budgets.
The Good Law Project will focus on the UK government’s refusal to include a proper assessment of the delivery risk associated with the policies and proposals in the Carbon Budget Delivery Plan which in itself is a breach of S14 Climate Change Act.
Client Earth’s legal challenge is around what it says is the UK government’s failure to have regard to considerations that are legally essential under S13 of the Climate Change Act in relation to the risks of the UK government’s plans not delivering the emissions savings required to meet the UK’s climate target.
The date for the hearing should be announced shortly.
OEP v Secretary of State round 3
Last week, changes were proposed to the Levelling Up Bill requiring developers to invest in a new £280m scheme by Natural England, where the pollution would be offset by the creation of wetlands or upgraded infrastructure. However, these amendments also require councils to assume that nutrient pollution from new developments will have no impact on protected sites and to ignore any evidence showing the opposite, which the OEP considered a regression in environmental law.
The Secretary of State released a response letter to the OEP’s warning providing that her position is that this change will not constitute a “regression in environmental outcomes”. The response explains that the issue of nutrient neutrality arises from EU legislation and case law release after Brexit, which was qualified as a “burden” that has blocked several housing projects across 62 local planning authorities. Secretary of State also referred to the wider package of measures included in this amendment allowing to pursue nature improvements and offset the nutrients from new developments.
This situation has triggered a rebellion as Conservative peer Duke Wellington published a new proposed amendment, which would remove the requirement on the local authorities to assume that nutrients in wastewater will not cause harm to the environment. This amended has been backed by Labour’s Baroness Jones, Conservative peer Lord Randall, and Liberal Democrat’s Baroness Parminter, among others. This amendment is due to be debated in the House of Lords on Wednesday 13th September.
Meanwhile, this week the House of Lords has been debating the nutrient neutrality matters. On Monday 4 September, the Secretary of State for Levelling Up, Housing and Communities discussed its Long-term Plan for Housing and Nutrient Neutrality (see here) and on Tuesday 5 September, members quizzed the government in urgent questions on nutrient neutrality in the LURB (see here).
UK Government ignores persistent warnings over air quality rules.
When the Office for Environmental Protection (OEP) was set up in 2020, there was hope that previous efforts to regulate and enforce environmental law in the UK would be maintained post Brexit. However, despite its good intentions, it is evident that the OEP is fighting an uphill battle against the Government’s continued efforts to jeopardize environmental protections.
Environment secretary, Thérèse Coffey recently reiterated that she intends to revoke regulations 9 and 10 (amongst others) of the National Emission Ceilings Regulations (NECR). In doing so, she is not only ignoring the OEP’s advice and concerns but also increasing public opinion that the government is actively attempting to “skirt accountability” against its duties to reduce air pollution.
- Regulation 9 requires the government to prepare and implement a national air pollution control programme to reduce pollutants (such as nitrogen oxides and ammonia) in accordance with its national emission commitments.
- Regulation 10 requires the secretary of state to consult the public before any significant revisions are made to the National Air Pollution Control Programme (NAPCP)
The OEP, as well as numerous advocates, clearly write that Regulation 9 contains “important safeguards” in terms of accountability that should not be disregarded.
This regulation ensures that if emission inventories or projections show that the UK are (or are at risk of) exceeding the NAPCP - the secretary of state would have to review it within 18 months. The need to review the NAPCP creates “ongoing, statutory accountability as well as supporting course correction if the UK is not on track to meet its commitments.”
It could be argued that this regulation is needed now more than ever as a result of recent projections. In addition to which, as chair of the OEP Dame Glenys Stacey highlights, the government “did not meet the emission reductions required for PM2.5 in 2021” – indicating insufficient progress is being made towards the UK’s legally binding emission reduction commitments.”
In her response to the OEP’s warnings, Coffey stands firm and disagrees that there would be a “reduction in the level of environmental protection.” She claims that the reason for removing these regulations is to “reduce administrative burdens and aid transparency regarding air quality emissions policy.”
Environment experts still criticise her response, saying it amounts to weakening existing legal air pollution protections. And it is indeed hard to see how deleting safeguards and removing accountability, without an alternative plan in place, protects environmental protections.
Emily Kearsey, a lawyer at the charity ClientEarth, said: “While air quality in the UK is already at public health crisis levels, this government is now trying to weaken existing legal protections for the air we breathe. This is wholly unacceptable – particularly from a government that has committed to making the UK an environmental leader”.
It is not enough to look at the present, but casting an eye on the future it foreshadows, as Ruth Chambers of the Greener UK coalition states, that “next year ministers could be under fewer obligations to improve air quality.” This in turn could lead to a potentially dangerous snowball effect affecting us all years to come.
Despite the criticisms and recent acts, we await updates in the hope that the Secretary of State – as she declares – does in fact “remain committed to achieving the reduction targets set out in the National Emission Ceilings Regulations and are maintaining the reporting provisions to ensure there is transparency on our progress.”
The Government has confirmed a softening of the planning rules for onshore wind
Onshore wind projects have been notoriously difficult to gain planning permission since new rules were introduced by the Conservative government in 2015, meaning England has fallen far behind other countries in onshore wind turbine construction. Earlier this year, numerous news outlets reported even Ukraine built more onshore wind turbines last year than England.
The existing rules that have proven so difficult to overcome are in the current version of the National Planning Policy Framework (NPPF), and provide that onshore wind projects can only receive planning permission if (1) the site has been identified as suitable for such development in the local or neighbourhood plan, and (2) any “planning impacts identified by the affected community have been fully addressed and the proposal has their backing”. This combination has resulted in a de facto ban on new onshore wind projects and some proposals have been derailed by a single objection.
It has therefore been welcomed that the Government has announced this week, as part of their amendments to the NPPF, a softening of these rules. However, some parties have suggested the proposals do not go far enough.
The updated NPPF will allow for alternative ways of identifying locations for new wind projects, including local and neighbourhood development orders or community right to bid orders. Thereby speeding up the process of allocating suitable sites. Also, when addressing community concerns, these will need to be “satisfactorily addressed” (rather than “fully addressed”). The hope is that this will mean, even if a small number of locals object, the support of the rest of the community will mean, on balance, permission should be granted for more projects.
There is also clearer support for the repowering of existing windfarms in the updated NPPF.
More detail is expected in the Autumn on improved benefits and rewards for local communities backing onshore wind farms.
Data Suggests Three Water Firms Illegally Spilled Sewage
A BBC investigation suggests that Thames, Wessex, and Southern water have collectively released sewage for 3,500 hours in 2022.
Only when it’s raining can water companies release sewage into rivers and seas to prevent pipe systems becoming overwhelmed or blocked.
The process of ‘dry spilling’ is banned because it can lead to higher concentrations of sewage in waterways, whereas when it is raining the sewage is likely to be less diluted. Without rain, there are more build-ups of algae, which produce toxins that can pose fatality to pets, and pose a health risk to swimmers.
It is alleged that throughout 2022, that the above water companies collectively released sewage on dry days 388 times. There is also evidence that on the hottest day of the year, 19 July 2022, sewage was spilled by all three companies, when temperatures topped 40C. This is exceptionally dangerous, as people were reported to have cooled off in rivers during this time.
The remaining six water companies in England did not provide information, as they stated they are already being investigated by industry regulator Ofwat, and the Environmental Agency already.
Wessex Water argued that three spills were due to rising groundwater, and therefore legal, whilst contesting the claims on other spills. As Thérèse Coffey put to the BBC, it is for the Environmental Agency to investigate these allegations.
Whether this occurs or not, is questionable. It is alleged that there is a firm link between the agency’s failure to identify and investigate such spills and budget cuts and staff losses. Because of these cuts, more and more water companies are to report their own dry spilling incidents, which does not seem to promote an honesty culture in the reporting of incidents, as we have seen from these allegations.
Despite concerns, we will await a full investigation into the alleged spills, and an assessment into the damage, if true, this may have caused.