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Environmental News Round Up - 22 September 2023

Nitrate neutrality position finally neutralised

In the last few weeks this has issue has garnered a lot of headlines with the Government proposing very wide-ranging proposals that caught both the regulator, Natural England and local authorities by surprise. The proposals to the LURB were fully reported at the time, but during its course through the House of Lords each amendment was defeated.

What does this mean for the current position for nitrate neutrality in those 74 catchment areas? As the amendments were defeated they no longer form part of the LURB, so in the areas where this is an issue mitigation needs to be proposed to overcome any issues regarding nitrate neutrality. The nitrate mitigation schemes being proposed are maturing as the knowledge of how issues can be overcome grows, so it is a watch this space as to how the market can stabilise from these recent events.

It should be noted however that the new duty of the water companies to upgrade wastewater treatment works in these areas by 2030 as well as obligations on the water companies to reduce nutrient pollution to enhance the local environments are still requirements of LURB.

The LURB is aiming to secure royal assent by 7 November 2023.

OEP identifies possible failures to comply with environmental law in relation to regulatory oversight of untreated sewage discharges 

Another intervention by the OEP this time is has identified ‘possible failures’ by DEFRA, the EA and Ofwat in relation to the regulation of combined sewer overflows.

This is what has been stated:

Helen Venn, the OEP’s Chief Regulatory Officer, said: “Improving the quality of water in our rivers and seas is a complex challenge. There are no quick fixes. 

“We recognise that a great deal is already being done to tackle the issue of untreated sewage discharges, and we welcome the intent of Government measures such as the Plan for Water and storm overflow targets, as well as commitments to increase investment. We are aware that both the Environment Agency and Ofwat have investigations underway. We await the outcomes with interest. 

“We want to make sure that all of these measures and any investments made are as effective as they can be. A regulatory system that works as the law intends will be a key contributor to this. 

“As a result of our investigations so far, we think there may have been misinterpretations of some key points of law. The core of the issue is that where we interpret the law to mean that untreated sewage discharges should generally be allowed only in exceptional circumstances, such as during unusually heavy rainfall, it appears that the public authorities may have interpreted the law differently, permitting such discharges to occur more often.  

“This then has consequences for the regulatory activity that follows. The guidance provided by Government to regulators, and the permitting regime they put in place for the water companies, possibly allow untreated sewage discharges to occur more regularly than intended by the law without risk of sanction. This is what has created the possible failures to comply that we have identified. 

“Clarifying this point will ensure future efforts to improve water quality are built on a solid foundation. We will consider the responses from all three public authorities in detail before deciding next steps.” 

For the Environment Agency, the potential failures relate to the requirements of urban waste water legislation and the Agency’s resulting role in devising guidance, setting permit conditions for CSOs, and reviewing and enforcing of such conditions.  

For Ofwat, the potential failures relate to its interpretation of sewerage undertakers’ duties to effectually deal with sewage and Ofwat’s duty to make enforcement orders where sewerage undertakers fail to comply with such duties.

For Defra, the potential failures relate to the requirements of urban waste water legislation, water quality legislation, and Defra's duty to make enforcement orders where sewerage companies fail to comply with their own duties to effectually deal with sewage.

Campaigners granted permission to appeal against Sizewell C Nuclear Power Station ruling

The Sizewell C nuclear plant, in the Suffolk Coast and Heaths Area of Outstanding Natural Beauty, was granted planning permission by the then business secretary, Kwasi Kwarteng, in July 2022.

At the time, this was against the advice of the Examining Authority who had noted that a permanent water supply had not been identified for the nuclear plant.

Campaign group Together Against Sizewell C (TASC) brought a judicial review against Kwarteng’s decision. One ground of challenge being that the implications of the project as a whole had not been assessed, as by ignoring that a permanent water supply could not be secured would mean a new desalination plant would be required, and this should have been considered as a part of the same planning application.

The judicial review was dismissed by Mr Justice Holgate in June 2023 as it was found the approach to the water supply was lawful.

TASC since challenged this decision and has, this week, received permission to proceed to a hearing in the Court of Appeal. The scale and public interest surrounding the Sizewell C project was listed as one of the reasons for granting permission to appeal.

Critical moment for climate action 

Due to the recent heatwave in the UK and higher temperatures due to climate change affecting nearly everyone across the world it was only right that this week’s round up includes a short summary of the long awaited Global Stocktake technical report from (UNFCCC) which was released on 6th September.

The “Stocktake” in the context of climate change and the Paris Agreement refers to the Global Stocktake (GST) a periodic review of collective progress towards achieving the objectives of the Paris Agreement. The Paris Agreement was adopted in 2015 under the UNFCCC to address issues of climate change. It aims to keep global temperature rise well below 2 degrees Celsius above pre-industrial levels with efforts to limit the increase to 1.5 degree Celsius.

The Global Stocktake is an essential component of the Paris Agreement ‘ratchet mechanism’ aimed at progressively increasing the ambition of individual country contributions (Nationally Determined Contributions or NDC’s) over time. It is designed to assess the collective progress of all participating countries in reaching the agreement’s goals. The assessment takes into account mitigation adaption and the means of implementation and support like financial resources technology transfer and capacity building. The first Global Stocktake was scheduled for 2023 with subsequent stocktakes thereafter every 5years.

The process of stocktaking includes matters such as:

  • National Reports: Countries are expected to provide updated information about their NDC’s and related progress
  • IPPC Reports; Scientific data and findings from the IPCC are used to provide accurate understanding of climate trends and risks.
  • Contributions from Non-Party Stakeholders: Input from cities businesses and civil society organisations can also be considered to give a more holistic view of global efforts
  • Thematic Reports – which can include studies or reports on specific sectors like energy, agriculture or transport showing trends and options for reducing emissions or adapting to changes

The message however from the “Stocktake” was clear and unequivocal the world is simply not doing enough to tackle climate change and more is needed “on all fronts” and the rise in global emissions must be halted within two years to avoid the worst BUT it can be done.

“There are now sufficient cost-effective opportunities to address the 20230 emissions gap” the Report says. Urgent actions required are scaling up renewable energy and phasing out all unabated fossil fuels as well as ending the destruction of forests and reducing methane emissions especially from oil and gas.

The “Stocktake” will form the basis of discussions at the upcoming COP28 when all eyes will be on world leaders and whether we will finally see real collaborative action being taken on climate change. With only two years left to turn things around we are clearly now running out of time.

Climate Litigation in the UK: a possibility or a publicity stunt? 

This month, all attention will be given to Strasbourg, when the Grand Chamber of the European Court of Human Rights is scheduled to hear a case attempting to hold the (then) 33 EU member states responsible for wildfires that have ravaged Portugal since 2017.

The decision the claimants are seeking, would force the governments, including the UK, to take tougher measures against climate change.

Yet, even if the Claimants are unsuccessful, campaigners see a benefit to climate litigation. It has been argued that this form of litigation has an ability to focus minds on the climate. ‘Nothing has been as effective as litigation in communicating science and responsibility’ stated Joana Setzer, assistant professor at the LSE’s Grantham Research Institute on Climate Change and the Environment.

However, Montana recently seen a ground-breaking decision, where a judge ruled in favour of young people who had accused state officials of violating their constitutional rights by promoting fossil fuels.

The Judge found that a stable climate is guaranteed within the state’s constitution. Although this seems to be a positive for activists, it was described as a “publicity stunt staged by an out-of-state organisation, that exploited well-intentioned children”.

Whether there will eventually be the ability to bring a successful claim within the UK, is another matter. The UK has no constitution and does not guarantee the right to a healthy environment.

Moreover, Pindham, who is representing Friends of the Earth, has stated that international references by claimants in the case have been ignored by the Courts, as ‘UK judges aren’t really receptive’ to hearing about cases outside of domestic case law.

One of the tactics these litigants will use, by mentioning international jurisprudence, is to show that the UK is behind the tide in terms of climate litigation. It is an attempt to shame UK courts and make them feel a bit more comfortable in telling the Government if they have been unlawful in any given case based on some sort of statutory or legal obligation.

Even if there is no legal recourse for mentioning these international cases, it also allows the case to gain more publicity, which as mentioned earlier, is a win for the claimants, whether or not the case is successful.

Therefore, although there is no right to a healthy environment, international cases such as the Montana judgement could become more relevant within the UK. By mentioning these cases, and attempting to evidence that the UK is behind the tide, activist claimants may bring more publicity to their cases, which is beneficial even if the courts do not consider them to be relevant.

Bees struggle because of air pollution

The dangerous impacts of air pollution on human health, climate and biodiversity have been widely reported on in recent years but recent studies, funded by the Natural Environment Research Council, have shown its dire consequences on bees and food production.

Pollinators play a crucial role in our ecosystem and environment conservation. Dr Ben Langford, an atmospheric scientist at UKCEH found that:

"Some 75% of our food crops and nearly 90% of wild flowering plants depend, to some extent, upon animal pollination, particularly by insects. Therefore, understanding what adversely affects pollination, and how, is essential to helping us preserve the critical services that we rely upon for production of food, textiles, biofuels and medicines, for example."

A research team comprising the UK Centre for Ecology & Hydrology (UKCEH) and the Universities of Birmingham, Reading, Surrey and Southern Queensland, found that “ozone substantially changes the size and scent of floral odour plumes given off by flowers, and that it reduced honeybees' ability to recognise odours by up to 90% from just a few metres away.”

Changes to ground-level ozone occur when nitrogen oxide emissions (also known as NOx pollution which is emitted by cars, boats, construction equipment as well as, on a larger scale, power plants and turbines) react with organic compounds produced by vegetation in the presence of sunlight.

Even independently from the ozone’s effect on pollinators, it in itself damages plant growth thus impacting food production and security.

As air pollution increases, bees struggle to recognise the odours they need to ensure pollination as well as their survival because not only does the ozone affect their ability to find flowers and food, but it also impacts their ability to attract a mate and reproduce.

If we combine this research with a study led by PhD researcher Chris Wyver, which examined the effects of changing temperatures on 88 different species of wild bees over a period of 40 years, we see that the negative impact does stop there. He found that rising temperatures are causing bees to emerge from hibernation earlier meaning there may not be sufficient food for them to survive as bees usually “match their waking-up dates with the exact time of plant flowering so that they find pollen and nectar that increase their chances of survival and produce offspring.”

The continued negative impact of air pollution on bees is having, and will continue to have, drastic effects unless action is taken to reduce air pollution. As Professor Christian Pfrang from the University of Birmingham who collaborated on the research concluded “should act as a wake-up call to take action on air pollution and help safeguard food production and biodiversity for the future."

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