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Environmental Weekly News Round Up - 3 November 2023

Welcome to our weekly Environment Law News Update, where we bring you the latest developments, insights, and analysis in the world of environmental law. In this edition, I would like to acknowledge and thank the following contributors for their valuable input: Jill Crawford, Stefano D'Ambrosio-Nunez, Elizabeth Mutter, Ben Holland, Anastasia Panich and Chloe Moran.

Welsh Water’s Environmental Breaches and the Debate Over Regulatory Effectiveness

Welsh Water and Natural Resources Wales (NRW) have both found themselves under scrutiny recently following revelations that Welsh Water has violated environmental regulations over 200 times in the past six years and which surprisingly has only resulted in two financial penalties being imposed on Welsh Water.

NRW the regulatory body which oversees breaches of environmental regulations has documented 223 infringements since 2018.  The breaches range from illegal sewage discharges to water quality and supply violations.  Environmental groups have voiced concerns over the repeated violations and lack of stringent action from NRW against the water company with inevitable questions arising as to why NRW have not taken a tougher stance.

Gavin Bowen of NRW has responded to the criticism to say that while NRW do prosecute where appropriate the fines imposed by the courts are redirected to the UK Treasury Department and not for the restoration of the environment.  This implies that prosecuting a company for breaches of environmental regulations that result in pollution of the environment might not be an effective solution to the problems at hand.  However this response also raises fundamental questions about the efficacy and purpose of for example the Environmental Permitting Regulations.  If a regulatory body believes that prosecuting companies does not inherently benefit the environment, it casts doubt on the purpose of the regulations to ensure compliance and to act as a deterrent in the face of non-compliance.  The Environmental Permitting Regulations are designed to establish clear standards for protecting natural resources and making it a criminal offence to breach these standards is intended to ensure adherence.  The use of civil sanctions by the regulatory can be viewed by many as ‘soft option’ despite the potential financial benefits for the environment when compared to the harsher penalties available such as a criminal prosecution.  A successful prosecution (dependent upon the severity of the offence) can not only result in high financial penalties for the corporate offender but can also put senior managers at risk of being prosecuted in a personal capacity where it is found that the offence by the company was committed due to the ‘consent, connivance or neglect’ of senior managers in addition to the adverse publicity that inevitably arises.

Welsh Water have responded to criticism by defending their actions emphasising their transparency and compliance with enforcement action taken against it by NRW.  It stated that whenever issues arise it promptly informs NRW and ensures that corrective actions are taken in a timely manner.

The persistent issues that have arisen at the Cardigan wastewater treatment works highlights the challenges faced by both Welsh Water and NRW in relation to on-going illegal discharges by Welsh Water.  Although enforcement notices have been issued by NRW and attempts made to find feasible solutions the problems appear to be insurmountable without substantial investment in infrastructure upgrades.  Welsh Water has recently announced a £20 million investment plan to replace the problematic wastewater treatment works by 2030.

In conclusion whilst Welsh Water maintains that is has been transparent about its challenges and continues to invest in infrastructure the repeated breaches highlight the need for stricter regulatory oversight and the importance of having  mechanisms in place that both penalise and directly address environmental damage in order to retain public confidence in our regulatory system.


U-turn in moratorium on deep sea mining

In a recent press release (available here), the UK has announced for the first time that it will support the moratorium on the granting of exploitation licences for deep sea mining projects –in this context meaning projects relating to polymetallic nodules, polymetallic sulphides, and cobalt rich ferromanganese crusts– until sufficient scientific evidence is available to assess the potential impact of mining activities on marine ecosystems. To achieve this, the government will launch a new UK-based environmental science expert network to collect further scientific data. 

This means a U-turn from its original stance as the UK was one of the 14 countries sponsoring deep sea exploration or research contracts.

The International Seabed Authority (ISA), created through the UN Convention on the Law of the Sea, is the authority in charge of setting the rules for deep sea mining in areas where the seabed is in international waters, and also in charge of granting deep-sea mining contracts. 

The ISA is in a critical situation because the mining code for deep sea exploration is not ready, but in the absence of such code its regulations force it to accept mining applications under whatever regulations exist. This has led to several countries calling on a moratorium, pause or ban on deep sea mining during the ISA talks that took place on July 2023.

The UK government’s announcement was made just days before the ISA is set to debate the proposed moratorium, and one month before the start of the COP28 climate talks.


Forthcoming changes to oil and gas exploration licences and low emission zones

It is expected that Rishi Sunak will use the King’s speech to announce a new annual system for awarding oil and gas exploration licences, and also introduce measures that will make it more difficult for local authorities to create new low emission zones.

Just some days ago, 27 oil and gas licences were issued by the North Sea Transition Authority, which already caused some concern on how this would impact the UK’s net zero objectives. Therefore, it begs the question on how this new system for exploration licences will impact on net zero.

Unfortunately, specifics of how the new system for exploration licences will operate have not been released yet, so we will have to wait until 7 November 2023 to know how it will work. However, given the prime minister’s pro-oil stance, it is expected that this new system will be used to incentivise and accelerate the way these exploration licences are granted.


Environmental Policy Statement now implemented

 As of the 1st of November, the Environmental Principles Policy Statement has been implemented as promised under the Environmental Act. It covers 5 environmental principles:

  • the integration principle (integrating environmental protection into all policies)
  • the prevention principle (seeking to prevent environmental harm before it occurs)
  • the rectification at source principle (addressing environmental damage at its source rather than its later effects)
  • the polluter pays principle (costs of environmental damage borne by those causing it, rather than wider communities)
  • the precautionary principle (lack of full scientific certainty should not prevent action to address serious threat of environmental damage)

The integrations principle means the UK Government departments and Ministers in Westminster now have a legal obligation to consider how their decisions could impact the delivery of pledges on nature, pollution and waste.

The new statement is wide reaching and includes not only Bills and Acts but also statements, proposals, strategies and any other public-body documents which require ministerial approval. It also applies to policies that are currently in development.

The Office for Environmental Protection (OEP) found earlier this year that the UK is off-track across a range of 23 key green targets. This Statement seems to be a step in the right direction to attempt at rectifying this. It is a procedural duty, which means it does not guarantee that the final policies will be those that most favour these environmental principles, but it does put an obligation for these principles to be considered as factors in the decision-making process.

A failure to comply with this duty amounts to an unlawful action which can be challenged by way of judicial review.

In the context of planning, a previous challenge on the grounds that full a Strategic Environmental Assessment (SEA) should have been undertaken when considering changing national planning policy failed. It failed mostly because the courts found no legal requirement to consider Environmental impacts in respect of that policy document. If the same claim was to be brought now that this Statement is implemented – the outcome may very well be different. 

OEP’s chair Dame Glenys Stacey said the new policy “If embedded effectively across government departments the EPPS can be a powerful tool in helping to deliver the government’s stated ambition of leaving the environment in a better state for future generations.”


How close are we to levelling up with Environmental Outcome Reports? 

As briefly set out in last week’s round-up, the Levelling Up and Regeneration Bill received Royal Assent on 26 October (therefore becoming the Levelling Up and Regeneration Act). Consequently Environmental Outcome Reports (EORs) are set to replace the current EU-derived system of Environmental Impact Assessments (EIAs) and strategic environmental assessment. 

The idea behind EORs is that they will streamline the existing process be introducing an outcomes-based approach and reduce the duplication sometimes seen in EIAs. However, we are still awaiting much of the detail on EORs and even the Government’s response to the EOR consultation that closed on 9 June is yet to be published. 

What we do know is the Act will provide the Secretary of State with the power to make EOR regulations at the end of the two-month period beginning with the day on which the Act passed. Not that we are expecting EORs to replace EIAs in such a timeframe as much of the Act requires further secondary legislation and guidance. 

The Act will also require ministers to “have regard to the need to mitigate, and adapt to, climate change, taking into account the range of climate scenarios and risk relevant to the policies being developed” when preparing National Development Management Policies (a new type of national policy also introduced by the Act with the aim of simplifying Local Plans). This reflects a slightly watered shown version of what was proposed by the House of Lords which was “have regard to climate change when preparing planning policy” and we will wait to see the impacts this statement really has. 

So overall the Levelling Up and Regeneration Act may have received Royal Assent, but we anticipate there will be a lot more analysis needed in the coming months as the details of these changes become clearer. 


Waste not, want… a new classification?

DEFRA has announced plans to shake up the current  waste permit framework to provide for ‘waste transporters, ‘waste controllers’ and a hybrid permit where operators undertake both transporting and controlling in an attempt to reduce waste crime. 

The current rules ensure that any transporters of waste (other than households) are registered with the Environment Agency. This mechanism for waste operators has been long subject of criticism for allowing ‘cowboy’ waste operatives to infiltrate the sector which has seen a rise in environmental crime, mainly through misclassification of waste.

Following a consultation by DEFRA which closed in January 2022, the Government has now outlined plans to bring the regime in line with the Environmental Permitting System.

The historic terminology of carriers, brokers and dealers of waste will be retired and replaced with ‘controllers’ and ‘transporters’. The transporters are simply any transporter of waste whereas the controllers will be any entity (save for domestic) that organize waste collection, the classification of waste, end destination or arrange the recovery or disposal of waste on behalf of others and will also encompass those who buy and sell waste.

DEFRA has stated, following the consultation responses that by bringing waste transporters and controllers in to the Environmental Permitting Regulations, it will provide a “robust enforcement framework” in an attempt to combat waste crime and restrict criminal operations within the waste sector. We are yet to see any enforcement guidance which is said to follow from the Environment Agency.

A hurdle that waste operators and transporters will now have to overcome, is to demonstrate their ‘operator competence’ which will include technical specifications in line with the Environmental Permitting Regulations. The introduction of mandatory competence will ensure the Environmental Agency must be satisfied that the applicant(s) are able to meet any conditions of the permit they are applying for, including holding the correct level of technical competence. 

As with any new regulation, it would be unfair to immediately mandate these requirements. As such, any applicant applying for a permit in the first 5 years of the implementation of the new regime will have a grace period of one year to provide their proof of technical competency. 

DEFRA has said that the requirement of technical competencies will increase awareness of the importance of record keeping and the impacts of misclassification of  waste and illegal disposal of waste.

There is disappointment in the sector that waste exporters have not been included in these regulations and comments that DEFRA have missed a ‘golden opportunity’ to tighten regulation in the waste export scene. DEFRA have stated that they are “currently exploring alternative options for reform” for waste export.


Update on the Sycamore Gap Tree 

Following our earlier report on the world-famous Sycamore Gap tree, Northumbria Police have arrested two men in their 30s on suspicion of criminal damage. They have now been released on bail.  

A 16-year-old, and a man in his 60s who were previously arrested in connection with the incident remain on bail. 

Nobody has been charged with the illegal felling yet. 


In Your Defence: Are the Environment Agency doing enough to protect the UK from flooding? 

Storm Ciaran is currently moving northwards, and the Environment Agency has declared 82 areas of the country are at risk of flooding. 

However, the question that is on the mind of some MPs is has the risk of flooding been enhanced by the lack of poor flood defences and warning?

Greenpeace Unearthed recently uncovered that of England’s 64,000 ‘high consequence’ flood defences, 4,200 were rated as either condition 4, meaning poor, or 5, meaning very poor in 2022. 

The Environmental Agency said that it regularly inspects flood defences, and when there is danger of a flood, emergency repairs are carried out. It also stated that when an asset is below the required condition, it does not mean it has structurally failed, or that the performance is compromised. 

However, MPs in areas of England that have been badly hit by Storm Babet have called for a review of Environment Agency failings, after reporting that some residents only received flood alerts after their homes were flooded. 

Toby Perkins, MP for Chesterfield, stated that the EA are ‘clearly not up to the task’, and that they are an ‘organisation ill equipped to deal with flooding in the 21st century with the demands that are on it’. 

One of Chesterfield’s residents, Maureen Gilbert, sadly died in flooding in her home, after receiving a phone call warning only after her house had been deluged. The Environment Agency are currently working to ‘fully review what happened’. 

Many people within those areas were felt that they were not properly notified, which is blamed on cuts to the Environment Agency. Paul Morozzo from Greenpeace stated, ‘our crumbling flood defences are a symbolic and literal demonstration of the government’s failure to tackle the climate crisis.’

Whilst the climate crisis must be addressed, questions must also be raised to the effectiveness of the flood protection for the homes and the lives of many people within the UK. Storms are not going anywhere, and with the winter months only just beginning, it may be time to seriously consider upgrading those poor defences.