Environmental Weekly News Round Up - 24 November 2023
Welcome to our latest weekly Environment Law News Update, where we bring you developments, insights, and analysis in the world of environmental law. Once again, I'd 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.
Wave farewell AONBs and say hello to National Landscapes
It was announced this week that areas designated as Areas of Outstanding Natural Beauty (AONBs) will now be known as National Landscapes to better reflect their national importance.
There are currently 34 AONBs in England and they have been designated as such as they meet the ‘natural beauty criterion’, including landscape quality, relative wildness, relative tranquility, and natural heritage features. Once designated, the relevant local authority must ensure all decisions they make have regard for the purpose of conserving and enhancing the AONB and each AONB must have a management plan.
However, way back in 2022, the Government responded to the Glover Landscapes Review with a series of proposals, including that the national significance of AONBs should be reflected in their name. It was said “Any name change must represent a step change for AONB teams with the ambitious new title encompassing new purposes delivered by skilled teams, sustainable funding and robust governance.”
Now, as of Wednesday 22 November, AONBs are officially National Landscapes. The National Landscapes Association have said “This is a significant milestone for the UK and the next step in fully realising the National landscapes’ vision to be the leading exemplars of how thriving, diverse communities can work with and for nature in the UK: restoring ecosystems, providing food, storing carbon to mitigate the effects of climate change, safeguarding against drought and flooding, whilst also nurturing people’s health and wellbeing.”
What did the Autumn Budget have to say about the environment?
The Autumn Budget, delivered by Jeremy Hunt on Wednesday 22 November, touched on a surprising number of environmental topics. For an assessment of what was said on planning fees, PPAs, Local Development Orders, electric vehicles, nutrient mitigation, permitted development and NSIPs, Nicola Gooch’s summary of these budget announcements can be read here. An overview of some of the other points of environmental interest is set out below.
Climate change levy rates
Climate change levy rates are added to electricity and fuel bills. The statement provided that the government will “freeze main and reduced rates of [the] Climate Change Levy in the UK in 2025-26 at the main rate of £0.00775/kWh for electricity and gas, £0.02175/kWh for liquid petroleum gas (LPG), and £0.06064/kWh for any other taxable commodity. Reduced rates will be frozen at 92% for electricity, 77% for LPG, and 89% for gas and any other taxable commodity."
Climate change agreements
A fresh consultation on proposed a six-year climate change agreements scheme has been launched which could provide discount on the climate change levy. These agreements would be voluntarily made between the Environment Agency and UK industry to reduce energy use and carbon dioxide emissions. Operators would then be eligible for discount on the climate change levy.
Industrial Energy Transformation Fund (IETF)
£185m has been allocated to the IETF to support the decarbonisation efforts of industrial sites.
Plastic packaging tax
In addition, it was said the rate of Plastic Packaging Tax will be increased from 1 April 2024 to bring it in line with the consumer price index.
Energy efficient homes?
One of the things missing from the Autumn Statement, and barely mentioned since it came up in the Autumn Statement 2022, is the £6bn pledged to improve energy efficiency in households, businesses and the public sector between 2025 and 2028. The relevant taskforce was scrapped in September and Rishi Sunak has announced a rollback on the requirement for landlords to improve the energy efficiency rating of their rental properties by 2028. A significant disappointment when considering the UK has some of the least efficient housing in Europe.
Official complaint submitted to the OEP claiming the UK government has breached environmental law
Earlier this year, DEFRA allowed the use of a pesticide known as Cruiser SB on sugar beet crops in East Anglia. Although this was granted as an emergency measure, ClientEarth believes the use of Cruiser SB is a breach of environmental law as it goes against expert advice.
Cruiser SB poses a serious risk to pollinators (such as honey bees) and freshwater aquatic life. Thiamethoxam, the active ingredient in Cruiser SB, is especially dangerous to pollinators who are crucial to: maintaining the ecosystem and biodiversity, ensuring the production of a variety of crops and preserving our food security. The Health and Safety Executive (HSE) and the Expert Committee on Pesticides reported serious concerns and “pointed out that even non-lethal doses of thiamethoxam could compromise pollinators' ability to forage and navigate, potentially leading to a “reduction in honeybee survival”.”
ClientEarth’s complaint points to the fact that this pesticide has been banned in the EU because of the danger it poses to bees. Moreover, Cruiser SB is just one of the “36 pesticides approved in the UK which are no longer permitted for use in the EU” according to recent research by PAN UK. This is despite government’s continued promises to maintain and increase environmental protections and its clear acknowledgment of the risk of pesticides to pollinators “in its 25 Year Environment Plan of 2018, and in the Environmental Improvement Plan of 2023”.
Pesticides, Cruiser SB especially, is not only dangerous for pollinators but for marine life as well. Neonicotinoid pesticides affects the soil and rivers for years. The Environmental Agency has recently found “that more than one in ten English rivers now contain neonicotinoid pesticides, with many of these at levels which are considered unsafe for aquatic life.”
In response to the complaint, a DEFRA representative said: “In years of high incidence, yellow beet virus is a significant threat to UK sugar beet farmers who produce around 60% of our sugar. That is why, after careful consideration, a tightly controlled emergency authorisation for use of Cruiser SB as a seed treatment on sugar beet was issued.” DEFRA has gone on to say, “This decision was not taken lightly, and the use of the product was strictly limited to mitigate risks to the environment, including potential risks to pollinators.” The outcome of the matter remains to be seen.
Navigating a Sustainable Future: The Scottish Aggregates Tax Explained
The Scottish government has recently unveiled plans for the Scottish Aggregates Tax (SAT) a bill aimed at promoting the recycling of construction materials. This move detailed in the Aggregates Tax and Devolved Administration(Scotland) bill is set to replace the existing UK Aggregates Levy in Scotland. The bill introduced to the Scottish parliament on 14th November is part of a broader strategy to foster a sustainable circular economy.
Some key aspects of the Scottish Aggregates Tax (SAT) are as follows:-
- It aligns with the circular economy goals. The Scottish government’s policy memorandum highlights that while SAT alone will not fulfil all ambitions for a circular economy, it acts as a crucial price signal. It complements other measures in the construction sector aimed at reducing reliance on primary aggregates;
- The Circular Economy Bill introduced in June of this year seeks to empower ministers to set localised recycling targets and statutory objectives for a circular economy. The SAT is aligned with these broader legislative efforts indicating an integrated approach to environmental policy;
- The SAT is designed to discourage unnecessary exploitation of primary aggregates such as sand, gravel or rock and to encourage the use of secondary aggregates. This shift is expected to stimulate the development of alternative more sustainable construction materials;
- The UK levy implemented in 2002 charges £2 per tonne for certain aggregates. This rate is set to increase to£2.03 in 2024. The Scottish bill mirrors some exemptions of the UK levy such as for secondary aggregates and certain types of rock sand or gravel not typically used in construction.
- The financial memorandum accompanying the bill clarifies that the tax rate will be determined through secondary legislation taking into account various economic and environmental factors;
- The move to establish SAT follows delays in devolving the levy due to legal challenges at the European Court concerning exemptions in the UK levy for secondary aggregates. The Scottish bill aims to incorporate similar exemptions to ensure compliance and avoid similar legal hurdles.
Analysis and Implications
The introduction of SAT represents a significant step towards embedding environmental considerations into economic policy. By incentivising the use of recycled materials and alternative options, the SAT aligns with Scotland’s wider goals for a sustainable circular economy. It reflects a growing trend for integrating environmental objectives into fiscal policies recognising the role of economic instruments in driving ecological change.
However, the effectiveness of the SAT in significantly advancing Scotland’s circular economy goals remains to be seen. The success of the tax will depend on its rate, the responsiveness of the construction industry and how well it integrates with other environmental measures. The careful balance of economic and environmental considerations in setting the tax rate will be crucial to ensure that it effectively incentivises the desired behaviours’ without placing financial burdens on businesses.
Furthermore, the SAT also illustrates the complexities involved in devolving taxation powers and aligning them with local policy objectives especially in areas like environmental regulation that interact with broader economic interests. The bill’s progress and implementation will be closely watched both within Scotland and by others considering environmental fiscal reforms.
DEFRA failures ruled as illegal
In a landmark ruling this week (20 November 2023), the Government and the Environment Agency (EA) have been found to have failed in their legal duty to review, update and put in place measures to restore rivers and other water bodies.
Fish Legal launched a judicial review challenge of DEFRA’s 2022 River Basin Management Plans (RBMP) which were first introduced in 2003. Fish Legal, representing a Yorkshire based angling club, the Pickering Fishery Association, argued that the RPMB “lacked the legally required measures necessary” to restore Upper Costa Beck; a formerly prime trout and grayling fishery, now degraded by pollution.
The Upper Costa Beck, once highly populated and a core fishing destination is now failing for fish. One of the reasons that Fish Legal presented related to Yorkshire Water’s storm overflow. The “storm” sewage was released from the Pickering treatment works in to the Upper Costa Beck more than 250 times in 2020 and more than 400 times in 2019.
In the landmark ruling, Mrs Justice Lieven stated that the EA and government haven’t met their mandatory obligations to restore rivers and waterways under the Water Framework Directive Regulations. Mrs J Lieven agreed with Fish Legal’s argument that the EA had failed to follow through with its proposed action against polluters. She went further and concluded that there was no evidence that the programme of measures could be expected to achieve their stated objections. The angling club said that the secretary of state was planning to fail.
The judge accepted discharges were contributing to the poor condition of the river and said that, under the regulations, discharges for specific rivers such as the Costa Beck need to be regulated more tightly, if their condition is to improve.
This case has opened the floodgates for challenge and provided a precedent to hold the EA and Government to account. We may see a flurry of similar challenges coming to the court for other river basin plans throughout the country affecting the 4,929 water bodies. This pinnacle case will undoubtedly provide Steve Barclay with some turbulence at the start of his time as the new environment secretary; we may see an overhaul of the Department for Environment, Food and Rural Affairs having to overhaul plans. However, this would bring a positive impact on watercourses and rivers throughout the country; perhaps ministers and government bodies will finally begin to take their environmental commitments and obligations seriously. Time will tell.
Ecocide a Crime within the EU? Not quite yet…
The European Union has decided to criminalise wide-scale environmental damage ‘comparable to ecocide’ and is the first international body to do so. The agreement has followed months of negotiation between the Council of the EU, European Commission, and parliament, as well as civil society campaigning.
The environmental crime directive has been updated, punishing the most serious cases of ecosystem destruction, including illegal logging and habitat loss with much tougher penalties. The directive will formally be passed in the spring, and member states will have two years to put it into national law.
Having a permit to carry out listed activities will not always be an excuse, individuals and companies will have committed a crime if that authorisation was obtained fraudulently, by corruption, extortion, or coercion, or if it breaches substantive legal requirements. These obligations have not been extended to offences committed outside of EU borders on behalf of EU companies, however individual member states are able to choose to do this.
The penalties for conducting an activity will range from prison sentences for individuals, to exclusions from access to public funds for companies. Member states can choose whether to introduce fines for companies based on a proportion of their turnover (up to 5% depending on the crime) or fixed amounts of up to £35m. Virginijus Sinkevičius, the EU commissioner for environment, oceans, and fisheries, said environmental crimes were serious, lucrative and on the rise. Annual revenues from the illegal waste market in the EU, for example, ranged between €4 and €15bn.
Jojo Mehta, the co-founder, and executive director of Stop Ecocide International, states that this law would help member states take environmental harm much more seriously. ‘This is a highly significant and to be commended, European states will not be long in engaging more deeply with it in their own jurisdictions’.
Of course, this does not apply to the UK. However, it is interesting to see many bodies and states bringing in more criminalisation to wide-scale environmental damage, and it is uncertain as to whether the UK as a previous member of the European Union will follow in its footsteps within it’s own laws.