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Environmental weekly news round up – 19th April 2024

Welcome to the latest edition of our weekly Environment Law news update. As ever, we bring you developments, insights, and analysis in the world of environmental law. 


Newcastle-under-Lyme Borough Council takes legal action against Walleys Quarry

The Newcastle-under-Lyme Borough Council has announced its intention to take legal action against Walleys Quarry Ltd, a subsidiary of Red Industries Ltd. The move comes in response to the company’s alleged failure to comply with an abatement notice, which required the operator to control the odour nuisance from Walleys Quarry, which is used as a landfill site.

The quarry has been a subject of controversy for some years, with residents and environmental groups raising concerns about foul odours emanating from the site. These complaints have led to multiple legal and regulatory actions against the operator, including the abatement notice which became enforceable in March 2023.

In a formal press release, the council announced they found the operator to be non-compliant with the abatement notice. The council has been closely monitoring the situation, gathering evidence of the operator’s non-compliance and believes there are sufficient grounds for legal action.

Another relevant development was last month’s suspension notice by the Environment Agency (“EA”), which followed an increase in odour from the site. However, this suspension notice was later withdrawn as the EA was satisfied with the steps required under the notice.


Waste packaging breaches: Luxury perfume brand makes payment to local wildlife charity

A British luxury perfume distributer, the Orange Square Company Ltd, have been found to have broken the rules on recovering and recycling waste and made an enforcement undertaking payment of over £7,000. 

The EA found the company had not registered the packaging waste it produced for over a four-year period and missed more than £7,000 in payments to the scheme, meaning they had failed to meet the requirements of the Producer Responsibility Obligations (Packaging Waste) Regulations 2007.

Any company with a turnover in excess of £2 million and that has handled more than 50 tonnes of packaging in the previous year is required, under the Regulations, to register with an accredited compliance scheme and recover and recycle packaging waste. 

However, rather than pursuing prosecution, the EA have accepted payment of an enforcement undertaking for £7,100 to the Surrey Wildlife Trust. Enforcement undertakings are proposed by those who breach environmental regulations and, if accepted, are legally binding. Enforcement undertakings seek to restore the position so far as possible to what it would have been had the offence not been committed or secure an equivalent benefit or improvement for the environment, where the harm cannot be restored. 

In this instance, the financial benefit Orange Square Company Ltd received by failing to meet their requirements has been paid to a local wildlife charity to improve habitats and make areas more resilient to wildfires.


High Court set to review the UK’s Climate Adaptation Plan

Friends of the Earth, along with two individuals have filed a legal challenge against the current National Adaptation Plan 3 (“NAP3”) on the ground of illegality arguing that it breaches the Climate Change Act 2008. 

The Climate Change Act 2008 sets legally binding targets to reduce carbon dioxide emissions in the UK by at least 80% by 2050 from 1990 levels. Under the Act, the Government is required to submit a National Adaptation Programme every five years outlining the actions they will take during this five-year window to adapt to the impact of climate change and to meet their emission reduction targets. The NAP3 sets out the key actions for 2023 to 2028. 

The Claimants are arguing that NAP3 fails to set out lawful adaption objectives and fails to consider and publish an assessment of the risks to delivery of the plans and policies included.

Local campaigner and individual Claimant Kevin Jones was made homeless shortly before Christmas 2023 after his house in Norfolk was demolished after coastal erosion put it in danger of falling into the sea. The second individual Claimant, disability activist Doug Paulley, has a number of health conditions which are being exacerbated by the increase in summer temperatures that are putting him at increased risk of serious harm. 

High Court judge Justice Sheldon emphasised that the issues raised by the Claimants are of “considerable public importance.”

The hearing is set to take place over two days between 18 – 19 June later this year. 


Rights vs. Warming: ECHR Decision Empowers Climate Litigants Across Europe

In a landmark decision on 9th April the European Court of Human Rights (“ECHR”) has established a groundbreaking legal precedent with its ruling in favour of a group of Swiss women, affirming the necessity for nations to intensify their efforts in combating climate change to safeguard human rights. This decision signifies a crucial turn in the battles against climate inaction, offering a glimmer of hope and a potential roadmap for future climate change litigation.

The case initiated by the group KlimaSeniorinnen Schweiz, consisting of women with an average age of 74, argued that older women are disproportionately affected by escalating heatwaves resulting from climate change. After an arduous 8-year legal journey, the court sided with the Swiss seniors, stating that Switzerland had not met its obligations in reducing greenhouse gas emissions, thereby violating the rights to life and well-being as stipulated by the European Convention on Human Rights.

This verdict is notable not only for its immediate implications for Switzerland but also for setting a legal benchmark that could shape climate litigation across Europe and potentially beyond. The ECHR’s decision underscores the concept that climate change is not merely an environmental issue but a profound human rights crisis, requiring states to undertake more aggressive measures to mitigate its effects.

The ruling is a significant victory for climate activists who have increasingly turned to the courts to compel governments to adhere to more stringent climate policies. It illustrates a growing recognition of the legal obligations that nations have towards their citizens in the context of climate change, echoing similar sentiments from courts around the world, including a notable decision in Montana USA, where state agencies were found to be violating constitutional rights by allowing fossil fuel development. 

While the ECHR did not prescribe specific actions for the Swiss government, emphasising the importance of democratic decision-making in determining the course of action, the ruling nevertheless mandates Switzerland to align its climate policies more closely with scientific recommendations. This aspect of the decision highlights a deference to national policy-making processes but within the context of an overarching obligation to protect citizens from the adverse effects of climate change.

Switzerland’s response to the ruling is yet to be fully outlined but the decision is expected to compel a re-evaluation of its climate polices. The Swiss government’s efforts to curb emissions, including a failed referendum on an amendment to its CO2 Act and a subsequent approval of measures to shift towards green energy alternatives, underscore the complexities of democratically enacting robust climate policies.

As countries grapple with the challenges of meeting the Paris Agreement targets and ensuring global warming does not exceed 1.5 degrees Celsius above pre-industrial levels, this decision reaffirms the role of legal systems in holding governments accountable and ensuring that human rights are at the forefront of the climate crisis response.

In summary the ECHR’s decision is likely to catalyse an increase in climate change litigation efforts grounded in human rights arguments. It also serves as a call to action for governments to acknowledge and institutionalise the right to a clean and healthy environment within their legal and policy frameworks. The ruling represents a significant step forward in intertwining human rights protections with environmental sustainability efforts potentially influencing a broader recognition of environmental rights.


Mark Spencer MP Takes Action: A Break on Incinerator Permits

In his role as Minister of State for Food, Farming and Fisheries, Mark Spencer MP has written a letter to the chief executive of the Environment Agency (“EA”) directing a temporary pause in the determination of environmental permits for all new incineration facilities, including Energy from Waste and Advanced Thermal Treatment. 

The ministerial direction was made under regulation 62 of the Environmental Permitting (England and Wales) Regulations 2016 and does not apply to “permits for hazardous or clinical waste incineration facilities, small waste incineration plants, incinerators seeking a permit variation for an existing environmental permit, significant permit variations for incinerators seeking to develop carbon capture and storage provision, or facilities whose primary purpose is the recycling of materials”. 

The pause is due to last until 24 May, but could be withdrawn earlier, while DEFRA officials consider the role of waste incineration in the management of residual wastes in England. The pause follows similar moves in Scotland and Wales. 

Spencer says in his letter the direction has been made due to concerns he has “with regard to further expanding England’s waste incineration capacity, and the risks this poses to our objectives and environmental obligations”. 

However, the decision has been met with criticism from Labour who have concerns over the role environment secretary, Steve Barclay, has had in the decision. The pause will mean the controversial Wisbech incinerator in Barclay’s constituency will not yet be able to receive its environmental permit. However, DEFRA have said Barclay was not involved in the decision-making process for this temporary pause.


Manchester company and director fined over £870,000 for illegal waste exports

At a sentencing hearing on 27 March 2024 at Manchester Crown Court, Roydon Resource Recovery Ltd and one of its directors were convicted of illegally exporting waste and for disregarding proper management protocols. 

The prosecutions came after 10 shipping containers containing 247 tonnes of refuse were unlawfully exported to Poland. The company claimed the export was legal under the green list process which permits a company to ship waste from one country to another without a permit provided certain conditions are met. 

The company claimed the conditions were met by shipping clean plastics sorted from household waste, when in fact the waste contained mainly plastics which were unsuitable for recycling and was also heavily contaminated with other household items such as electricals, nappies, and oil cannisters. 

The company was ordered to pay a fine of nearly £870,000 and the company director was also ordered to pay a further £10,000. The fine also included a £811,181 payment under the Proceeds of Crime Act. 

The Proceeds of Crime Act is increasingly being used by the EA as part of prosecutions against those who commit waste crimes. This year, the EA launched a new Economic Crime Unit to tackle money laundering and carry out financial investigations with new powers to recover illegally gained profits including the freezing of accounts and seizing of cash. 

In 2023, 52 prosecutions were brought by the EA for waste crimes with more than £400,000 secured in fines. 


More efforts are required to meet targets for residual waste management 

An increase in household residual waste by 0.7% from 2019 to 2022 has been reported, with more waste being sent to incineration. 

The Environmental Targets (Residual Waste) (England) Regulations 2022 established a long-term target to limit residual waste to 287 kg per person by 2042. Additionally, the 2023 Environmental Improvement Plan set interim targets for 2028.

Despite a 2.8% decrease in residual waste since 2019, the 2022 figure stands at 558.8 kg per person, far from the target. The Office for Environmental Protection has expressed concerns that existing policies may not suffice to meet these targets.

Between 2019 and 2022, there was a slight decrease in municipal residual waste per material type, with food waste being the largest contributor. The total residual waste, excluding major mineral wastes, was 31.9 million tonnes in 2022, a 1.3% decrease since 2019.

Landfill waste per person decreased by 4.7% since 2019, while waste sent to incineration rose by 7%. The proportion of residual waste sent to incineration was 54.9% in 2022, and 40.6% went to landfill.

The interim target for 2028 is to reduce municipal residual waste to 333 kg per person. In 2022, the figure was 464.8 kg per person, indicating a need for significant reduction efforts.

DEFRA acknowledged the need to reduce landfill and incineration waste and highlighted the progress made towards the targets. They emphasized ongoing reforms to improve resource use, boost recycling, and eliminate avoidable waste.

The above shows the challenges that England faces in managing residual waste and the urgency to adopt more effective measures to achieve a sustainable waste management system.