Environmental Law Quarterly Update Q1 - 2022

8 April 2022

This quarterly environmental law update provides a summary of news stories in the period January 2022 – March 2022.

January

CMA reviews environmental claims in fashion retail

The CMA announced on 10 January 2022 that it had launched its review of environmental claims in the fashion retail sector. As discussed in our Q3 2021 update here, the CMA have already published a ‘Green Claims Code’ which helps businesses check their claims are ‘genuinely green’. The CMA’s current review will examine claims to assess whether or not businesses are complying with consumer protection law and, where there is evidence of ‘greenwashing’, the CMA says it will take ‘appropriate action’. It has been reported that the CMA would “name the companies it considers to be the worst offenders, as an example to the rest of the industry, and ask them to make changes. If they do not make changes to their advertising, they could be taken to court”.

 

Northumbrian Water fined £240,000 for polluting a watercourse in County Durham

On 19 January 2022, Northumbrian Water appeared at Newcastle Crown Court for sentencing after pleading guilty to two offences of polluting Coundon Burn. The court heard that sewage poured out of a manhole for two days in March 2017 contaminating the burn and a stretch of the River Gaunless. The sentencing judge found that the company was negligent in that no preventative measures had been put in place, though credit was given for the remedial steps the company had taken since the incident happened. Northumbrian Water were fined £240,000 and ordered to pay costs of more than £34,000. This conviction follows Northumbrian Water’s October 2021 fine of £540,000, as reported in our 2021 Q4 update here.

 

Government unveils tough plans to tackle fly-tipping and illegal waste exports  

Environment Minister Jo Churchill announced new government plans to reform the waste industry and tackle waste crime. The reforms include moving to a permit-based system (which encompasses a technical competence element) for carriers, brokers and dealers (“CBD”) businesses and the introduction of mandatory digital waste tracking. In practise the latter means exporters will need to provide information on the proposed export of waste before it leaves the UK, including where it is being sent to. It is hoped that this will enable regulators to detect illegal activity more quickly and to take appropriate interventionist action before the exports take place. The government is consulting on both new proposed measures (see here and here), with the deadline for responses set for 15 April 2022.

 

UK climate risk assessment

On 17 January the UK government published its third five-year climate change risk assessment, as required by the Climate Change Act 2008. The report found that the UK had to do more to build climate change resilience, with risks likely to develop across several sectors if action was not taken. For example, the report concluded that annual damages caused by flooding for non-residential properties could increase by 27% by 2050 and 40% by 2080 in a warming scenario of 2°C by 2100. It was reported that the likely costs of taking no action could exceed £1 billion per year by 2050.

 

February

YORKSHIRE WATER PAYS YORKSHIRE WILDLIFE TRUST £300,000 IN AN ENFORCEMENT UNDERTAKING

Yorkshire Water  agreed to pay £300,000 to the Yorkshire Wildlife Trust  under the terms of an Enforcement Undertaking after an “unauthorised” sewage discharge in 2018. The company breached its environmental permit when an automated valve system failed to open and caused rainwater and wastewater to discharge into a nearby water source. The Environment Agency commented on 15 February: “Enforcement Undertakings are an effective enforcement option to allow companies to put things right and contribute to environmental improvements. This payment of £300,000 to Yorkshire Wildlife Trust will bring great benefits to nature reserves in the local area”.

 

Environment Agency succeeds in Walleys Quarry appeal

On 17 January 2022, the Court of Appeal in R (Richards) v Environment Agency Case [2022] EWCA Civ 26 overturned a declaration granted by Fordham J in the High Court ([2021] EWHC 2501 (Admin)) requiring the Environment Agency (“EA”) to take specific actions to reduce emissions of hydrogen sulphide by a regulated landfill site. A judicial review claim had been issued on behalf of the respondent, a six year old boy who suffered from significant lung problems, including bronchopulmonary dysplasia, in relation to emissions from the regulated site, Walleys Quarry Limited. There was a concern that if the hydrogen sulphide emissions were not reduced soon, the respondent would be at risk of developing Chronic Obstructive Pulmonary Disease (“COPD”) which would dramatically reduce his life expectancy. The claim alleged that the EA had failed to take all reasonable steps to reduce emission levels, in breach of its positive obligations under Article 2 and Article 3 of the European Convention on Human Rights (“ECHR”). At first instance Fordham J did not find that the EA had acted unlawfully but did grant a declaration which required the EA to take specific actions in order to comply with its legal obligations. On appeal the court set aside this declaration as neither justified nor necessary as there was no actual or proposed unlawfulness which called for a remedy. The court explained that under the Human Rights Act 1998, the court’s role was simply to decide if a claim had been made out and, if so, the appropriate remedy.  

 

March

Legal Action launched in response to damage of the River Lugg

Following an investigation launched in December 2020, Natural England and the Environment Agency announced it had initiated legal action against a landowner for the damage caused to a protected area of River Lugg in Herefordshire. It is alleged that over a period of time the landowner carried out unauthorised dredging (as a Site of Special Scientific Interest (SSSI), any work taking place in the area required permission) and work which changed the shape of the riverbank. It is said that these works caused a discharge of silt into the River Lugg and destroyed the river’s natural habitat.

 

UN Environment Resolution endorsed

On 2 March 2022 the United Nations Environment Assembly (UNEA) endorsed a resolution which called for an end to plastic pollution. The resolution established an Intergovernmental Negotiating Committee (INC) who will work towards creating a legally binding international agreement by 2024 on plastic pollution. It is anticipated that the treaty will promote the sustainable production and consumption of plastics, encourage stakeholders, including the private sector, to promote cooperative measures to reduce plastic pollution and promote research and the development of sustainable, affordable, innovative and cost-effective approaches to achieve these aims.

 

Environment Agency secures confiscation orders

In March 2022 it was reported that the Environment Agency had secured confiscation orders of just under £400,000 against two individuals who had been involved in submitting fictitious claims for the recycling of approximately 10,600 tonnes of electronic waste. Jamil Rehman, the sole director of Electronic Waste Specialists Ltd pleaded guilty to one charge of fraudulent trading and his brother, Saleem Rehman, pleaded guilty to one charge of theft from the company. The court determined Jamil had benefitted to a sum of just over £1.48m with an available amount of £295,965.97, whilst Saleem had benefitted to a sum of £100,000 – also determined to be the available amount.

 

Ofwat announces investigation into sewage treatment works

As reported in our Q4 2021 update, in November 2021 the Environment Agency and Ofwat launched an investigation into the illegal dumping of raw sewage into rivers and coastal waters by water companies. On 9 March 2022 Ofwat announced, as a result of this investigation, it had started enforcement action against Anglian Water, Northumbrian Water, Thames Water, Wessex Water and Yorkshire Water regarding their sewage treatment works. The affected water companies have been issued with formal notices requesting further information for enforcement purposes. 

 

Further information

For further information on the issues raised in this blog post, please contact a member of our Health, Safety & Environment team.

 

About the author

Sophie Wood is a Senior Associate in the Criminal Litigation team with extensive experience in advising corporate and individual clients involved in a wide range of internal, criminal and regulatory investigations. Sophie has acted for individuals and companies involved in investigations brought by the Environment Agency, Health and Safety Executive and local authorities, and is a member of the firm’s cross-practice Health, Safety and Environment Group.

 

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