Environmental Law Quarterly Update - Q1 2021
This quarterly environmental law update provides a summary of a cross-section of news stories in the period April 2021 - June 2021.
On 1 April 2021 the Environment Agency reported it had successfully prosecuted two directors for operating a regulated facility without a permit. The prosecution concerned the storing and treatment of waste wood in excess of the 500 tonne limit allowed by their permitted waste exemption. Prior to the criminal investigation being launched, the site was apparently visited by the Environment Agency on a number of occasions but remedial action to bring the operation within the accepted exemption limit was not completed. One director was ordered to pay a total of £50,000 – comprising of a £4,000 fine, £30,000 in compensation and a contribution towards prosecution costs of £16,000. The other director was sentenced to a conditional discharge of two years and a five year disqualification from acting as a director. A third director was acquitted.
On 7 April 2021 the Pensions Regulator published its climate change strategy. This sets out its key objectives and regulatory strategy in relation to the requirements that apply to occupational pension schemes concerning climate change risk in light of the Pension Schemes Act 2021.
On 8 April 2021 it was reported that Mark Foley had been jailed for 2 years and 3 months for illegally disposing of 100,000 tonnes of waste at a former quarry in 2016. The court described the act as one of the most serious risks of harm to the country in the past 30 years, with samples analysed by the investigators having established that around half were hazardous and either carcinogenic or ecotoxic. Mr Foley was also sentenced to an additional 18 weeks’ imprisonment to be served concurrently for supplying false information to the Environment Agency and his Company, M E Foley (Contractors) Ltd, was fined £72,000 for failing to provide the court with company accounts. Further defendants in the case will be sentenced in July at Bristol Crown Court with confiscation proceedings to follow.
On 8 April 2021 the Department for Business, Energy and Industrial Strategy (BEIS) and the Department for Environment, Food and Rural Affairs (Defra) published the government’s response to their July 2019 call for evidence on standards for biodegradable, compostable and bio-based plastics. This response recognised that further evidence and research was needed on the environmental impacts of these new types of plastics. The government also affirmed that it is progressing with policy proposals including consultations on extended producer responsibility for packaging and that it is minded to ban oxo-degradeable plastics. This type of plastic will be banned in the EU from July 2021.
A father and son were sentenced to a six months suspended sentence and eight months’ imprisonment (with a £40,000 fine) respectively after pleading guilty to eight offences under the Environmental Protection Act 1990. The Environment Agency prosecuted the two after they failed, despite letters and visits from investigators, to cease storing and illegally burning waste on their farm. Costs were also awarded of £14,925 and £15,122.45.
On 19 April 2021 the FCA announced the appointment of Sacha Sadan as its new Director of Environment Social and Governance (ESG). This role, which is increasingly prevalent across various business sectors, will consider environmentally and socially responsible factors in operational and investment decision-making processes with Mr Sadan developing the FCA's approach to sustainable finance domestically and internationally. This means supporting the mobilisation of private capital towards environmentally sustainable investments as part of global efforts to transition to a green economy. ESG reporting has been a key area of focus of late, with the EU’s Sustainable Finance Disclosures Regulation (“SFDR”) applicable from 10 March 2021. Whilst not implemented into UK law, the government has stated its intention to introduce climate-related financial disclosure requirements across the economy by 2025.
On 19 April 2021, the Interim Environmental Governance Secretariat (IEGS) published its first report on complaints it had received between 1 January and 31 March 2021 regarding alleged breaches of environmental law by public authorities in England and Northern Ireland. The complaints, which named 17 different public authorities, related to nature conservation, environmental monitoring and assessment, pollution control and waste and resources.
The government announced on 20 April 2021 that it would legislate for a reduction in emissions of 78% by 2035. This rate of reduction is in keeping with recommendations in the sixth Carbon Budget of the Climate Change Committee, the UK’s independent advisory body on tackling climate change established under the Climate Change Act 2008. The new target will become enshrined in law by the end of June 2021.
A highly critical report published by the Salmon and Trout Conservation charity concluded that the Environment Agency had failed to protect rivers by not monitoring, inspecting and prosecuting enough. The report stated that the number of prosecutions conducted by the Environment Agency had reduced dramatically in recent years and particularly since 2012/2013. The report also stated that the rate of inspection by Environment Agency staff of regulated sites had reached low levels and that many water company sewage works had not been inspected in the previous decade since self-monitoring was introduced.
In the first week of May a multi-agency operation involving the Environment Agency, the British Transport Police, the Joint Unit for Waste Crime, Openreach, and Kent, Bedfordshire and Hertfordshire police forces conducted several inspections of metal and vehicle recycling businesses. Environment Agency officers identified nine waste metal sites which were operating illegally and pursued enforcement action to improve compliance with regulations. This initiative was described by Phil Davies, Joint Unit of Waste Crime Manager, as an example of how “agencies are targeting criminals who exploit the waste industry and harm the environment”.
On 17 May 2021 Greenpeace published a report which revealed plastic waste from the UK was being dumped illegally and burned in ten sites across southwest Turkey. This included packaging from major UK supermarkets, such as Lidl, M&S, Sainsbury’s and Tesco. Since China’s ban on the receipt of exported plastic waste in 2017, there has been a dramatic increase in the amount of plastic waste exported from the UK to Turkey, from 12,000 tonnes in 2016 to 210,000 in 2020. See our earlier article discussing the UK’s overseas waste trade here.
On 24 May 2021 the Environment Agency published guidance on how it regulates nuclear sites. The guidance details measures including: the use of environmental permits for nuclear sites, engaging in the assessment and design of new nuclear sites, regulating the decommissioning process of nuclear sites and monitoring radioactivity in the environment.
In a landmark ruling on 26 May 2021, the Hague District Court ordered Royal Dutch Shell to cut its carbon emissions by 45% in comparison to its 2019 levels. This is the first time a court has ordered a company to comply with CO2 emissions reduction targets under the Paris Agreement. The ruling comes in spite of Shell already adopting a relatively ambitious carbon reduction target of becoming a net-zero emissions energy company by 2050.
The claim was filed by seven NGOs who argued that Shell had breached Article 2 (right to life) and Article 8 (rights to private and family life and home) of the European Convention of Human Rights (ECHR). The ruling followed an earlier decision by the Supreme Court of the Netherlands in December 2019 which held that Articles 2 and 8 ECHR offer protection against the consequences of dangerous climate change due to CO2 emissions-induced global warming.
On 26 May 2021 Thames Water was fined £4 million and ordered to pay costs of £84,669 after pleading guilty to a offences under sections 33(1)(a) and 33(6) of the Environmental Protection Act 1990 (EPA 1990) and regulations 12(1)(b), 38(1)(a) and 38(2) of the Environmental Permitting (England and Wales) Regulations 2016 in respect of 79 million litres of untreated sewage escaping and overflowing into a park and a river in New Malden. An Environment Agency investigation found that fifty warning alarms over five hours on 8 February 2016, triggered by a power failure, were left unchecked which allowed the sewage to build up and flow above ground. It took nearly a month for the sludge to be cleaned up.
This latest conviction follows a series of pollution offences by Thames Water which saw the company receive fines of £2.3 million in March 2021, £2 million in July 2019, and a record breaking £20 million in March 2017 for releases of raw sewage.
River Action, an organisation focused on addressing river pollution in the UK, launched a public petition on 3 June 2021 calling for urgent government action to address the river pollution crisis. The petition cites data from the Environment Agency revealing that its ‘Environment and Business’ budget covering waste crime and incident response fell from £117 million in 2010/11 to £40 million in 2020/21. River Action cites the recent report by the Salmon and Trout Conservation (referred to above) on the dramatic fall in prosecutions in respect of river pollutions.
Following their meetings with the Central Bank Governors and Financial Stability Board (FSB) on 28 May 2021 and the Heads of the International Monetary Fund (IMF), World Bank Group, Organisation for Economic Cooperation and Development (OECD) and Eurogroup on 4 and 5 June 2021, the G7 Finance Ministers supported mandatory climate related financial reporting. Such reporting would be based on the Task Force on Climate-related Financial Disclosures (TCFD) framework for financial institutions and corporates to identify and report on climate-related risks. The joint communiqué released following the meeting anticipated further consultation, leading to the establishment of an International Sustainability Standards Board ahead of the UN Climate Change Conference (COP26) in November 2021.
At the meeting the Ministers also endorsed a new Taskforce on Nature-related Financial Disclosures, launched on 5 June 2021, to mirror the TCFD and focus on nature-related risks. Furthermore the G7 Minsters agreed to implement and strengthen company beneficial ownership registries in an effort to crack down on the proceeds of environmental crime offences such as trafficking wildlife and illegally logged timber.
On 17 June 2021 the Government issued its response to the Coroner’s Prevention of Future Deaths Report (‘the Report’), following the inquest into the tragic death of Ella Kissi-Debrah in 2013. The Coroner had concluded that Ella had “died of asthma contributed to by exposure to excessive air pollution” and listed “air pollution exposure” as a medical cause of death. The Report called for the government to act in response to various “matters of concern” identified as: the national limits for particulate matter being higher than the WHO’s guidelines, a lack of public awareness about local and national pollution levels, and the health impacts of air pollution not being adequately communicated to patients by medical professionals. The Government’s response states that action will be taken to increase public awareness around air pollution, work will be targeted towards controlling and reducing the risk of asthma attacks, as well as an additional £6 million being added to the funding pot for local authorities as part of the Air quality grant scheme. The government also states that a consultation on particulate matter limits will be launched early next year with a view to setting new targets in legislation by October 2022.
On 28 June 2021 the Financial Action Task Force (FATF) published a report highlighting the role of trade-based fraud and the use of shell and front companies to launder the proceeds of environmental crimes such as illegal logging, mining and waste trafficking. The report explained how criminals frequently blend legal and illegal activities early on in the supply chain to conceal illicit sources and make it difficult to detect suspicious financial flows. FAFT have called for countries to focus on environmental offences and their potential to disguise proceeds of crime. It also asked for better working relationships to be established between domestic and international anti-money laundering authorities, environmental crime investigators and environmental protection agencies to enhance dialogue and combat this issue. Finally it emphasised that those within the private sector also have an important role in identifying and preventing the proceeds of crime linked to environmental offences.
For further information on the issues raised in this blog post, please contact a member of our Health, Safety & Environment team.
Nicola Finnerty is a Partner in our Criminal Litigation team and a leading expert in white collar and business crime, proceeds of crime & asset forfeiture. Over the last 25 years she has been involved in many of the most high-profile, complex criminal and regulatory investigations and prosecutions, both in the UK and in matters which span multiple jurisdictions. Her expertise includes money laundering, fraud & bribery and corruption along with being regularly consulted by individuals and institutions in the regulated sector in respect of the Money Laundering Regulations 2017. Nicola represents high net worth individuals, multi nation corporate clients, financial institutions and professional firms in investigations and proceedings brought by UK enforcement agencies.
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.
Charlie Roe is a trainee solicitor. He is currently in his fourth seat in the Criminal Litigation team, after having spent his first seat in the Regulatory team, his second seat in the Employment team and his third seat in the Public Law team.
Senior Associate (Barrister)
On 20 July 2021 Vue Entertainment Ltd (‘Vue’) was fined £750,000 and ordered to pay costs of £130,000 following a fatal accident at the Star City cinema in Birmingham on 9 March 2018.
On 9 July 2021 Southern Water Services Ltd (SWS) was fined £90 million, to be paid out of company operating profits, in what was the largest fine ever imposed on a water company.
This quarterly environmental law update provides a summary of a cross-section of news stories in the period April 2021 - June 2021.
The recent case of R v Wood Limited Treatment highlights the problems faced by prosecution authorities in proving causation for the purposes of establishing criminal liability for corporate manslaughter.
This quarterly environmental law update provides a summary of a cross section of news stories in the period Jan 2021 - March 2021.
In late February 2021 a news article reported that a care home worker had been arrested on suspicion of gross negligence manslaughter after a patient died of COVID-19. In late March 2021, two further care home workers were arrested on suspicion of wilful neglect. We look at how those working in care homes can potentially face criminal liability in respect of COVID-19 cases.
Thames Water was sentenced on Friday 26 February 2021 to a fine of £2.3m and ordered to pay costs of almost £90,000. The case is noteworthy both because of the level of the fine imposed and because the Environment Agency (“EA”) uses criminal prosecutions as a means of enforcement relatively rarely.
On 4 November 2020, the Food Standards Agency (“FSA”) launched a consultation seeking views on proposed changes to the offences for non-compliance under the Materials and Articles in Contact with Food (England) Regulations 2012 (the “Regulations”).
On 28 October 2020 the Environment Agency (“EA”) announced that a consignment of 21 waste containers, which were illegally shipped to Sri Lanka in 2017, had been successfully returned to their point of origin in the UK.
Sentinel Health Care Limited has pleaded guilty to two charges of failing to provide safe care and treatment, resulting in avoidable harm, to resident Andrew Clegg and a further charge of failing to provide safe care and treatment exposing other service users, to a significant risk of avoidable harm.
On 29 September 2020 it was announced that the Ministry of Defence (“MoD”) had accepted a Crown Censure from the Health and Safety Executive (“HSE”) after a 26 year old marine died during a training exercise.
Brother and sister Mark and Rachel Penfold were directors of a waste management company. In February 2016 an employee of the business suffered a serious injury when his arm was caught in a conveyer he was operating whilst at work. The Health and Safety Executive prosecuted the company and both individuals under the Provision and Use of Work Equipment Regulations 1998 (PUWER).
The Environment Agency’s (“EA”) 2 October 2020 annual report provides sober reading for the nine water and waste service companies operating in England. After the 2019 report’s finding that performance across the sector was already ‘unacceptable’, the 2020 report concluded that all, without exception, had continued to deteriorate.
On 1 October, the Fire Safety Bill had its second reading and debate in the House of Lords. The Bill is short but introduces important new measures.
West Midlands Police have announced that Alutrade Limited, a specialist recycler of aluminium, is to be charged with corporate manslaughter over the death of Stuart Towns in July 2017. The last conviction of a company for corporate manslaughter was in 2017.
The Secretary of State for Business, Energy and Industrial Strategy (“BEIS”), Alok Sharma, announced this week that non-essential shops will be allowed to open from 15 June. Mr Sharma also stated that if shops do not follow COVID-secure guidelines they could be subject to enforcement notices. What does this mean?
As we move through the phased easing of lockdown, employers and employees will be anxious to ensure that the return to the workplace does not exacerbate the risk of infection. Businesses do not want to find themselves falling foul of the law, and with news last month that the Health and Safety Executive (“HSE” – the body responsible for regulating and enforcing health and safety legislation) has been bolstered with £14m extra funding, it is more important than ever to manage the risks.
It is just over two years since the publication of Dame Hackitt’s Independent Review of Building Regulations and Fire Safety. Following the Grenfell Tower fire in June 2017, the Government commissioned a report to make recommendations on the regulatory system covering high rise and complex buildings.
The sad news on Monday evening that one of the world’s iconic historical buildings was engulfed in flames caused many to question whether other historical buildings around the world are vulnerable to the same fate.
At the end of 2017, the Justice Committee published its report on the Sentencing Council’s draft guidelines on manslaughter.
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