Environmental Law Quarterly Update - Q3 & Q4 2022

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

JULY

KLM SUED FOR “GREENWASHING”

“Greenwashing” refers to a marketing or advertising strategy where companies or organisations misleadingly present themselves as environmentally responsible.

A Dutch environmental group Fossielvrij NL is suing the Dutch airline KLM, alleging that the company’s adverts regarding their sustainability initiatives, are misleading.

KLM has recently undertaken various initiatives to create what they call “a more sustainable future”. This led to the creation of CO2Zero, a voluntary CO2 compensation service which purports to enable passengers to contribute to reducing their flight-related carbon emission.

They have also stated in adverts that they “Fly Responsible”.

Fossielvrij NL contest that CO2Zero does nothing to limit damage to the environment and the company’s adverts give the false impression that the flights won’t affect climate change. The group also states that this is a breach of EU consumer rules.

GOVERNMENT TO UPDATE NET ZERO GREENHOUSE GAS TARGET FOLLOWING SUCCESSFUL COURT APPEAL

The UK national environmental group “Friends of the Earth”, the environmental charity ClientEarth and the non-profit campaign organisation The Good Law Project applied for Judicial Review of the Government’s Net Zero Strategy (“NZS”). This Strategy was born out of the government’s obligations under the Climate Change Act 2008 (“CCA 08”) to reach net zero greenhouse gas emissions by 2050.

They claimed that the Secretary of State for Business, Energy and Industrial Strategy was in breach of the following:

1. Section 13 of the CCA 08 as the NZS would not enable the government to meet the targets set out in the act, and there were insufficiencies in the briefing material;
2. Section 14 of the CCA 08 as the Secretary of State for Business, Energy and Industrial Strategy failed to include information legally required to discharge their reporting obligations; and
3. Section 3 of the Human Rights Act 1998, with regard to how the above two sections of the CCA 08 should be interpreted.

In a recent decision R (Friends of the Earth and others) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin), the claimants were successful on grounds 1 and 2 but only to the extent set out in the judgment. It was held that the Secretary of State had not sufficiently adhered to the reporting obligations under the Act and the material they presented to Parliament was insufficient.

The government will now have to provide additional information in order to comply with its obligations under the Act, and provide a further indication of how they intend to achieve their targets.

UNITED NATIONS RECOGNISE CLEAN AND HEALTH ENVIRONMENT AS UNIVERSAL HUMAN RIGHT

On 28 July 2022, the United Nations (“UN”) General Assembly passed a resolution declaring access to a clean, healthy and sustainable environment, a universal human right.

This resolution was passed with 161 votes in favour and eight abstentions.

The resolution, originally presented by Costa Rica, the Maldives, Morocco, Slovenia and Switzerland in June 2021, was subsequently co-sponsored by over 100 countries.

The resolution was passed in a move to encourage countries, international organisations and business enterprises to double down on their efforts in implementing their environmental and human rights obligations and commitments.

It also recognises the negative consequences and implications of climate change and environmental damage.

 

AUGUST

BIRD FLU RESTRICTIONS IN PLACE IN DEVON

On 31 August 2022, an Avian Influenza Prevention Zone was put in place across Devon and Cornwall. This meant that it was a legal requirement for all bird keepers in Devon and parts of Somerset to follow strict biosecurity measures. This was to ensure that their flocks were protected. They must also restrict access to their sites for non-essential people and workers will need to take a number of safety measures whilst entering the sites.

This measure was put in place following a number of detections of avian influenza in poultry and wild and captive birds across Devon and parts of Somerset. Since October 2021, the UK has been experiencing its largest ever bird flu outbreak.

UK CRITICISED FOR DUMPING SEWAGE IN CHANNEL

The UK has come under criticism by French Euro MPs for disregarding EU environmental rules and releasing raw sewage into the Channel and the North Sea. The three French Euro MPs have called upon the European Commission to put in place political and legal measures to stop the pollution.

Although the UK is no longer bound by EU rules, it has signed a commerce and cooperation agreement as part of the withdrawal treaty and is a signatory to the United Nations Convention on maritime rights. The European Commission has also claimed that the UK could be in breach of the Brexit deal through the dumping of sewage in the Channel and North Sea.

 

SEPTEMBER

SINGLE-USE PLASTIC BILL INTRODUCED IN WALES

On 20 September 2022, Julie James MS, the Welsh Minister for Climate Change, introduced The Environmental Protection (Single-use Plastic Products) (Wales) Bill to the Welsh Parliament.

Under this new law, it would become a criminal offence for a person to supply or offer to supply (including for free), a number of products referred to as “commonly littered and unnecessary disposable single-use plastic products”. This includes plates, cutlery, drinking straws, and plastic single-use carrier bags.

A first draft of the law was published in August 2022, and it is now in stage 1 before the Welsh Parliament, although the timetable for scrutiny is yet to be agreed.

HIGH COURT RULES EU NATURE CONSERVATION LAWS STILL ENFORCEABLE

The High Court ruled on 6 September 2022 that key European nature conversation laws remain enforceable against the Environment Agency, despite Brexit.

The case involved Mr and Mrs Harris, who claimed that the Environment Agency had breached the EU Habitat Directive for failing to protect rare wetland species and habitats of international importance in the Norfolk Broads from the impacts of water abstraction. These particular areas were licenced by the Environment Agency for agricultural and other purposes.

In its ruling (Harris v the Environment Agency [2022] EWHC 2264 (Admin)), the court found that the Environment Agency had breached both UK and European laws by irrationally limiting its investigation to three sites in the Norfolk Broads, when a much wider area could potentially be impacted. It was also ruled that the Environment Agency must take the appropriate steps to ensure that there is no possibility of deterioration of the protected habitats. 

This case also enabled the court to apply a provision in the UK’s EU-exit legislation, which states that although the UK has left the EU, any obligations recognised and available in domestic law by virtue of section 2(1) of the European Communities Act 1972 and enforced accordingly prior to 31 December 2020, will continue on to be recognised and be available in domestic law. This means that as the Habitats Directive was found by a court to be directly enforceable against public authorities prior to Brexit, it remains applicable to this day. 

HIGH COURT GRANTS INJUNCTION TO HS2

HS2 is the controversial planned high-speed railway line which is due to begin construction in 2029 throughout the UK.

On 20 September 2022, the High Court granted an injunction to High Speed 2 (“HS2”). This historically wide injunction will prevent protesters from accessing hundreds of miles of land earmarked for the routes. HS2 claimed that the protesters had committed offences of trespass and nuisance, and had already disrupted the construction of the route. Many environmental activists provided evidence in opposition to the injunction; however, Mr Justice Knowles deemed that “the risk of trespass and nuisance will continue unless restrained”.  

The injunction will remain in place until 31 May 2023.

GOVERNMENT “INVESTMENT ZONES” POSE THREAT TO ENVIRONMENT LAWS

As part of its “mini-budget” in September 2022, the government announced the creation of 38 “investment zones” across England, which intend to loosen planning rules and enable more land to be released for commercial use and housing.

A number of environmental groups have raised concerns about these plans as they would mean the removal of up to 570 of the UK’s environmental protections. This would include EU regulations such as the Habitat Regulations. A number of critics view this as the government reneging on its commitment to half the decline of biodiversity in England by 2030.

ADVOCATES FOR ANIMALS BRINGS FRANKENCHICKENS CASE

The UK’s first animal law firm, Advocates for Animals, has bought a case on behalf of the animal welfare charity Humane League UK regarding so-called “Frankenchickens”.

Frankenchickens are fast-growing chicken breeds such as the Ross 308. This particular breed has been created so that the chickens will reach their kill weight in just 35 days. A number of retailers across the UK and Europe have already signed up to the “Better Chicken Commitment”, which is an initiative to phase out the use of fast-growing breeds such as the Ross 308, but this case is a step further towards the prevention of the use of these breeds.

Advocates for Animals claim that these breeds breach the Welfare of Farmed Animals (England) Regulations 2007, and in particular the fact that it states animals can only be farmed if “they can be kept without any detrimental effect on their health or welfare”.

SOUTH WEST WATER FINED FOR SUPPLYING WATER “UNFIT FOR HUMAN CONSUMPTION”

Following a prosecution bought by the Drinking Inspectorate, South West Water was ordered to pay approximately £300,000 in fines and costs for supplying water deemed unfit for human consumption by the Drinking Water Inspectorate.

The company admitted to the offence during a hearing at Plymouth Magistrates Court. They said that this was due to an incident in 2018 where there was an algal bloom on the reservoir, which was caused in part by an unusually dry and hot summer.

 

OCTOBER

INCREASED FINES FOR WATER COMPANIES THAT CAUSE POLLUTION

On 3 October 2022, the Environment Secretary, Ranil Jayawardena, announced his intention to bring forward a proposal to raise the civil penalty for water companies that pollute the environment from £250,000 to up to £250 million.

The current limit for civil sanctions which can be imposed directly by the Environment Agency is £250,000. This massive increase comes following the Environment Secretary’s push for water companies to invest in improving environmental performance and infrastructure. The Environment Agency, Ofwat and the Government are all driving for water companies to take increased accountability for pollution incidents, and this proposal may be the way to ensure they take effective steps to tackle their environmental sustainability.

ENVIRONMENTAL AGENCY TARGETS “WASTE CRIMINALS” IN LINCOLNSHIRE

On 11 October 2022, the Environmental Agency as well as a number of other agencies including local police and councils, joined together in an operation to target illegal waste activities in Lincolnshire.

The operation, aptly named Operation Clean Sweep, involved police officers disrupting the activities of those they believed to be involved in illegal waste activities by stop-checking vehicles, visiting sites and gathering evidence to use in their investigations.

As a result of this operation, four Fixed Penalty Notices were issued on the day to unlicensed waste carriers, four prohibition notices were issued by Lincolnshire Police and the DVSA and one further enforcement action will be taken.

BARSNLEY LANDOWNER FINED £5,000 FOR FAILING IN DUTY OF CARE

The Environment Agency announced on 24 October 2022 that it had fined a Barnsley landowner over £5,000 for failing in her duty of care by fly-tipping in a layby and not maintaining accurate records of her waste disposal.

In October 2020, following an investigation and inspection by Environment Agency officers, the landowner was served with a notice requesting the removal of the excess waste and that she provide the paperwork supporting the waste removal.

Although the waste had been removed when the police offices returned in June 2021, the landowner still failed to provide the required Waste Transfer Notes. Subsequently she did provide some documentation but the Environmental Agency deemed it insufficient and she was ordered by the Magistrates’ Court to pay over £5,000 in fines, costs and victim surcharge.

FCA PROPOSES MEASURES TO TACKLE “GREENWASHING”

Following the increased number of companies being prosecuted for “greenwashing”, the Financial Conduct Authority (“FCA”) ran a consultation (CP22/20: Sustainability Disclosure Requirements and investment labels) to address concerns that regulated firms are exaggerating or misleading consumers by claiming their investment products are environmentally friendly. These claims frequently do not stand up to scrutiny, so the FCA is proposing a number of measures to increase consumers’ trust and build the transparency of regulated firms.

The measures being proposed by the FCA include conditions around the use of sustainable investment labels, disclosure requirements and restrictions on how terms like “ESG”, “green” or “sustainable” can be used in product naming and marketing. The regulator is also proposing an all-encompassing “anti-greenwashing” rule applicable to all regulated firms.

A full report was published on 25 October 2022, and the consultation closed on 25 January 2023.

HSBC ADS BANNED DUE TO GREENWASHING

The Advertising Standards Authority (“ASA”) has banned two HSBC adverts as misleading consumers, stating that they promoted the bank’s green credentials without ascertaining its actual impact on climate. In fact, it was put forth that HSBC has substantial investments in fossil fuels and other polluting industries.

The ads were deemed in breach of r 3.1 of the Committee of Advertising Practice’s Codes, and HSBC was ordered to ensure any further environmental claims were “adequately qualified”.

This is the first time the regulator has banned a financial institution’s adverts over greenwashing claims, and it sets an important precedent.  This follows the measures taken by the FCA to promote the appropriate use of “green” terms in advertising to ensure transparency with consumers.

 

NOVEMBER

COURT OF APPEAL HIGHLIGHTS USEFUL PRINCIPLES IN SENTENCING FOR ENVIRONMENTAL OFFENCES

In its recent judgment R v Anderson [2022] EWCA Crim 1465, the Court of Appeal was required to navigate some important considerations surrounding the sentencing of a director in the context of an environmental offence.

In this case, the sole director of a waste and recycling company pleaded guilty to offences of excess storage and depositing of waste, contrary to the Environmental Permitting (England and Wales) Regulations 2016. The company was convicted of an offence contrary to regulation 38 and the director of an offence contrary to regulation 41. The director was subsequently sentenced to 15 months’ imprisonment (suspended for 18 months) and a 15-year disqualification order. The director appealed this sentence.

In the judgment, the court considered the specific sentencing guideline for environmental offences. It was deemed that consideration should be had for the overall harm of the offending; in particular, the entirety of the clean-up costs should be considered when looking at the financial element.

There were also interesting comments made with regard to Newton Hearings and the relevance of piercing the corporate veil in the context of a fact-finding exercise. The full judgment can be found here

ADVERTISING STANDARDS AGENCY BANS AD OF PERFECTLY GREEN LTD

The environmental pressure group, Plastics Rebellion, challenged a claim made by Perfectly Green Ltd on Twitter, where they stated that their “Soul Eco-grass product” is recyclable. The group claimed that this was misleading as it implied that the product was eco-friendly.

The Advertising Standards Agency (“ASA”) published their ruling on 9 November 2022 and concluded that the advert on Twitter was misleading as the UK lacked the infrastructures to appropriately recycle the product so it could not be claimed as recyclable. They also deemed that the use of the word “eco” implied that the product was “eco-friendly”, whereas no evidence was actually provided on the full environmental impact of the product.

The ad was banned and Perfectly Green Ltd was instructed to ensure all future advertisements did not imply their products were more environmentally friendly than they are. This comes as yet another example of the ASA’s recent fight against greenwashing.

 

DECEMBER

FIRST UK COALMINE IN 30 YEARS APPROVED BY GOVERNMENT

The Secretary of State for Levelling Up, Housing and Communities, Michael Gove, has approved the construction of a coal-mine in Whitehaven, West Cumbria.

There have been a number of objections from location citizens, and environmental groups around the UK. It is estimated that the mine will create 500 new jobs and produce 2.8m tonnes of coking coal per year. It is also estimated that it will produce 400,000 tonnes of greenhouse gas emissions a year.

Despite these figures, the government is still affirming that the construction of this mine is possible in line with the UK’s goal of net zero emissions by 2050, as the mine will shut down in 2049.

HSBC CEASES FINANCING OF OIL AND GAS FIELDS

Following the Advertising Standards Authority’s (“ASA”) recent decision to ban two of its ads for greenwashing, HSBC announced in December 2022 that it will stop financing new oil and gas fields.

The ASA’s decision shined a light on HSBC’s investments in fossil fuels and other polluting industries, which did not line up with its 2020 pledge to be “net zero”.

Although HSBC will maintain their current investments in oil and gas fields, this decision has set an important precedent for banking institutions and the considerations they must have around the sustainability of their investments.

GOVERNMENT SETS OUT NEW LEGALLY BINDING ENVIRONMENTAL TARGETS

Under section 4 of the Environment Act 2021, the government was required to set out by 31 October 2022 their targets to tackle water and air pollution, and halt the decline in nature.

However, on 28 October 2022 the government announced that it would not be meeting this deadline and a new date has not been set.

In response, a formal complaint was filed by a number of environmental charities, including RSPB, as well as the Department for Environment, Food and Rural Affairs (Defra). This missed deadline is now being used as a means to urge the new secretary of state to set stronger targets prior to the UN Biodiversity Conference (Cop15) in December.

On 16 December 2022, the government set out their new targets and announced that a full Environmental Improvement Plan report will be published in January 2023.

These new targets include the restoration of 70% of designated features in Marine Protected Areas to a favourable condition by 2042 and restoring precious water bodies to their natural state by cracking down on harmful pollution from sewers and abandoned mines.  

 

Further Information

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

ABOUT THE AUTHOR

Alice Trotter is a trainee solicitor at Kingsley Napley and is currently in her third seat with the Criminal Litigation team, having completed her second seat with the Corporate, Commercial and Finance team and her first seat in the Regulatory 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.