Environmental Law Quarterly Update - Q1 2021
In October 2021 the Financial Action Task Force (FAFT) updated their ‘International Standards on Combating Money Laundering and The Financing of Terrorism & Proliferation’ Recommendations. In this update, FAFT clarified the types of offences considered to fall within the definition of ‘environmental crime’, namely: criminal harvesting, extraction or trafficking of protected species of wild fauna and flora, precious metals and stones, other natural resources, or waste. Whilst environmental crimes were already listed as designated category offences, meaning countries have always been required to criminalise money laundering for such crimes (as FAFT recognised at their October Plenary), FAFT found that there were significant differences in how each defined environmental crimes which had the potential to affect how they investigated them. FAFT’s October update is intended to complement its June 2021 environmental crime report, as discussed in our Q2 update here.
On 1 October 2021 the Department for Environment, Food & Rural Affairs (Defra) announced it will provide a total of £7.2m in funding to 17 conservation projects focussed on protecting endangered species, such as tigers in Nepal, orangutans in Indonesia and pangolins in the Philippines. The funding was awarded following Round 7 of the Government’s ‘Illegal Wildlife Trade Challenge Fund’ – a UK government competitive grants scheme aimed at eradicating illegal wildlife trade. Applicants for Round 8 funding, aimed at projects in sub–Saharan Africa, East and South East Asia and Latin America, had until 22 November to apply.
In October 2021 the Environment Agency published its annual report on the environmental performance of regulated businesses in England throughout 2020 and the regulatory role taken by the Environment Agency. The report explained that whilst the permit compliance rate was high (97%) there remained issues of prolonged non-compliance, particularly amongst waste activities (which was recently also the subject of an EA survey). Concerns expressed in the Environment Agency’s earlier report on water companies’ performance (referred to in our Q3 update) were also repeated. Enforcement action was, expectedly, down on previous years but not insignificant, with 27% of all enforcement action resulting in prosecutions. The majority of the other action taken resulted in enforcement notices (39%) and enforcement undertakings (31%). Only 6 cautions were issued, with the EA finding they were less effective than other powers available to them. In more positive news, they recognised there had been some significant progress, such the implementation of the EA2025.
From 31 October to 12 November 2021 the annual United Nations’ climate change conference took place in Glasgow. This conference, the 26th Conference of the Parties (COP26), was seen as the most important conference since COP21 (which produced the 2015 Paris Agreement) because it was the moment countries revisited climate pledges made under the Paris Agreement.
One of the outcomes of COP26 was the Glasgow Climate Pact which, amongst other matters, agreed to:
Leaders from over 100 countries with 85% of the world’s forests agreed to stop deforestation by 2030, whilst an agreement to cut methane emissions by 30% by 2030 was also reached. The delegates agreed to review their climate pledges by the end of 2022.
On 9 November 2021 the Environment Act 2021 was granted royal assent, with a number of provisions coming into force on 17 November 2021. Several of its other substantive provisions will come into force on 9 January 2022.
Amongst other changes, the Act:
On 18 November 2021 it was announced that the Environment Agency and Ofwat had initiated a substantial investigation into over 2,000 sewage treatment works. The investigation was immediately launched after the Environment Agency became aware from a number of companies that their treatment works may be releasing sewage discharges in breach of their permits. The investigation is designed to assess how wide-spread the problem is and it is clear that the Environment Agency and Ofwat are taking this issue very seriously, with “any company caught breaching their legal permits facing enforcement action, including fines or prosecutions”.
On 4 October 2021 Northumbrian Water pleaded guilty to discharging sewage effluent which occurred on 22 May 2017 after a blockage in a combined sewer caused the discharge onto a watercourse in County Durham. The following day the company self-reported the incident to the Environment Agency and worked on clearing the blockage and carrying out remedial improvement works. Investigations which followed found that from the point of the incident, the watercourse’s ecology and habitat had been damaged for 2km and the water quality had been impacted for 4km. At a sentencing hearing on 6 October Northumbrian Water was fined £540,000 and ordered to pay costs of more than £142,000.
On 27 October 2021 it was reported that following an investigation which began in 2017, the Environment Agency had accepted an Enforcement Undertaking from Sanderson Environmental Ltd after they breached the conditions of their environmental permit by importing and spreading untreated sewage sludge, without notification, over land operated by them in Doncaster. Under the terms of the undertaking, Sanderson Environmental Ltd paid costs of £8,137.36 and donated £30,000 to the Land Trust, a charity working to improve former coalfield sites in Yorkshire. The two owners of the land, Sutcliffe Farmers Ltd and Senviro Ltd, were issued with variable monetary penalties (VMPs) of £7,521.54 and £2,507.7 respectively, for breaches of the Nitrate Pollution Prevention Regulations 2015. They were also ordered to pay costs of £8,137.63.
As referred to above, the Environment Act 2021 introduced the requirement on relevant businesses to conduct due diligence on key forest commodities. In order for these provisions to be implemented, secondary legislation needs to be passed. In December 2021 the Department for Environment, Food & Rural Affairs (Defra) launched a consultation on this issue, seeking the views of interested parties. The deadline for responses is 11 March 2022.
On 7 December 2021 Severn Trent Water was fined £1.5m and ordered to pay costs of £58,365 after it admitted to discharging sewage illegally and breaching limits set for Biological Oxygen Demand (BOD) and ammoniacal nitrogen. The incidents occurred across four sewage treatment works between February and August 2018 and resulted in approximately 360,000 litres of raw sewage being illegally discharged from one of the treatment works into a nearby brook. This is not the first time Severn Trent have been before the courts in recent years for relevant offences; the company was fined £800,000 last summer after more than 3 million litres of raw sewage was allowed to enter a Shropshire stream between November 2014 and May 2016.
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.
Sarah Wylie is a trainee solicitor in her third seat with the Criminal Litigation team, having spent her previous seats with the Immigration and Dispute Resolution teams.
Senior Associate (Barrister)
This quarterly environmental law update provides a summary of news stories published in the period October – December 2021.
This quarterly environmental law update provides a summary of a cross-section of news stories in the period July 2021 - September 2021.
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.
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