Environmental law white paper

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ENVIRONMENTAL LAW ROUNDTABLE 2013 FROM SWEET & MAXWELL With a number of important developments occurring throughout the year, leading authors in environmental law Richard Burnett-Hall, David Hart QC and Valerie Fogleman have offered their insight into some of the recent key issues within this practice area.

• Human rights as a source of environmental law • Endocrine disruptors and nano technology • “Growth” and “Green Tape” – History repeats itself • Civil Liabilities • Damage remediation; contaminated land • HR and current Government proposals to restrain it

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HUMAN RIGHTS AS A SOURCE OF ENVIRONMENTAL LAW David Hart QC In April 2013, the Government re-affirmed its wish to reform the procedures for bringing judicial review. It proposes to reduce the time limit for “planning” challenges from 3 months to 6 weeks, and to remove the right (in all cases) to seek oral renewal of a refusal to grant permission where the judge certifies that the claim is totally without merit. The latter has the knock-on effect of preventing any attempt at appealing to the Court of Appeal.

Local authority defendants and interested parties may rejoice at this, but the news is not all good for them. The 6 week limit means that there is no time for any pre-action protocol, as the Government accepts. It means that a local authority may receive a claim without having had prior notification, and it gives them little time to consider conceding the case before proceedings are commenced. So one paradoxical consequence of the reforms may be to increase the number of claims started, with attendant costs consequences. It also means that claims when commenced may be ill-digested with a strong point hidden amongst lots of weak ones.

But claimants are even less happy. They have to find lawyers who are willing to act, get the papers, put in place finance to cover their own costs and those of the other side, get a barrister’s opinion, draft the claim, assemble the bundle and lodge it with the court – all in 6 weeks. There is a comparable 6 week period in challenges to the Secretary of State’s decisions under s.288 TCPA, but in such cases the case typically will have already been to an inspector, so campaign groups will usually be up and running.

The other major concern is about the judge failing to grapple with the merits without hearing the claimant, and bringing things to an end once and for all by certifying Totally Without Merit. Yet there is well established research the judges differ widely (if not wildly) in the rate at which they grant permission in these challenges. The hope is that they will so certify cases only very rarely.

A big question unanswered in these proposals is – what is meant by a planning case? A major source of environmental judicial reviews is the grant of environmental permits. These presumably will still be subject to the 3 month time period – and business may be wary about investing in new technology until their permit is unchallengeable.

ENDOCRINE DISRUPTORS AND NANO TECHNOLOGY Richard Burnett-Hall Endocrine disruptors EU controls over chemicals consist essentially of Regulation 1907/2006, known as REACH (the Registration, Evaluation, Authorisation and restriction of Chemical substances) and a companion Regulation 1272/2008 on the Classification Labelling and Packaging of substances and mixtures (the CLP Regulation). Implementation of both of these is now well under way, and should be complete by June 1, 2018. Though these Regulations are quite recent, their foundations go back to 1967 and they reflect much experience. Nevertheless, two particular aspects are now exercising regulators, and perhaps even more importantly the general public: (1) how to control substances that tend to be present in the environment in minute quantities and that alone may not cause significant harm, but which in combination with other substances are potentially harmful; and (2) how to deal with substances that have very different, and potentially harmful, properties at the microscopic level (i.e. nano-particles) from those they possess in all other circumstances.

Endocrine disrupting chemicals (EDCs) are an example of the first class of materials. The human body’s endocrine system produces a wide variety of essential hormones, and EDCs are materials that are liable to interfere adversely with that system, especially in the case of foetuses and young children. Animal studies, for example, show that even microscopic quantities can cause the feminisation of males of a variety of species. EDCs are found everywhere: in e.g. plastic bottles, metal food cans, detergents, flame retardants, food, toys, cosmetics, and pesticides. They may be classified under REACH as “Substances of Very High Concern”, which generally leads to outright bans, but the first such substance was only listed in late 2011. There are obvious difficulties in assessing the risks of such substances; they cannot ethically be applied directly to humans to establish their effect, so indirect assessments are essential. Current advice to pregnant women from the Royal College of Obstetricians and Gynaecologists on reducing exposure to EDCs has been said to be unduly alarming, but its critics must accept that the fact that there may be no evidence of risk is far from being evidence of no risk, particularly where a “cocktail” of EDCs may be affecting someone, and taking sensible precautions at so sensitive a stage cannot be wrong. The proper stance of a prudent regulator in these circumstances is highly debatable, and the European Chemicals Agency (the ECHA) faces a major challenge in this area.

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Nano-materials Nano-materials are structures that are typically 1 to 100 nm in at least one dimension (1 nm is one millionth of a millimetre). Such minute particles can have physico chemical properties that differ significantly from those of the bulk substance or particles of a larger size. Nano-materials are being increasingly used in e.g. health care, consumer products, electronics, energy technologies, food and agriculture. Many products containing engineered nano-particles are already available on the EU market. As yet, there are no explicit provisions for nano-materials under REACH or CLP; though where they fall within a relevant substance definition, irrespective of their size, then the applicable provisions govern. However in 2011, the European Commission released a specific recommendation on a definition of nano-materials for use, inter alia, in REACH and CLP. While nano-materials clearly provide unique technical and commercial opportunities, the rapid increase in their use raises questions regarding their potential effects on health and environment. There is a need to assess and manage the potential risks of these new forms of materials adequately, and even if manufacturers, importers and downstream users have to ensure the safe use of each substance (whatever its form) under REACH, this introduces new challenges for regulators (the Commission and the ECHA) as well as all other stakeholders.

In October 2012, the ECHA established a nano-materials working group to discuss scientific and technical questions relevant to REACH and CLP processes and to provide recommendations on strategic issues. It is an informal advisory group consisting of experts from Member States, the European Commission, ECHA and accredited stakeholders organisations. In addition, a “Group Assessing Already Registered Nanomaterials” (GAARN) was established in January 2012 by DG Environment. Its purpose is to build a consensus on best practices for assessing and managing the safety of nano-materials under REACH.

“GROWTH” AND “GREEN TAPE” – HISTORY REPEATS ITSELF Richard Burnett-Hall Reviewing the history of the development of environmental law over the 19th century (see Chapter 1 of E3), what strikes the modern reader is the constant trimming back of proposed legislation to avoid harming local business interests, even where the standards then sought to be imposed were, by comparison with today, vastly lower; and ones that no-one would now willingly accept, still less advocate. Eventually, after many years, regulatory bodies with nation-wide responsibilities were able to insist on standards that balanced rather more nearly the external costs to society of pollution against the costs to industry of preventive measures. Sadly, the lessons of over 150 years of history have been forgotten (if ever learnt) by all too many modern politicians, who constantly complain of environmental regulation, or “green tape”, as being an unreasonable constraint on “growth”. What such politicians fail, or refuse, to recognise, is that environmental assets, such as fresh air and water, and biodiversity, have real, albeit imprecise, values, and that any apparent growth that is outweighed by an ensuing loss in value of environmental assets is no more worth having than the increase in GDP that results from a major train crash. The proposal by BIS to require environmental regulators to support economic growth suffers from the same muddled thinking.

Environmental law is thus neither ‘pro’ nor ‘anti’ business. It is in essence an attempt to balance the benefits of any particular industrial or commercial activity against the external costs, or disbenefits, that it is liable to impose on society and the environment as a whole. In some cases, such as the emission of ozone depleting compounds and of highly toxic chemicals, the external costs are either always unacceptably large or can be avoided by using other sufficiently effective technologies, and an outright prohibition is appropriate. In others, an acceptable balance can be struck by imposing conditions on the conduct of the activity. In yet others, economic instruments may be the most efficient means of both internalising external costs and creating incentives to minimise them. What is all too often overlooked by advocates of “growth” is that to the extent that controls prevent or discourage the use of harmful technologies, they equally promote the development of, and markets for, beneficial ones. The potential market for such innovative “green” technologies is vast, and the UK is very well placed to develop it. It would be a tragedy if we were to hold to the myopia that deterred sensible controls in the 19th century, and to allow today’s blinkered vision on matters environmental to hand such opportunities to our more aware global competitors.

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CIVIL LIABILITIES Valerie Fogleman Most environmental claims in England and Wales include claims in nuisance, mainly private nuisance and the rule in Rylands v Fletcher. Recent cases include the loss of property due to an electrical spark having caused about 3,000 tyres at a tyre fitting business on an industrial estate to catch fire. The fire then spread to adjacent premises. The Court of Appeal concluded that the owner of the tyre fitting business was not liable under the rule, due to the fire, not the tyres, having escaped from the land.

Claims in nuisance from odours have become more common in recent years, especially from landfills and, less frequently, sewage treatment works. In late 2011, in Dobson v Thames Water, Ramsey J awarded damages of £20,120 to 10 households that had, among other things, brought claims in nuisance for odours and mosquitoes from a nearby sewage treatment works from 1999 to 2009. The lead cases were representative of the 1,350 claimants. The awards in the lead cases were used to calculate damages for the remaining claimants.

In 2012, in Barr v Biffa Waste Management Services Ltd, the Court of Appeal allowed an appeal against a judgment involving claims in nuisance from odour, dust, noise, fly infestation, litter, vermin and birds. The lead cases involved 30 residents who were representative of 152 households near a large landfill. The Court of Appeal ruled that the High Court had been wrong in concluding that the environmental permit for the landfill may be a defence to nuisance, commenting that there was no basis for statutory schemes such as environmental permitting to eliminate private law rights. As a result, the High Court began the assessment of the amount of awards to each of the 152 households according to the framework set by the Court of Appeal.

DAMAGE REMEDIATION; CONTAMINATED LAND Valerie Fogleman In April 2012, the Government revised the statutory guidance for Part 2A of the Environmental Protection Act 1990, the regime to remediate contaminated land. Whilst the Government concluded that Part 2A itself remains ‘fit for purpose’ and that ‘there is a strong case for keeping it on public health and environmental grounds’, it commented that the statutory guidance had created ‘a deadweight burden on the UK economy’ due largely to local authorities requiring land that should not have been determined to be ‘contaminated land’ to be remediated as well as developers voluntarily remediating such land, both at a huge cost to the British economy.

In order to resolve the issue, the 2012 statutory guidance for England revised the process by which land is determined to be contaminated land due to a significant possibility of significant harm for human health.

This process now involves four categories of land, two in which there is either definitely a significant possibility of significant harm to human health, or there is definitely not such a possibility. In effect, the new system concentrates the consideration of whether land is contaminated land in respect of effects on human health on the two remaining categories for which the issue is more difficult to decide.

The success of the statutory guidance in resolving this issue is crucial to the future of Part 2A because local authorities have tended to focus their inspections for contaminated land in their areas on housing. For example, the Environment Agency’s latest report on contaminated land in England and Wales, dated 2009, stated that, by March 2007, 91% of sites in England that had been determined to be contaminated land and 98% in Wales had housing on them.

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HR AND CURRENT GOVERNMENT PROPOSALS TO RESTRAIN IT David Hart QC In the early days of the HRA, it looked as it was going to make serious waves in planning and environmental law. The planning system threatened to be turned upside down by Alconbury/Article 6, and the law of noise and smell nuisance by the twin barrels of Hatton and Marcic. But the combined effect of the House of Lords and the Grand Chamber in Strasbourg led to the swift reversal of these three ground breaking decisions. In truth, it is now very difficult to defeat a planning or environmental decision by a public body via a head-on Article 8 or A1P1 challenge: see e.g. planning in Lough or flooding in Arscott, to name but two. The courts have said – these decisions are for other branches of government, not for us – or, as Lord Hoffmann characteristically put it, - strengthening the rule of law did not mean inaugurating the rule of lawyers.

But the HRA still is playing its part in a more subtle and side-on fashion. The first area is where some domestic unlawfulness is established but domestic remedies do not provide a remedy in damages for such administrative unlawfulness– which is the default position. An example earlier thus year is Infinis – landfill operator deprived of ROCs by erroneous decision of regulator – no domestic law remedy, but the Court of Appeal allowed a claim for their value under A1P1. The second is where the courts feel able to interpret some statute heroically in order to confer a remedy for e.g. a noise nuisance (see the statutory compensation case of Thomas) – where a literal reading would appear to prevent such a claim. The third is more indirect – the procedural obligations arising under Articles 8 and A1P1 require properly articulated and proportionate decision-making when interferences are being legitimised – not a blanket decision.

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Richard Burnett-Hall is a Solicitor and Consultant to Bristows. He was the author of the first edition of Burnett-Hall on Environmental Law. David Hart QC is a barrister at One Crown Office Row and has written a number of articles on environmental cases.

Valerie Fogleman is a Consultant to Stevens & Bolton LLP, and Professor of Law at Cardiff University. She has written and lectured widely on environmental law.

Burnett-Hall on Environmental Law analyses all the principle areas of environmental law in a single volume. You’ll have a resource which covers the full spectrum of topics in this area, from climate change, EIA and nature conservation, to water, IPPC and air, waste, contaminated land, statutory nuisance and noise, to chemicals, GMOs and nuclear.

• Includes new chapters on marine protection (dealing with the newly extended legislation on marine conservation, in particular marine protection zones), and environmental marketing (covering “green” advertising, eco-labelling, eco-design and information labelling) • Details the sources of environmental law, including international and EU law • Contains expanded coverage of the EU chemicals regime under REACH, the Plant Protection Products Regulation, and the proposed EU Biocidal Products Regulation

3rd Edition

• Provides fuller treatment of the Regulatory Enforcement and Sanctions Act 2008 • Examines the issues relating to public accountability, looking at public law and access to information • Considers the complexities of insurance for environmental liability • Covers prosecution and sentencing for environmental damage

ISBN: 9780414048072

• Looks at environmental regulators and their enforcement powers

Price: £250 General Editors: Richard Burnett-Hall; Brian Jones Editors: David Hart QC, Valerie Fogleman

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