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CALLS FOR “GREEN RECOVERY” GATHERING PACE AND POLITICAL SUPPORT

As the coronavirus pandemic seems to be reaching its peak, with countries around the world facing devastating health and economic impacts, it is striking to note very fast moving political developments in support of a “Green Recovery”.

By 11th April 2020, European climate and environmental ministers from 13 countries including France and Germany had signed a joint letter which acknowledged that while –

“Our societies have shut down, borders are closed, unemployment is on the rise and companies are struggling… we must not lose sight of the persisting climate and ecological crisis.”

The letter called on the European Commission to use the EU Green Deal as the framework, and declared that –

“We need to send a strong political signal to the world and our citizens that the EU will lead by example even in difficult times like the present and blaze the trail to climate neutrality and the fulfilment of the Paris Agreement… action to protect and conserve biodiversity must be a key part of our response…”

On 14th April 2020 an alliance of 180 European Ministers, MEPs, business leaders and environmental activists signed a letter welcoming the declaration of European leaders to do “whatever it takes” to tackle the social and economic consequences of the crisis, but calling on this to take the form of an economy built around Green principles, with the fight against climate change and the degradation of nature going hand in hand with the economic measures –

“Covid-19 will not make climate change and nature degradation go away. We will not win the fight against Covid-19 without a solid economic response. Let’s not oppose those two battles, but let’s fight and win them at the same time. By doing so, we will only be stronger together.”

Also on 14th April 2020 the UK’s Climate Change Committee announced that it would amend its 2020 work programme to respond to the global Covid-19 pandemic, and –

“refocus its annual Progress Report to Parliament in June to include advice on supporting a resilient recovery”

The Climate Change Committee also announced that Pete Betts, former chief climate negotiator for both the UK and EU, and a veteran of 16 UN climate summits, would be offering his expert advice to the Committee to guide its international work in the run up to “the most important summit on climate change since the landmark Paris Agreement in 2015”.

With the COP-26 climate summit postponed, which had been scheduled to take place in Glasgow in November 2020, and the co-hosts Italy and the UK, with all other participants, distracted by the pressing demands of the pandemic, these are particularly important signals of the direction of travel for future policy on climate change and biodiversity.

About the Author

William Wilson is a specialist environmental, regulatory and nuclear lawyer with over 25 years experience in government, private practice and consultancy. He worked as a senior lawyer at the UK Department of the Environment/DETR/DEFRA, and helped to build up the environmental and nuclear practices at another major law firm, as well as running his own environmental policy consultancies. William has experience of all aspects of environmental law, including water, waste, air quality and industrial emissions, REACH and chemicals regulation, environmental protection, environmental permitting, litigation, legislative drafting, managing primary legislation, negotiating EU Directives and drafting secondary legislation.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental  sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

For a PDF of this blog click here

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POLLUTION FROM SHIPS AND PROTECTION OF THE ENVIRONMENT: THE IMO, MARPOL AND COOKING OIL

The International Maritime Organisation (IMO) has militated for the protection of the environment from the harmful effects of fuel emissions originating from shipping traffic since the 1960s. The International Convention for the Prevention of Pollution from Ships (MARPOL) was enacted in 1973. Regulations in MARPOL Annex VI dealing specifically with air pollution from ships were enacted in 1997 and entered into force in 2005. Revised regulations in Annex VI were adopted in 2008 and took effect on 1st July 2010. Further, additional amendments have been adopted since.

MARPOL Annex VI and Sulphur Oxide Emissions

The aim of Annex VI has been specific: the regulations endeavour to reduce and control the airborne emissions of sulphur oxides, nitrogen oxides, volatile organic compounds and the consequences of shipboard incineration. The focus is on the prevention of pollution on the environment of littoral regions and ports, including human health problems demonstrably caused by these toxic emissions, as well as on global air pollution.

The regulations are designed to reduce sulphur oxide emissions by regulating the sulphur oxide content of ship fuel oil down to a global limit.

Since 1st January 2015, Annex VI established a sulphur limit of 0.10% for ships operating in so-called Emission Control Areas (ECA), currently the busy Nord Sea, the Baltic Sea, designated areas off the US and Canada and the US Caribbean Sea. But what about the coastal areas outside those the IMO has categorised as ECAs?

In 2016, the Contracting Parties to MARPOL set themselves a deadline, of 1st January 2020, for the regulations of Annex VI to come into effect for ships sailing in areas outside the designated ECAs. A decision was reached that the limit for the sulphur content of ship’s fuel oil, which was 3.5% mass by mass until 31st December 2019, was to be reduced to 0.50 % mass by mass.

That the agreement on the date of 1st January 2020 was fixed did by no means go without saying. Whilst the date was originally set in 2008 by the revised Annex VI, it remained to be seen whether in the interim there would be enough low sulphur fuel oil of good quality, available in ports worldwide, to implement this ambitious deadline. If there appeared to be insufficient ‘compliant’ fuel oil available by the 1st January 2020 deadline, then the date could be pushed forward to 1st January 2025. However, after assessment of the availability of low sulphur fuel oil going forwards, the Marine Environment Committee of the IMO decided in October 2016 that the designated deadline would indeed be achievable: the countdown to 1st January 2020 could begin.

Whilst the ultimate responsibility of compliance with Annex VI lies with the Contracting Parties to MARPOL, in order to comply with the regulations, shipowners and operators themselves have begun using a number of methods to ensure that low sulphur fuel oil is bunkered and used on board in both main and auxiliary engines. The use of gas is a much-favoured option amongst ship operators and so is methanol. Currently, there are also a number of feasibility studies into the use of LNG for the propulsion of ships which are not themselves LNG carriers, being carried out in the North American and Caribbean ECA’s. The prospects are good.

The Cooking Oil Alternative

Most recently, a new low sulphur fuel has been tried and tested.

Cooking oil used in catering industry is the most advanced and imaginative low emission fuel to have been adopted by certain shipowners. It is not altogether surprising that in 2019, CMA CGM, France’s foremost global container transport group, in partnership with Shell, tested marine biofuel obtained from the country’s famed gastronomic sector. CMA CGM state that they will henceforward supply their fleet with ‘tens of thousands of tonnes’ of marine biofuel distilled out of used cooking oil. CMA CGM’s fuel now used on board their fleet is composed of 80% of low sulphur fuel oil and 20% biofuel. Greenhouse gas emissions will be reduced by 80%. An added benefit is that the use of cooking oil in the marine fuel sector has the advantage of relieving restaurateurs from disposing of used oil in less environment friendly places such as landfills. In short, if cooking oil does not unduly damage the combustion machinery of the ships designated to be operated on such fuels, then this could be a win-win situation for a number of stakeholders.

Not to be outdone by CMA CGM, MSC Crociere of Geneva have announced that their vessels will now use marine fuel oil consisting of 30% biofuel on a routine basis going forward, when bunkering in Rotterdam.

In their turn, HAPAG LLOYD let it be known on 4th February last that they were testing marine biofuel consisting of cooking oils and fats on the ‘Montreal Express’, one of their medium sized container ships capable of transporting 4400 TEU’s and plying between the Canadian East Coast and Europe. They claim that the use of biofuel will reduce greenhouse gas emissions by 90%. Their used fuel will consist of 80% low sulphur fuel oil and 20% biodiesel based on cooking oil. The ‘Montreal Express’, currently deployed on a trial run with the new fuel, will also undergo additional tests to ascertain the effect of cooking oil on the ship’s combustion machinery.

Evidently, shipowners are now competing to employ the invention of used cooking oil to contribute to a reduction of the airborne health hazards which high sulphur content fuel oils pose in ECA’s, and also globally.

So far so good! But who controls compliance with the new Annex VI regulations and what sanctions await those operators exceeding the 0.10 % and 0.50 % limits? Compliance will largely be in the hands of flag states whilst sanctions are to be established by each Contracting Party to MARPOL as flag or port state. Since sanctions are the responsibility of each separate Member state, it would not be unthinkable that a marked divergence between the sanctions for non-compliance on the territory of each Contracting Party would ultimately result. It would presumably be the task of local authorities of the Member states, such as Ministries of Transport or Economic Affairs, which could impose administrative fines for non-compliance. The Sub-Committee on Pollution Prevention and Response of IMO has developed guidance to assist the Contracting Parties in their implementation of the 2020 mass for mass sulphur limits.

Cooking Oils – securing availability and supply

Returning to cooking oil and fats, the question which exercises the mind most is the availability and quality of these oils. In other words, where to obtain used cooking fats in quantities sufficient to supply the gigantic tonnage of shipping plying the high seas. The IMO appears rather to bow out of their responsibility in this respect since it hands the responsibility swiftly on to the Contracting Parties to MARPOL. Regulation 18 of Annex VI provides that the Parties ‘take all reasonable steps to promote the availability of fuel oils which comply with this Annex and inform the Organization of the availability of compliant fuel oils in its ports and terminals.

One envisages a situation whereby each Contracting State’s authorities issue orders to all hostelries and any other gastronomic establishments in their territory to preserve their cooking oils and fats. These would then have to be collected by tankers and transferred to the designated authorities to be purified, processed and converted to low emission fuel in readiness for further transport to terminals worldwide. Indeed, in the USA this process has, in conjunction with BP, taken place in respect of jet fuel, but to date on a limited basis.

In the interim, the Sustainable Shipping Initiative (SSI) launched her report ‘The Role of Sustainable Biofuels in the Decarbonisation of Shipping’ presented at the UN Climate Change Conference (COP25) held in Madrid in December 2019. Reactions emanating from the shipping industry to this report are eagerly awaited.

Conclusion

For the time being, however, it is heartening to note the enthusiasm with which shipowners and operators have embraced the ‘cooking oil alternative’ and it is sincerely to be hoped that energy companies such as Shell and BP will continue to contribute to this process. Whether this alternative will ultimately satisfy global demand remains anyone’s guess and the marine sector is clearly not the only industry in which the new biofuels are going to be used. Demand will come from a number of other industries (such as aviation). Supply for the shipping industry may, as a result, be relatively constrained.  It must therefore be assumed that other low carbon biofuels will remain an important element in the composition of shipping fuels for the 21st century.

About the Author

Reina Maria van Pallandt is a senior disputes resolution lawyer with dual British and Dutch nationality. Reina Maria obtained a degree in Dutch Law and Public International Law (LLB Hons) at the University of Amsterdam and was subsequently admitted as a Solicitor of the Senior Courts of England & Wales in 1979 and to the Law Society of Ireland in 2019. Reina Maria originally practised as a solicitor at Holman, Fenwick & Willan in London and Paris and thereafter at Clifford Chance where she specialised in marine and general commercial arbitration and litigation representing shipowners, P&I Clubs, shipbuilders, repair yards and charterers such as oil and gas companies and commodity traders.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy, infrastructure and natural resources  sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and other technical experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

For a PDF of this blog click here

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ESG CRITERIA INCREASINGLY SIGNIFICANT AS THE DOMINANT DRIVERS FOR INFRASTRUCTURE INVESTMENTS

Environmental, social (or sustainable) and governance (ESG) criteria are a set of standards for a company’s operations that socially conscious investors use to screen potential investments.

The importance of such standards as critical criteria influencing key decisions made by investors in energy infrastructure assets has been apparent for a considerable time. With growing climate change risk awareness among institutional investors, however, ESG issues are assuming an ever more dominant place in the infrastructure investment industry. ESG criteria certainly now drive the monitoring and evaluation processes adopted by asset managers of both listed and unlisted infrastructure assets to a considerable extent. Whether to invest or divest, or whether to maintain or reduce exposure to a particular energy asset class, investors are increasingly evaluating their decisions against industry wide-ESG benchmarks set by regulators, rating agencies and business academics.  

Setting an appropriate and fit for purpose ESG policy is a challenge for all businesses, but especially so while the taxonomy of corporate issues falling within ESG grows ever broader. ESG needs to be aligned with the mission statement of the energy asset owner and so also embedded in its culture and values. However, arguably this is especially difficult for energy infrastructure owners to achieve. For example, the majority of senior executives in the energy industry tend to be male, drawn either from an engineering or financial background and with similar career profiles. There is certainly a marked absence of female senior executives. Even though all the evidence is that boards containing a better gender balance make more sustainable long term decisions and are more effective in managing risks, there are relatively few examples of well-balanced boards in the energy and infrastructure industry. Without appropriate adjustment, this presents an immediate adverse ESG mark.

An energy infrastructure asset may be owned by a publicly listed company or, more commonly, by a private entity (company or partnership). Whatever the ownership structure, the ultimate asset owner is likely to have complex stakeholder relationships to manage, including investors (public (institutional) or private (retail), employees, regulators, suppliers and contract counter-parties.  Managing these relationships, up, down and sideways, takes considerable skill and effort. Moreover, the scrutiny of the asset owner’s ESG performance by rating agencies, investment analysts, financial journalists and others is likely to present it with many communications challenges, both internal and external. Finding the most effective and impactful language to articulate the asset owner’s key ESG messages is unlikely to be easy given the different audiences it needs to satisfy.

Wind farms, solar parks, energy storage facilities, power plants, electricity grids, oil & gas facilities all have differing environmental footprints. The basis on which their individual performance is assessed needs, rightly, to be scrutinised against a range of criteria. ESG provides an increasingly important handrail to guide such assessment. It is certainly more frequently quoted and senior executives are increasingly aware of its significance in their management decisions.

The Prospect Law and Prospect Advisory team has substantial experience of raising investment capital for energy infrastructure assets, where ESG issues have been at the forefront of the decision criteria used by the equity and debt capital providers ultimately committing funding to the asset. Overall ESG is certainly likely to remain a major feature of energy infrastructure transactions in the future.

About the Author

Mark Vickers is an experienced public and private sector complex risk consultant, with a focus on financing projects in energy and infrastructure. Mark was previously a commercial & investment risk advisor at The Crown Estate, focused on new marine energy technology investments in UK waters, such as wave & tidal power, floating wind turbines and offshore transmission grids. With qualifications in law, accounting, finance and risk, Mark has worked in a range of major banks, private equity funds, corporates and professional advisory firms.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental  sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

For a PDF of this blog click here

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THE GEOLOGICAL DISPOSAL OF RADIOACTIVE WASTE IN ENGLAND: RECENT DEVELOPMENTS

There have been two recent changes in the quest to find a permanent site for the geological disposal of higher activity radioactive waste.

Written Ministerial Statement

In a written statement to Parliament on 17 October, the Minister for Business Energy and Industrial Strategy, Nadhim Zahawi, designated the National Policy Statement (NPS) for Geological Disposal Infrastructure, following its laying before parliament on 4 July. This marked the final parliamentary step in the NPS process.

The Minister stressed the importance of those who have benefited from nuclear technology taking appropriate steps to manage the associated radioactive waste, adding the important role nuclear technology plays in transitioning to a carbon neutral economy. He also acknowledged that geological disposal is internationally recognised “as the safest and most secure means of permanently managing a proportion of this waste not suitable for other management regimes”.

He went on to say that the NPS provides an “appropriate and effective framework for the Planning Inspectorate and the Secretary of State for the Department for Business, Energy and Industrial Strategy to examine and make decisions on development consent applications for geological disposal infrastructure in England.” (Note that responsibility for this area in the United Kingdom is devolved to its separate countries and this NPS therefore only applies to England).

As well as the geological disposal facility (GDF), the NPS also covers deep borehole investigations which will be necessary to characterise the geology at potential sites. Accompanying the NPS, the government has also published associated documents:

  • Equality Analysis for the National Policy Statement for Geological Disposal Infrastructure, which concludes that people with protected characteristics would not be more or less affected than other groups by the impacts of the NPS;
  • Habitats Regulations Assessment of National Policy Statement for Geological Disposal Infrastructure, which supports the Secretary of State in meeting his obligations under regulation 110 of the Habitats Regulations; and
  • Post Adoption Statement for the Appraisal of Sustainability of the National Policy Statement for Geological Disposal Infrastructure. This is required by the Strategic Environmental Assessment (SEA) Directive 2001/42/EC and relevant implementing regulations to ensure that environmental considerations are taken into account.

Further Backing

Further endorsement of the approach to achieving geological disposal was announced last week by the nuclear and environmental regulators. Implementation of geological disposal is the responsibility of Radioactive Waste Management (RWM), a subsidiary of the Nuclear Decommissioning Authority. They are not yet subject to formal regulation, but in their joint annual report, the Office of Nuclear Regulation (ONR) and the Environment Agency (EA) reported on the outcome of their scrutiny of RWM during 2018-19.

ONR and EA work together “to make sure that any future geological disposal facility (GDF) will meet the high standards for environmental protection, safety and security that the public expects.” They will engage with RWM early in the process of identifying potential sites so that when a site is identified RWM already clearly understands what it needs to do as part of the regulatory process. They also liaise regularly with RWM to make sure that it gives the right advice to waste producers about packaging radioactive waste for future disposal at a GDF.

They say that RWM has significantly improved its generic Disposal System Safety Case, including taking the regulators’ earlier advice, noting though that “RWM still has a significant amount of work to do to develop a comprehensive, site-specific safety case and many aspects can only be fully evaluated once a site has been selected and specific designs produced.”

They added, “We are satisfied that RWM liaises with government and regulators to establish common understanding and manages any necessary changes through its change control process.” Further, “RWM has made significant progress towards addressing the need to protect groundwater resources and human health from the non-radioactive component of the inventory for disposal, and is providing the necessary advice to waste producers.”

While these two pieces of news are positive, the overall quest to find a site is still a work in progress and RWM is engaging with communities to inform this work.

About the Author

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental  sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

For a PDF of this blog click here

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PROSPECT LAW’S DR ASHLEY BOWES AUTHORS OXFORD UNIVERSITY PRESS’ A PRACTICAL APPROACH TO PLANNING LAW (14th ed.)

We are pleased to announce that Prospect Law’s Dr Ashley Bowes has authored the latest edition of Oxford University Press’ A Practical Approach to Planning Law.

Currently in its fourteenth incarnation, A Practical Approach to Planning Law is intended as an authoritative and reliable resource for all those working in the area, providing a comprehensive and systematic account of the principles and practice of planning law.

It has been extensively revised and updated to include full coverage of recent structural changes in the area, including the Neighbourhood Planning Act 2017, the Housing and Planning Act 2016, and the Infrastructure Act 2015.

It also covers new case law from the Supreme Court and Court of Appeal that have shaped the field since the previous edition.

Clearly written and accessible, A Practical Approach to Planning Law provides a step-by-step guide to planning law and practice.

About the Author

Ashley Bowes is a barrister specialising in all aspects of planning, property, licensing and local government law. He is ranked as a leading practitioner by Chambers & Partners, the Legal 500 and by ‘Planning’ magazine. Ashley has experience of acting for developers and planning authorities at public inquiries, and has acted for both claimants and defendants at all stages of planning litigation, including to the Supreme Court. He was shortlisted by Chambers & Partners as Environment/Planning Junior of the Year 2018 and is a member of the Attorney General’s C Panel of Junior Counsel to the Crown, in which capacity he represents the UK Government in his areas of specialism. Ashley is also the General Editor of Sweet & Maxwell’s Journal of Planning & Environment Law and the author of Oxford University Press’ A Practical Approach to Planning Law, as well as a contributor to Butterworths’ Planning Law Service and to the Routledge Handbook of Comparative Planning Law. In 2019, Ashley was co-opted to the Planning & Environment Bar Association Committee.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental  sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way. 

For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

For a PDF of this blog click here

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ENVIRONMENTAL LAW AND POLITICS POST-BREXIT

How will your business be affected by the major changes in environmental law and regulation that are taking place, many flowing from Brexit?

Prospect Law’s William Wilson, Senior Environmental and Regulatory Lawyer, has developed short, focussed briefings on some of the key areas, designed to help your business map a way through a rapidly changing legislative landscape.

We can tailor these briefings to your specific business, or deliver them in short interactive lunchtime sessions aimed at senior management or groups of staff with particular interests.

Defra’s Resources and Waste Strategy

This Strategy takes forward, in England, the Circular Economy elements of Defra’s 25 year plan. This briefing considers coverage of product lifecycle (on the circular economy model); topical areas (such as waste crime and food waste) and the bigger picture (for example marine plastics, research and innovation, and data monitoring), and key commitments including those on producer responsibility for packaging.

REACH Chemicals Regulation, and UK REACH

Disengagement from the EU REACH chemicals regulation, and from related regulations such as Biocidal Products, has been one of the most vexed aspects of Brexit for businesses affected by environmental laws. This Briefing considers relations with ECHA post-Brexit, the position of Downstream Users and Only Representatives, issues with UK REACH, the waste/chemicals interface and implications for firms undertaking cross-border trade.

Environment (Principles and Governance) Bill

On leaving the EU, the UK will cease to apply EU Treaty provisions supporting environmental protection and will no longer have environmental laws applied by the European Commission and the Court of Justice of the European Union. This Briefing considers the arrangements that the government is proposing for England to replace these structures with a new Office for Environmental Protection, and what has been learned from pre-legislative scrutiny by the EFRA Committee, including Michael Gove’s evidence of 6 March 2019.

Environment Bill

The wider Environment Bill, promised for the next session of Parliament, is supposed to include the draft Environment (Principles and Governance) Bill; air quality protection; enhancement of landscapes; wildlife and habitat; more effective handling of resources and waste; better management of surface, ground and waste water. This will be the most important Environment Bill for over 20 years, and this Briefing considers the ways in which it will affect the environment and businesses.

Illegal waste sites issues

Illegal waste sites are a massive issue for many parts of the UK, happening on a much greater scale than is generally realised and resulting in millions of pounds of avoided Landfill Tax for government and regulators, as well as unfair competition for legitimate businesses. This Briefing considers some of the latest technological options for locating and identifying illegal waste sites, and bringing them to the attention of regulatory authorities.

Air Quality Strategy, Clean Air Zones, Air Quality Legislation

Air quality legislation is undergoing a major overhaul, with big implications for the economy, the environment and human health. This Briefing considers Clean Air Zones, the ClientEarth litigation, the Government’s new Air Quality Strategy, air quality in the Environment Bill, and some of the effects that this legislation is already having, for example on the car market.

Pesticide policy, law and Brexit

In the short term, pesticide policy review seems to have fallen victim to the “Brexit first” approach within government. In the medium term it is likely to be subject to major review. This Briefing considers the trends from recent European judgments, and the way in which their influence may continue to be felt, despite Brexit and divergence from EU law.

Devolution, Environmental Law and Brexit

The development of distinctly different environmental laws and regulations, in England, Scotland, Wales and Northern Ireland, is going to result in an increasingly challenging environment for compliance for businesses working across these jurisdictions. This Briefing gives a very brief overview of the main differences, and considers both the possible problems and potential solutions for an integrated approach to environmental regulation.

Labour Party policy, the environment and energy

Is your business up-to-date on Labour Party policies on the environment and energy, and how it may be affected by them in the event that the Labour Party wins a future election? This Briefing reviews the party’s policies in these key areas, and considers how they may affect businesses.

Environmental Law and trade

Alignment of environmental regulations with either the EU, the USA or any other jurisdiction is clearly going to be a major factor in any future trade talks undertaken by the UK. This Briefing considers what to expect, and what is at stake.

About the Author

William Wilson is a specialist environmental, regulatory and nuclear lawyer with over 25 years experience in government, private practice and consultancy. He worked as a senior lawyer at the UK Department of the Environment/DETR/DEFRA, and helped to build up the environmental and nuclear practices at another major law firm, as well as running his own environmental policy consultancies. William has experience of all aspects of environmental law, including water, waste, air quality and industrial emissions, REACH and chemicals regulation, environmental protection, environmental permitting, litigation, legislative drafting, managing primary legislation, negotiating EU Directives and drafting secondary legislation.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental  sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

To discuss which of these Briefings may be relevant to your business, and how to arrange a session to deliver them in-house, or to follow up advice required on any of the issues covered, please contact William Wilson at wew@prospectlaw.co.uk or on +44 (0)7885 551 405.

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PLANNING LAW: A BRIEF ANALYSIS OF RECENT DEVELOPMENTS

Rosewell Review of Planning Inquiries Published

On 12 February 2019, the Government published the report of Bridget Rosewell OBE, further to her review of the planning appeal system.

The Report makes a series of thoroughly sensible recommendations, across all stages of the appeal process, which have been received well by practitioners, including:

Submission to Start Date

  • Streamlining the validation process by introducing pro-forma documentation that can be electronically checked.
  • A Reform of statements of case, through use of pro-formas as well as greater engagement and precision.
  • Streamlining the process for determining a mode of appeal.
  • Faster issuing of the start letter identifying the inspector with responsibility for the appeal.

Start Date to Inquiry

  • A senior inspector should lead on the date and venue of the inquiry (identified as a present source of delay). There is a suggestion for greater consultation and flexibility by permitting the appellant to contribute to the cost of the venue.
  • Statements of common ground should be more informative and produced earlier (policed by the inspector).
  • Greater pre-inquiry management (telephone conferences are strongly encouraged).
  • Greater use of round table procedures and topic based approaches to inquires.
  • Greater accessibility to information through the online portal.
  • The possible use of transcription technology
  • Inspectors are advised to manage cross-examination effectively, reporting inappropriate behaviour to professional bodies.

Can Privacy from Overlooking be Protected by the Tort of Nuisance?

In Fearn v Board of Trustees of Tate Gallery, the neighbours to the Tate Gallery sought an injunction to restrain the use of its viewing gallery.

Amongst the interesting issues in the case, Man J addressed whether overlooking could form the basis a claim in nuisance, finding that the law of nuisance is capable of ”protecting privacy rights from overlooking in an appropriate case”, and noting that whether it does or not would depend on whether there is “a legitimate expectation of privacy”, having regard to locality.

Interestingly, Mann J rejected the submission that the planning process by itself “is a sufficient mechanism for protecting against infringement of all privacy rights…”. Indeed, in the instant case, the Judge found that overlooking did not appear to have been considered within the planning process and so provided “little or no assistance” to resolving the nuisance claim.

Accordingly, this judgment may give rise to claims in nuisance, further to the conclusion of a planning process, where neighbouring landowners remain aggrieved by an impact of overlooking on the enjoyment of their land.

Yet another CJEU Habitats ruling: Holohan v An Bord Pleanála

On 7 November 2018 the CJEU gave judgment in Holohan, a  case concerning a proposed ring road around Kilkenny in south-east Ireland. The proposed route will cross rivers which form part of a Special Area of Conservation.  The CJEU decided, at [40], that:

“… an ‘appropriate assessment’ must, on the one hand, catalogue the entirety of habitat types and species for which a site is protected, and, on the other, identify and examine both the implications of the proposed project for the species present on that site, and for which that site has not been listed, and the implications for habitat types and species to be found outside the boundaries of that site, provided that those implications are liable to affect the conservation objectives of the site.”

The judgment appears to interpret the EU Environmental Directives more onerously, so as to mean that in addition to assessing the impact on habitat types and species for which the site is protected, appropriate assessments must also consider other habitat types and species which happen to be present on the site, and those outside the boundaries of the site which might also be affected.

Scope of section 73 of Town and Country Planning Act 1990 reconsidered

It is well established that the grant of an application under s.73 of the 1990 Act results in a fresh and stand-alone grant of planning permission (see London Borough of Lambeth v Secretary of State for Communities and Local Government). The power under s.73 has been held to mean:

“[a power] impose different conditions upon a new planning permission, but only they are conditions which the council lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application…”.

The decision in R (Vue Entertainment Ltd) v City of York Council appeared to suggest a nuance to that test, as follows:

“… it is not open to the council to vary conditions if the variation means that the grant (and one has therefore to look at the precise terms of grant) are themselves varied.”.

Most recently, in Finney v Welsh Ministers, Sir Wyn Williams considered that observation and held that:

“… a variation pursuant to section 73 can be lawful notwithstanding that it may necessitate a variation to the terms of the planning permission which preceded the section 73 application.”

Accordingly, there is no hard-edged rule that a local authority (or inspector) may not grant an application under section 73, if it would result in a variation to the terms of the planning permission. The test is simply whether the fresh grant of permission which results from s.73 would amount to “… fundamental alteration of the proposal put forward in the original application”.

About the Author

Ashley Bowes was called to the Bar as a Prince of Wales scholar by Gray’s Inn. He holds a doctorate in law and specialises in Planning, Property, Environmental and Public law. He is the Assistant Editor of Sweet and Maxwell’s Journal of Planning and Environment Law and a contributor to Moore and Purdue’s A Practical Approach to Planning Law (13th ed.). Ashley Bowes has appeared in the recently created specialist Planning Court within the High Court, and has wide experience of Public Inquiry work covering planning and enforcement appeals, local plans, village greens, common land and rights of way.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental  sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way. 

For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

For a PDF of this blog click here

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LOSS OF SOCIAL LICENSE TO OPERATE: THE TOP RISK FACING EXTRACTIVE SECTOR IN 2019/2010

Ernst and Young has assessed the loss of a Social License to Operate (LTO) as the top business risk for the extractive sector in 2019/2020.

This exponential rise has come about because the current approach taken by boards and CEOs is not broad enough. Indeed, the stakeholder landscape is changing and miners need to adapt. Furthermore, there has been a dramatic rise in resource nationalism globally, and the necessity of digital transformation highlights needs for a stronger LTO.

Whilst most sections of the metals and mining industry say the right things with regard to LTO issues, few actually take action. Today, LTOs extend well beyond social and environmental issues, into the realm of issues relating to Shared Value. If mining/metals companies are to remain competitive and keep their stakeholders on side, they need to focus more greatly on how they can Create Shared Value, to the point where this mindset needs to become deeply embedded within a company’s fundamental DNA.

LTO issues cannot be delegated to a department within the business. Rather, LTO concerns must be integrated into a Company’s core decision making process. There is more information about, and bigger platforms for the sharing of that information – just one disaffected shareholder has the ability to destroy a Company’s reputation for good.

Wider society is increasingly participative in multiple issues that directly concern mining/metals operations – social media and the internet rally issues-based stakeholder participation en masse, especially in relation to issues such as sustainability, pollution and workers rights.

Social media has given minority groups, such as indigenous communities, global reach in respect of their issues of concern.

New business models are increasingly focussed on community owned operations, as opposed to more traditional models, whilst host nation governments have higher expectations of shared value outcomes. Essentially, governments want much more than tax and employment opportunities in return for the granting of access to resources. Increased transparency, as a result of more disclosure regimes, means that positive and negative impacts of mining operations are subject to much closer scrutiny than previously. Increasingly, projects are assessed on the basis of the quality and extent of stakeholder engagement. Kenya, for example, has enshrined the principle of public participation into its constitution, under Articles 10, (2) and 69 (d). Further, disaffected stakeholders are pursuing litigation in respect of past damages, and provisioning for such eventualities will become a key issue for companies and regulators.

Click on the links below to read Mark’s previous articles on Shared Value

The Creation of Shared Value – The Need for a Long-Term Perspective

Creating Share Value in Complex Environments:

Part I
Part II
Part III
Part IV

About the Author

Mark Jenkins advises clients on Corporate Social Responsibility (CSR), security and risk management issues affecting the viability of on and off-shore energy, mining and infrastructure sector projects in Europe, the Middle East and Africa. Mark’s experience has been focussed on creating reliable community support for projects through the development of a Social License to Operate (SLO) based on effective CSR initiatives. The success of these initiatives has been based on a thorough understanding of local environmental, commercial, and cultural dynamics, especially Islamic ones.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

For a PDF of this blog click here

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THE ENVIRONMENT (PRINCIPLES AND GOVERNANCE) BILL: ENVIRONMENTAL STANDARDS AFTER BREXIT

On 19 December 2018 the government published draft Clauses on Environmental Principles and Governance. These are supposed to address the arrangements for the effective enforcement of environmental laws in England after Brexit, when enforcement by the European Commission and the Court of Justice of the European Union will no longer be available.

Publication of the Clauses followed a consultation which produced over 175,000 responses. The Clauses, published as a draft Environment (Principles and Governance) Bill are intended to be part of a wider Environment Bill to be introduced in 2019, covering air quality, protection and enhancement of landscapes, wildlife and habitats, more efficient handling of resources and waste and better management of surface, ground and waste water.

The government now summarises its legislative proposals, made in pursuance of section 16 of the European Union (Withdrawal) Act 2018, as follows –

“The draft Environment (Principles and Governance) Bill sets out how the government will maintain environmental standards as we leave the EU. It also details how we will build on the vision of the 25 Year Environment Plan.

This includes creating an independent body – the Office for Environmental Protection (OEP) – which will-

  • scrutinise environmental law and the government’s environmental improvement plan (EIP)
  • investigate complaints on environmental law
  • take enforcement action on environmental law.

The draft Bill commits the government to publishing a policy statement which will set out how ministers should interpret and apply environmental principles. It also commits government to have a plan for environmental improvement.

The broader Environment Bill will also include measures on air quality, nature recovery, waste and resource efficiency and water management.”

By Brexit, the UK will lose  –

  • Treaty obligations reinforcing environmental laws;
  • Enforcement by the European Commission;
  • Enforcement by the Court of Justice of the European Union;
  • The ultimate sanction of EU Member States risking fines for continuing breaches of EU law;
  • Legal requirements on government to secure that penalties for breaches are “effective, proportionate and dissuasive” (see e.g. Water, Waste, Air Quality Framework Directives, REACH Regulation etc); and
  • Rights of individuals to activate enforcement of environmental laws, at no cost, through complaints to the Commission

In May 2018, Secretary of State EFRA, Michael Gove MP, declared that –

“Our new Environmental Principles and Governance Bill is designed to create a new, world-leading, independent watchdog to hold government to account on our environmental ambitions once we have left the EU. The role which has been played in the past by the EU Commission and courts should be filled now by a UK body embedded in the UK’s parliamentary democracy.”

The May 2018 consultation considered (para 137-8) that –

“Subject to the outcome of this consultation, we believe the most appropriate approach may be to create an independent body that will be accountable to Parliament…”

However in place of the robustly independent body, accountable to Parliament, that was proposed, the Office of Environmental Protection would under these clauses be appointed, and funded, by the same Secretary of State.

The Office of Environmental Protection would be able to issue an Information Notice, a Decision Notice, and eventually to make a “review application” to the High Court or Court of Session, and maybe to make a public statement about breaches of environmental law, but all mention of the powers of the European Commission to seek and the Court of Justice of the European Union to impose, a fine for non-compliance with environmental laws has been omitted.

The draft Clauses apply the environmental principles to the actions of Ministers and public authorities through the Secretary of State’s Policy Statement. It is the Policy Statement to which Ministers must have regard.  This allows much scope for Ministerial lobbying against enforcement action, and for re-interpretation of which principles should apply and how, instead of applying the principles directly to the discharge of functions by public bodies.

Three wide exemptions are driven through the scope and application of the Policy Statement on the application of Environmental Principles –

“The statement may not deal with policies relating to—

(a) the armed forces, defence or national security,

(b)  taxation, spending or the allocation of resources within government, or

(c)  any other matter specified in regulations made by the Secretary of State.

These exemptions appear unjustified, inconsistent with EU environmental law which the government has promised to transpose into national law, and inconsistent with the express ambition of the Secretary of State to have a “world-leading, independent watchdog to hold government to account on our environmental ambitions once we have left the EU”. There is a long way to go in amending these Draft Clauses before they can be said to deliver anything equivalent to the force and enforcement of EU environmental laws.

                                                         William Wilson, Prospect Law Ltd

About the Author

William Wilson is a specialist environmental, regulatory and nuclear lawyer with over 25 years experience in government, private practice and consultancy. He worked as a senior lawyer at the UK Department of the Environment/DETR/Defra, and helped to build up the environmental and nuclear practices at another major law firm, as well as running his own environmental policy consultancies. William has experience of all aspects of environmental law, including water, waste, air quality and industrial emissions, REACH and chemicals regulation, environmental protection, environmental permitting, litigation, legislative drafting, managing primary legislation, negotiating EU Directives and drafting secondary legislation.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

For a PDF of this blog click here

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AN ANALYSIS OF THE CONSULTATION ON AN ENVIRONMENTAL PRINCIPLES AND GOVERNANCE BILL: PART II

Perhaps unnoticed, Defra’s consultation on ‘Environmental Principles and Governance after the United Kingdom leaves the European Union’, is probably the most important consultation affecting environmental laws to be introduced for at least the last ten years. It goes right to the heart of how environmental laws will, or should, or may not be, enforced, after the UK leaves the EU.

The second part of this series addresses losses the UK may suffer in terms of environmental law enforcement once it leaves the EU, as well as the likely aims of bodies set up under the Environmental Principles and Governance Bill  and environmental justice concepts  in operation in  the USA.

What the UK will lose in terms of environmental law enforcement on leaving the EU

On top of the existing failures to deliver effective enforcement of existing laws, the U.K. will now, after Brexit, lose:

  • Treaty obligations reinforcing environmental laws;
  • enforcement by the European Commission;
  • enforcement by the Court of Justice of the European Union;
  • the ultimate sanction of Member States risking fines for continuing
    breaches of EU law;
  • the legal requirement upon government to ensure that penalties for
    breaches are “effective, proportionate and dissuasive”; and
  • the right of individuals to activate enforcement of EU environmental laws, at no cost, by raising complaints with the European Commission.

Environmental governance                                                                                              

Any body, or set of bodies, set up, under the U.K. government’s proposed Environmental Principles and Governance Bill and/or parallel legislation in the devolved Parliaments will need to aim to deliver a consistent approach to environmental law enforcement across the UK; to be independently financed, established by statute and answerable to Parliament(s); to have the right to take up and investigate individual citizen complaints of breaches or non-enforcement of environmental laws without the prohibitive costs of judicial review; and to be able to hold government and public bodies to account.

Issues of Environmental Principles

With respect to the principles covered by section 16 of the European Union (Withdrawal) Act 2018 , as a minimum:

(a) government and public bodies at all levels should have regard to them  when discharging their functions; and

(b) where they are already embedded in retained EU law, there should be a commitment by government to reflect that, and not to dilute their application.

Environmental Justice

In America, there are much better developed concepts of environmental justice in the way in which environmental laws and regulation are applied. As an example, the Presidential Executive Order for 1994 stated that:

…”to the greatest extent practicable and permitted by law…each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing as appropriate disproportionately high and adverse human health or environmental effects of its programs, policies and activities on minority populations or low-income populations.

Another way that this was explained to the author of this article, by Professor Robert Kuehn of Tulane University Law School was as follows:

The observation that most community environmental struggles are not won solely through the hands of lawyers is profoundly accurate. If equal enforcement of environmental laws is to be achieved, then all aspects of the enforcement process need to be opened up to residents of affected communities – their participation in making enforcement decisions must be sought out, their opinions and desires respected and addressed, and their ability to protect their own communities and police the facilities in those communities enhanced.”

Concepts of environmental justice, and the approach to law making and enforcement recommended there by Professor Kuehn, might well have helped to avoid some of the worst aspects of the Grenfell fire disaster. It may be time to consider what lessons there are to learn from American approaches to environmental justice when considering environmental governance in the UK.

The fundamental structures of enforcement of environmental laws are being re-designed from scratch. At a time of some legislative and constitutional turmoil, environmental lawyer, and those interested in effective environmental laws, need to identify what really matters, and to speak up for it.

Prospect Law Ltd, September 2018

About the Author

William Wilson is a specialist environmental, regulatory and nuclear lawyer with over 25 years experience in government, private practice and consultancy. He worked as a senior lawyer at the UK Department of the Environment/DETR/Defra, and helped to build up the environmental and nuclear practices at another major law firm, as well as running his own environmental policy consultancies. William has experience of all aspects of environmental law, including water, waste, air quality and industrial emissions, REACH and chemicals regulation, environmental protection, environmental permitting, litigation, legislative drafting, managing primary legislation, negotiating EU Directives and drafting secondary legislation.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

For a PDF of this blog click here