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Environmental campaigners win an important victory for access to justice

High Court says changes to cost rules in environmental court cases must be amended

And UN report says UK is “further away” from compliance with Aarhus Convention

October 13th 2017

Environmental campaigners won important concessions at the High Court last month concerning changes to the rules that govern environmental court cases, such as a legal challenge to a public body’s environmental policy. As we discussed in a previous article, the UK Government announced the changes last November and the new rules were introduced in February – see the concluding section ‘Moving the Goalposts: Limiting access to justice’ in ‘Future of EU Nature Directives still uncertain following appointment of new Environment Secretary’. The previous rules, which had been in force since April 2013, set a cap on the costs that a claimant would be liable to pay if they lost a legal challenge in an environmental court case. The costs were set at £5,000 for individuals and £10,000 for charities and non-governmental organisations; the defendant’s costs were also capped at £35,000. [1] The changes to the rules retain these figures as a “default” cap on costs. However, the changes also give judges the ability to increase or decrease the cap on costs at any time during a case, making the costs of mounting a legal challenge uncertain. Claimants bringing environmental cases to court are also obliged to provide more information on their financial circumstances, which could be disclosed to the court. [2]

These changes were challenged by the law firm Leigh Day, acting on behalf of a partnership of three organisations: the RSPB, Friends of the Earth, and environmental lawyers Client Earth. At an initial hearing at the High Court on Wednesday 19th July, David Wolfe QC, representing the three organisations, argued that the new rules did not follow the spirit of the Aarhus Convention, a UN agreement which the UK has signed and is designed to ensure access to justice for environmental cases. Client Earth said: “The UK government must ensure environmental cases are not prohibitively expensive and they must remove or reduce financial and other barriers to access to justice.” [3]

The Aarhus Convention

The full title of what is commonly referred to as the Aarhus Convention is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. It was formulated by the United Nations Economic Commission for Europe (UNECE) and adopted at a ministerial conference in June 1998, entering into force in October 2001. The objective of the Convention is stated in Article 1, which says: “In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party [to the Convention] shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.” [4] The provisions of the Convention cover those three broad areas: access to environmental information; public participation in environmental decision-making; and access to environmental justice.

The right of access to environmental information

On the first (access to environmental information), Article 4 of the Convention gives people the right to receive environmental information held by public authorities. The definition of “environmental information” is itself broad (the definitions are set out in Article 2), and includes information not only on environmental policies or the state of the environment but also on things such as the state of cultural sites and built structures, “inasmuch as they are or may be affected by the state of the elements of the environment” or, through these elements, by factors such as legislation, programmes, or development projects. Public bodies are also obliged to collect and disseminate environmental information, as stipulated in Article 5 of the Convention. [5]

The right to participate in environmental decision-making

On the second (public participation in environmental decision-making), Articles 6, 7 and 8 of the Convention gives everyone the right to participate in environmental decision-making, which include the “preparation of legally binding instruments”. Public authorities must make arrangements to enable non-governmental organisations and the general public to comment on proposals for plans, programmes and projects relating to or affecting the environment, and must take these comments into account in their decision-making. They must also provide information on their final decisions and their reasons.

Access to justice in environmental matters

On the third (access to environmental justice), Article 9 of the Convention gives people the right to challenge decisions made by public bodies when those decisions have not respected the two previous rights or have contravened environmental law in general. Paragraph 1 covers the right of access to a review procedure when requests for information under Article 4 have been denied. Paragraph 2 covers a similar right for those “members of the public concerned” who have a sufficient interest, or alternatively who maintain an impairment of a right, to challenge the legality of a decision (where the “public concerned” is defined as people affected by or likely to be affected by an environmental decision, or people having an interest in such a decision, including non-governmental organisations that promote environmental protection). Paragraph 3 gives members of the public the right of access “to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”

The reduction of “financial and other barriers to access to justice”

Paragraphs 4 and 5 of Article 9 are those aspects of the Convention that have featured prominently in the legal challenge. Paragraph 4 includes the statement that the procedures referred to in the previous paragraphs “shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive” [6] And Paragraph 5 says: “In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.”

Environmental campaigners said that the changes to the cost capping rules, introduced in February, bring uncertainty to the costs of making a legal challenge and will deter claimants pursuing a genuine case, which is contrary to Article 9 of the Aarhus Convention.

House of Lords Scrutiny Committee criticises the rule changes

The legislation that implemented the changes – the Civil Procedure (Amendment) Rules 2017 (SI 2017/95) – was scrutinised by the Secondary Legislation Scrutiny Committee of the House of Lords, which published a report of its findings on 23rd February. [7] A consultation on the changes was held towards the end of 2015. [8] The Committee’s report considers the response to this consultation submitted jointly by the RSPB, Friends of the Earth and Client Earth, and also considers the paperwork accompanying the legislation which the Ministry of Justice provided to explain the changes. Two significant observations emerge. Firstly, the report describes the Government’s intention to discourage “unmeritorious claims which cause unreasonable costs and delays to development projects.” However, the joint submission notes a failure of the Ministry of Justice to provide any evidence that the number of “unmeritorious claims” is a problem. The report continues:

“It provides data which shows that the number of Aarhus cases in 2014–15 was 153 which is on a par with the established average. They also comment that between April 2013 and March 2015, nearly half (an average of 48%) of environmental cases were granted permission to proceed in contrast with 16% of ordinary judicial review cases. Over the same period 24% of the environmental cases were successful for the claimant in contrast with 2% for all cases in 2014. All of which indicates, according to the submission, that environmental cases represent good value for money in comparison with mainstream judicial review cases.”

The second observation concerns the Government’s stated intention of “introducing more of a level playing field so that defendants are not unduly discouraged from challenging a claimant’s entitlement to costs protection.” However, the submission points out that the cap on costs affects only the claimant’s liability to pay the defendant’s costs, while the claimant’s own legal costs are not included. The report says that the Government’s stated intention “may escalate the claimant’s legal costs and act against the intention of the Aarhus Convention that the costs of environmental litigation should not be prohibitive.”

The report concludes that the Ministry of Justice “has not provided a convincing case for changing from the previous standardised system of cost capping, which was well understood, to this more complex system which appears to have significant potential to increase both the costs for public administration and the uncapped litigation costs of the claimant.” It continues:

“While asserting that the changes are to ‘discourage unmeritorious claims’, no figures are presented that illustrate the proportion of Aarhus claims that fall into that category. We are told that the financial impact on the public sector is minimal, so there does not appear to be a significant saving to the tax payer from these changes. Although the Ministry of Justice states that its policy intention is to introduce greater certainty into the regime, the strongly negative response to the consultation and the submission[s] received indicate the reverse outcome and that, as a result of the increased uncertainty introduced by these changes, people with a genuine complaint will be discouraged from pursuing it in the courts. The Ministry of Justice has not addressed any of these concerns in its paperwork and we therefore draw the matter to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation. We have also written to the Minister to express our concerns over the way that this policy change was presented.”

UN Report: UK has moved “further away” from compliance with the Aarhus Convention

The Government’s changes received another blow on the 28th July when the United Nations Economic Commission for Europe (UNECE) published a report concerning the UK’s compliance with its obligations under the Aarhus Convention, to be submitted to a meeting of the parties to the Convention in September (11th to 13th). The report summarises the findings of the Aarhus Convention Compliance Committee (ACCC), which notes a lack of progress on the part of the UK in meeting its obligations under Article 9 of the Convention. It makes a specific reference to the changes to the cost capping rules, saying that while the 2017 amendments introduced some positive improvements, overall they appear to have moved the UK “further away” from meeting the requirements of the Convention. [9]

The report requests the UK, as a matter of urgency, to take the necessary measures “to ensure that the allocation of costs in all court procedures subject to Article 9 is fair and equitable and not prohibitively expensive.” It also calls on the UK to “further consider the establishment of appropriate assistance mechanisms to remove or reduce financial barriers to access to justice” and “to establish a clear, transparent and consistent framework to implement Article 9, Paragraph 4, of the Convention.” Additional requests include a review of the time scale for bringing judicial review applications in Northern Ireland, and a request to “ensure that in future plans and programmes similar in nature to national renewable energy action plans are submitted to public participation as required by Article 7, in conjunction with the relevant paragraphs of Article 6 of the Convention.” The report also recommends that the UK “ensure that its Civil Procedure Rules regarding costs are applied by its courts so as to ensure compliance with the Convention.”

The Verdict of the High Court

On September 15th, the High Court delivered its verdict on the challenge to the new rules. Introducing the grounds for the challenge, Justice Dove prefaced his comments by describing the provisions of the Aarhus Convention and explaining that the Convention “is an unincorporated International Convention which has no direct effect in domestic law. Legal effect is however conferred upon the treaty to the extent that it has found expression in EU environmental legislation.” [10] Article 6 of the Convention (“public participation in environmental decision-making”) is contained within the EU Environmental Impact Assessment under the EU Directive 2011/92/EU, he said. He went on to explain that “provisions in relation to access to justice are contained both within the Environmental Impact Assessment Directive and the Industrial Emissions Directive in similar terms.” He then quoted Article 11 of the EU Environmental Impact Assessment Directive which essentially transposes extracts from Article 9 of the Aarhus Convention, including the statement on prohibitive costs (Paragraph 4), into EU law.

He then went on to explain that the new cost rules put in place a series of bespoke provisions “designed to give effect to the requirements of the Directives”. However, he continued, the EU Directives only cover those claims that are related to Article 9 Paragraph 1 or Article 9 Paragraph 2 of the Aarhus Convention. This means in fact that the extent of the costs protection under the new rules exceeds that which is required by EU law, because they include judicial review claims that fall within the scope of Article 9 Paragraph 3 of the Aarhus Convention. Justice Dove then described the grounds for the legal challenge, as follows:

“There are three Grounds raised by the claimants. The first Ground is that the provisions of the rules which enable a variation of the costs limits at any point in the litigation are in breach of the requirements of EU law as set out above. The second Ground is that it is unlawful for the 2017 Amendments to fail to provide for private hearings when a claimant or a third party supporter’s financial details may be discussed and examined at such a hearing. The third Ground is that the claimants seek a declaration that in the light of the CJEU jurisprudence [i.e. European Court of Justice case law] the claimant’s own costs of bringing the litigation should necessarily be included within the assessment of the financial resources of the claimant for the purposes of evaluating whether or not costs protection should be afforded and whether or not the proceedings are ‘prohibitively expensive’.” [Para 25]

Justice Dove then considers each ground in turn, beginning with a lengthy analysis of ground one. Speaking for the defendants (i.e. the Secretary of State for Justice and the Lord Chancellor), James Maurici QC argued at the initial hearing that the test of whether or not the purpose of the Directives was to be achieved was not certainty but “reasonable predictability”. Justice Dove accepts that argument in his judgement, but says that an application to vary the costs should be made at an early stage of the proceedings, thus giving “reasonable predictability” of the costs to the claimant. Concluding that stage of the argument, he says he is satisfied that the provisions of the cost rules “in relation to varying the default costs caps is consistent with the applicable EU law when considered in the context of the surrounding procedural rules and practices.” [Para 41]

Moving on to ground two, Justice Dove considers the circumstances in which a claimant’s financial details may be discussed in the course of an environmental court case. He says that the defendant has shown a willingness to amend the new rules to allow for hearings to be heard in private when the claimant is a private individual. The defendant has also said that if the claimant is a charity or a non-governmental organisation, they would only need to disclose aggregate amounts of third party support, which would avoid the necessity of providing information in relation to the size of individual donations. However, Justice Dove says, “it does not directly address the question of the identity of the sources of third party support.” Concerns have been expressed by charities that disclosing the identities of their supporters may deter future support, the result being less funds available to support legal cases and potentially deterring future claims, which would be in breach of the requirements to ensure a wide access to justice. “It follows,” says Justice Dove, “that I am satisfied that the concerns raised by the claimant under Ground 2 are legitimate.” He recommends that if a dispute about costs were to proceed to a hearing, then the rules should provide for that hearing to be held in private in the first instance. This would apply equally whether the claimant were a private individual or a non-governmental organisation. He also recommends that the rules be more specific about the nature and the content of the financial information required. [Para 57]

Moving on to ground three, Justice Dove discusses the question of what is generally held to be “prohibitively expensive” with reference to case law and what has come to be known as the Edwards principles, resulting from a previous decision of the European Court of Justice alluded to above (“the CJEU jurisprudence”). The ‘Edwards principles’ set out the criteria for deciding when costs can be held to be “prohibitively expensive”. In this regard, Justice Dove accepts the argument that the claimant’s own costs should be included in assessments of the claimant’s financial resources for the purposes of evaluating whether or not costs protection should be afforded and whether or not the proceedings are “prohibitively expensive”. [Para 59]

To summarise, Justice Dove accepted the principle that a cap on costs could be varied, but stipulated that this should happen at an early stage of the proceedings to give “reasonable predictability” of the costs to the claimant. On the second and third grounds, he accepted the arguments presented by David Wolfe QC, representing the RSPB, Friends of the Earth, and Client Earth. The changes to the rules will stay in place until the recommended amendments have been made.

“An important victory for access to justice”

The judgement was welcomed by environmental campaigners and by Leigh Day, the law firm representing the three organisations. Speaking for Leigh Day, solicitor Rowan Smith said: “This is a hugely important judgement for anyone who cares about the environment. We have achieved major concessions to the Government’s rules, which make it radically better for access to environmental justice and go a considerable way to allay legitimate concerns of a chilling effect on otherwise meritorious legal claims. Evidence before the court gave examples of successful legal challenges to protect birds, beavers and air quality, all which may not have been pursued under the new rules but for this landmark ruling.” [11]

In a joint statement, the three groups said: “Today’s verdict is an important victory in the battle for better access to justice in England and Wales. People who bravely stand up for nature by going to court can now do so in the knowledge that, once the costs are fixed, they will not be blindsided by a crippling legal bill they were not expecting and hadn’t budgeted for. Another victory from the hearing is that claimants will no longer have to reveal their private financial details in open court, as any hearing about costs protection limits will now take place in private. The Ministry of Justice must change its rules to include this, so that they are lawful.” [12]

Martin Harper, the RSPB’s Director of Conservation, said the judgement was vital in the light of the UK’s proposed exit from the EU. “Without oversight from EU institutions and with uncertainty of what will replace the European Court of Justice, it is down to UK citizens and organisations to challenge decisions affecting the environment,” he said. “This means that the protection of our air, water, countryside and wildlife will rely upon the courts, so everyone must be able to access them. The government is claiming that judicial review and parliamentary process are sufficient to replace the oversight of the EU. If people and charities are hindered by uncertain court costs, our environment could be at real risk.” [13]

Martin Harper also said that colleagues had attended the meeting of the parties to the Aarhus Convention in September, mentioned above, where “the UK conceded that it must take urgent action to make environmental legal action less expensive and more accessible.” And there was further good news, he said, this time from the House of Lords, where peers debated a motion from Lord Marks QC of Henley-upon-Thames that expressed profound regret at the changes to the costs regime. Martin Harper said the quality of the debate was inspiring, “with persuasive and passionate speeches from numerous Peers including the former RSPB Chief Executive Baroness Young, Baroness Parminter and Lord Pannick QC. The overriding theme was the recognition of the vital role that groups like the RSPB play in defending nature and the environment. The outcome was a defeat for the Government as the vote was carried by 164 votes to 97.” [14]

December Update – High Court orders Government to pay all legal costs

Environmental campaigners have secured a further victory, following a High Court decision to order the Government to pay all of the legal costs incurred by the three organisations, up to a cap of £35,000. The High Court also approved the rule changes which the Government was forced to make as a result of the previous ruling. In the order, issued at the end of November, Justice Dove states:

“I am unable to accept the defendant’s submissions that the claimants’ entitlement to costs should be reduced to 50% or some other figure. Whilst it is correct that in relation to Ground 1 the judgement did not lead directly to a quashing order it was necessary for the court to provide detailed analysis of the appropriate procedures to be followed to ensure compliance with EU law requirements. The claimants’ action in bringing the claim enabled the court to provide authoritative guidance in relation to the lawful approach to cost capping in the context of the changes made to the Civil Procedure Rules allowing for cost caps to be adjusted.” [15]

Speaking for Leigh Day, the law firm representing the RSPB, Friends of the Earth, and Client Earth, solicitor Rowan Smith said: “This order is significant in confirming the merit of the case we brought on behalf of the NGOs. The government had argued the claimants shouldn’t be entitled to their full legal costs. This order confirms the case was won beyond doubt by our clients, and also justifies the claimants’ push for the rule changes following the judgement. This case resulted in significant amendments to the Government’s costs rules, which will ensure better access to environmental justice and will go a considerable way to allay legitimate concerns of a chilling effect on otherwise meritorious legal claims.” [16]

The order was welcomed by the NGOs, who said it confirmed the justice of their case. Martin Harper, the RSPB’s Director of Conservation, said: “The judge awarded us our full costs in this case on the basis that such clarity is in everyone’s best interests and the interests of access to justice.” Client Earth’s lawyer Gillian Lobo said: “We brought this case because of the real uncertainty and chilling effect created by the government’s new costs rules for those who have to go to court to protect the environment. By ordering the government to pay the claimants’ full legal costs, the judge has reaffirmed the need for us to bring this case and our victory for access to justice.” [17]

And William Rundle, Friends of the Earth lawyer, said: “In the face of further government protestations the court has made it crystal clear that the claimants were right to bring this case, and so the government should pick up our full legal bill. Our claim has enabled an authoritative and detailed ruling, restricting how these new rules must work to be legal. This is a ‘big win’ for a more inclusive system for environmental cases in England and Wales, otherwise people with less money could have been excluded from accessing justice and clearly that’s wrong.” [18]

Acknowledgement

Photograph: Coat of Arms on the Royal Courts of Justice, London EC4 © Copyright Christine Matthews and licensed for reuse under this Creative Commons Licence.

Notes

[1] The changes were implemented by a statutory instrument, SI 2017 No.95 (L.1), The Civil Procedure (Amendment) Rules 2017, laid before Parliament on 3rd February 2017, which included other changes to Civil Procedure Rules that were unrelated to environmental cases. The legislation is available as a PDF document from: http://www.legislation.gov.uk/uksi/2017/95/pdfs/uksi_20170095_en.pdf. The legislation was accompanied by a memorandum that summarises the changes. See: Explanatory Memorandum to the Civil Procedure (Amendment) Rules 2017, available as a PDF document from: http://www.legislation.gov.uk/uksi/2017/95/pdfs/uksiem_20170095_en_001.pdf. The memorandum summarises the procedural changes to environmental cases as follows:

“The new provisions, like those they replace, start with a cap on the liability of an unsuccessful claimant in such a case to pay the defendant’s costs of £5,000 or £10,000 (depending on whether the claimant is an individual or not), and cross-cap on an unsuccessful defendant’s liability to pay the claimant’s costs of £35,000; but they differ in the following main respects: a) extending beyond judicial reviews to include statutory reviews (in particular planning challenges); b) allowing the court to vary the cap and cross-cap either up or down, provided always that any change does not render the cost of proceedings prohibitively expensive for the claimant (and requiring the change if the cost would be prohibitively expensive for the claimant without it); c) requiring the court, when assessing whether proceedings would be prohibitively expensive if the change is or is not made, to take into account a list of factors which mirrors those set out by the CJEU [Court of Justice of the European Union] in the Edwards case; and d) making specific provision for appeals requiring the court to apply the same principles on appeal as at first instance (as required by the Commission v. United Kingdom case).” [Para 7.5]

The ‘Edwards case’ refers to case law, relating to the criteria for deciding when costs can be held to be “prohibitively expensive”. The memorandum also explains that the Government was obliged to change the rules because of judgements by the European Court of Justice and the UK Supreme Court that the existing rules were not compliant with EU law [Ibid: Para 7.4].

[2] The reasons for the legal challenge are explained by Carol Day, solicitor with the law firm Leigh Day, in an article on Martin Harper’s RSPB blog (Leigh Day represented the three organisations who brought the challenge). See ‘Why the RSPB is contesting government plans to curb environmental legal challenges’, RSPB, 01/03/2017. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/03/01/government-curbs-environmental-challenges.aspx. See also this article by Client Earth: ‘New UK rules make it harder to bring environmental court cases’, Client Earth, 23/11/2016. Retrieved from: https://www.clientearth.org/new-uk-rules-make-harder-bring-environmental-court-cases/.

[3] ‘New government rules on environmental cases “move financial goalposts”, court hears’, Client Earth, 20/07/2017. Retrieved from: https://www.clientearth.org/new-government-rules-environmental-cases-move-financial-goalposts-court-hears/.

[4] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, done at Aarhus, Denmark, on 25 June 1998, United Nations Economic Commission for Europe (UNECE), 25/06/1998. Commonly known as the Aarhus Convention, the full text is available as a PDF document via this link to the UNECE website: https://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf.

[5] In its introduction to the Aarhus Convention, the EU says (with regard to Articles 4 and 5): “Applicants are entitled to obtain this information within one month of the request and without having to say why they require it. In addition, public authorities are obliged, under the Convention, to actively disseminate environmental information in their possession.” See ‘What is the Aarhus Convention?’ on the European Commission website at http://ec.europa.eu/environment/aarhus/. The Aarhus Convention is an international convention that has been incorporated indirectly into UK domestic law through EU environmental legislation. This includes: Directive 2003/4/EC, which covers public access to environmental information; and Directive 2003/35/EC, which covers public participation in environmental decision-making and also access to justice. Provisions for public participation in environmental decision-making are also included in a number of other environmental directives, such as Directive 2011/92/EU, the EU Environmental Impact Assessment. The European Commission has been a party to the Convention since May 2005, and the ‘Aarhus Regulation’ (EC No. 1367/2006) “addresses the ‘three pillars’ of the Aarhus Convention –access to information, public participation and access to justice in environmental matters –where those are of relevance to EU institutions.” The European Commission also adopted a Notice on Access to Justice in Environmental Matters in April 2017. The EC states: “The notice is a guidance document that clarifies how individuals and their associations can challenge decisions, acts and omissions by public authorities related to EU environmental law before national courts. The notice is based on decisions of the Court of Justice on how national courts should address questions of access to justice related to EU environmental legislation. The scope is limited to access to justice in relation to decisions, acts and omissions by public authorities of the Member States. It does not address environmental litigation between private parties. Nor does it concern the judicial review of acts of the EU institutions.” For the details of this and other relevant legislation, see ‘The EU & the Aarhus Convention: in the EU Member States, in the Community Institutions and Bodies’ on the European Commission website at http://ec.europa.eu/environment/aarhus/legislation.htm.

[6] Ibid: see [4]. The full wording of paragraph 4 is: “In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.”

[7] ‘Secondary Legislation Scrutiny – Instrument drawn to the special attention of the House: Civil Procedure (Amendment) Rules 2017 (SI 2017/95)’, in House of Lords – Twenty Fifth Report of Session 2016-17, HL Paper 114, 23/02/2017. Retrieved from: https://publications.parliament.uk/pa/ld201617/ldselect/ldsecleg/114/11403.htm.

[8] In its Explanatory Memorandum to the Civil Procedure (Amendment) Rules 2017, Para 8.2, the Ministry of Justice reports on the consultation as follows: “The consultation ‘Costs Protection in Environmental Claims: Proposals to revise the costs capping scheme for eligible environmental cases’ was published on 17 September and closed on 10 December 2015. The Ministry of Justice received 289 responses. Of these, 207 (around 70%) were from individuals. Half of these (103) used a template response prepared by Friends of the Earth and disagreed with the proposals in the consultation, as did the majority of responses received from other individuals. It appears that almost all the responses were received from potential claimants, or those acting on their behalf. The Government had to balance the interests of claimants and defendants (including the Government and its agencies) in the light of case law. A response to the consultation was published on 17 November 2016 (the consultation document and the Government response, together with an impact assessment, are at https://consult.justice.gov.uk/digital-communications/costs-protection-inenvironmental-claims/). In the light of responses received, the Government decided not to proceed with some of the proposals, but concluded that implementing others would ensure compliance with domestic and EU legal obligations.” [Ibid: see Note 1]

[9] ‘Draft decision VI/8k concerning compliance by the United Kingdom of Great Britain and Northern Ireland with its obligations under the Convention’, United Nations Economic Commission for Europe (UNECE), 28/07/2017. Retrieved from: https://www.unece.org/fileadmin/DAM/env/pp/mop6/Documents_aec/ECE.MP.PP.2017.30_aec.pdf. The ‘positive improvements’ presumably refer to the extension of the cost rules to include statutory reviews of planning decisions (i.e. as well as judicial reviews of decisions made by public authorities), and the specific provisions for appeals (see Note 1). However, the amendments have not addressed the issue of private nuisance claims. The UNECE report says that “by failing to ensure that private nuisance proceedings within the scope of Article 9 Paragraph 3 of the Convention, and for which there is no fully adequate alternative procedure, are not prohibitively expensive, the Party concerned [i.e. the UK] fails to comply with Article 9 Paragraph 4 of the Convention.” The report goes on to recommend “that the Party concerned review its system for allocating costs in private nuisance proceedings within the scope of Article 9 Paragraph 3 of the Convention and undertake practical and legislative measures&hellip to ensure that such procedures, where there is no fully adequate alternative procedure, are not prohibitively expensive.” Those recommendations have yet to be acknowledged, as Client Earth pointed out in ‘New UK rules make it harder to bring environmental court cases’ [Ibid: Note 2]. The expanded definition of an Aarhus claim, they say, “does not extend to the full range of claims that come under Article 9(3). This would include decisions to change land use in a national park, the location of solar energy developments, and private nuisance claims. This means the UK will continue to be in breach of access to justice international obligations.”

The issue of private nuisance claims in relation to the Aarhus Convention has been discussed by the barrister David Hart QC on the UK Human Rights Blog. The protections under the Convention are not limited to public law proceedings, he says. Article 9(3) applies to “acts and omissions by private persons and public authorities which contravene national law relating to the environment,” and Article 9(4) (on prohibitive costs) applies to all such procedures [Ibid: Note 4]. However, says David Hart, “despite those words in Art.9(3), the Government has tried to draw a distinction between public law cases and environmental cases raising private law issues such as in the private law of nuisance. For non-lawyers, a private nuisance is when you get stunk out of your home or driven to complain to the police about next door’s noise or when your neighbour funnels polluted water across your land or sends clouds of dust onto your garden or washing.” He then goes on to illustrate the issues that can arise from such cases by discussing some real-life scenarios, one problem being that private nuisance claims can be prohibitively expensive; therefore, only “the most wealthy people” can afford to initiate proceedings. See ‘Government still ignoring private nuisance claims’, David Hart QC, UK Human Rights Blog, 26/01/2017. Retrieved from: https://ukhumanrightsblog.com/2017/01/26/aarhus-convention-update-government-still-ignoring-private-nuisance-claims/.

[10] England and Wales High Court (Administrative Court) Decisions, EWHC 2309 (Admin), Case No: CO/1011/2017, Royal Courts of Justice, 15/09/2017. The Royal Society for the Protection of Birds, Friends of the Earth Ltd & Client Earth (Claimants) v Secretary of State for Justice & the Lord Chancellor (Defendants). For the full text of the judgement, see the BAILLI website at http://www.bailii.org/ew/cases/EWHC/Admin/2017/2309.html. The quote is from Paragraph 8.

[11] ‘NGOs win legal battle over access to environmental justice’, Leigh Day, 15/09/2017. Retrieved from: https://www.leighday.co.uk/News/News-2017/September-2017/NGOs-win-legal-battle-over-access-to-environmental.

[12] ‘Victory for UK environment as judge says cost rules must change’, Client Earth, 15/09/2017. Retrieved from: https://www.clientearth.org/victory-environment-judge-says-cost-rules-must-change/.

[13] ‘Good news from last Friday: an important victory in the battle for better access to environmental justice’, Martin Harper, RSPB, 21/09/2017. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/09/21/good-news-from-last-friday-an-important-victory-in-the-battle-for-better-access-to-environmental-justice.aspx.

[14] According to Hansard, the vote was in fact carried by 142 votes for, 97 votes against (not 164 votes for, as suggested). See ‘House of Lords Hansard – Civil Procedure (Amendment) Rules 2017’, 13 September 2017, Volume 783. Motion to Regret. Moved by Lord Marks of Henley-on-Thames. Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee, Session 2016–17. Retrieved from Hansard at: https://hansard.parliament.uk/Lords/2017-09-13/debates/F39F0795-CF5D-47EB-9055-90108FFC5C48/CivilProcedure(Amendment)Rules2017.

[15] ‘High Court approves rule changes and orders government to pay legal costs in NGOs’ access to environmental justice case’, Leigh Day, 04/12/2017. Retrieved from: https://www.leighday.co.uk/News/News-2017/December-2017/High-Court-approves-rule-changes-and-orders-govern. The article provides a legal detail that the 15th September judgement fails to mention in relation to the grounds for the challenge: “The NGOs had challenged the compatibility of the new rules with Article 3(7) of the Public Participation Directive 2003/35/ED, because they failed to provide: (i) at the earliest stage possible, certainty for claimants as to their costs exposure; and (ii) mandatory private hearings into a claimant’s financial resources (including to protect the identity of donors).”

[16] Ibid: Note 15.
[17] Ibid: Note 15.
[18] Ibid: Note 15.

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Air Pollution in the UK – Seven years of illegal NO2 emissions

UK Government publishes its latest plans to tackle air pollution

But compliance with legal limits is still a distant prospect

August 21st 2017

The UK Government has published its latest plans to tackle air pollution, following a long-running legal battle over its failure to comply with EU standards for air quality. The plans were published by the Department for the Environment, Food and Rural Affairs (Defra) and the Department for Transport on 26th July and focused on curbing roadside nitrogen dioxide (NO2) concentrations. In a press release, the Government announced that a comprehensive Clean Air Strategy will be published next year which will outline its plans to tackle other sources of air pollution. [1] The press release highlights the Government’s intention to end the sale of all new conventional petrol and diesel vehicles by 2040, whilst the current strategy on curbing NO2 levels places the onus on local authorities to produce action plans.

Client Earth v. UK Government: A seven-year legal battle

The UK Plan for Tackling Roadside Nitrogen Dioxide Concentrations is the latest development in a seven-year legal battle between the UK Government and the environment law firm Client Earth, which began in 2010 as a collaborative venture with the campaign group Clean Air in London. [2] In an initial response to the latest plan, Client Earth has described it as lacking in urgency and apparently “little more than a shabby rewrite of the previous draft plans.” [3] Anna Heslop, one of the firm’s air quality lawyers, said: “Successive governments have failed to protect us from illegal air quality. We’ve had to return repeatedly to court to challenge the Government on its weak and incoherent air quality policies and yet, seven years on, we are still having to fight to protect people’s health.” [4]

Should the lawyers take further court action, it will be the eighth time that Client Earth has taken the UK Government to court over its plans to curb NO2 emissions. In summary, the legal saga is as follows:

• 2011: High Court
• 2012: Court of Appeal
• 2013: UK Supreme Court
• 2014: European Court of Justice
• 2015: UK Supreme Court
• 2016: High Court
• 2017: High Court

What follows is the background to the latest plans. This legal saga can best be summarised as a history of missed deadlines, deliberate procrastination, and persistence on the part of the UK Government in its refusal to comply with EU law. Its air quality plans have repeatedly been deemed unlawful by the courts, and the Treasury has been consistent in having the final say, placing economic and political considerations above public health.

January 2010: UK misses deadline for legal limits of NO2 emissions

The legal battle began in 2010 as a response to the UK’s failure to meet the requirements of the EU’s Ambient Air Quality Directive which came into force in 2008. The 2008/50/EU Directive forms part of a body of legislation which sets out health-based standards and targets for a number of pollutants, including nitrogen dioxide, sulphur dioxide, carbon monoxide, lead, benzene, and fine particles known as particulate matter. Under EU law “a limit value is legally binding from the date it enters into force subject to any exceedances permitted by the legislation.” [5] The limit value for nitrogen dioxide (NO2), which came into force on January 1st 2010, is 40µg/m3 (40 micrograms per cubic metre), taken as the average measure over a twelve-month period. A recent report on the implementation of the Directive says that NO2 levels at the most polluted traffic site in London (Marylebone Road) were well above 100μg/m3 in the period 2003 to 2009. [6] In 2013, NO2 annual mean concentrations of 85μg/m3 were recorded. In short, the levels have been well over the legal limit of 40µg/m3, which should have been met by the start of 2010.

The impact of diesel

A recent study by the Royal College of Physicians says that every year in the UK “around 40,000 deaths are attributable to exposure to outdoor air pollution” [7] Air pollutant emissions from road traffic are generally held to be the main source of the problem, with diesel vehicles in particular being the main source of NO2 emissions. The irony here is that in 2001 the Labour Government adopted measures to boost the sale of diesel vehicles on the grounds that this would cut carbon emissions and help to reduce the effects of climate change. Martin Goodman reports that the Government published guidance on NO2 levels in 2004, in which it claimed “the UK Air Quality Strategy aims to achieve its objectives earlier than the EU has set.” However, this optimism was based on old data which showed a 37% fall in NO2 emissions in the decade up to 2000, with the expectation of a further 25% fall by 2010. The calculations did not foresee the impact of the increased use of diesel. [8]

2011–2012: High Court judges say enforcement of legal requirement is a matter for the European Commission

The legal case first appeared before the High Court in 2011, with Client Earth launching a judicial review of the failure by the Secretary of State for the Environment, Food and Rural Affairs to comply with the legal limits for NO2 emissions as set out in the Directive. The judge presiding over the case found that the Government was indeed in breach of a legal requirement, but declined to rule on any remedy, saying that enforcement was a matter for the European Commission. In May 2012, Client Earth appealed to the Court of Appeal, but the Court upheld the decision of the High Court judge. [9]

2013: UK Supreme Court seeks advice from European Court of Justice

In 2013, however, Client Earth submitted an appeal to the newly formed Supreme Court, and the court found in Client Earth’s favour. The Court ruled that the UK Government was in breach of a legal duty to comply with NO2 limits in 16 cities and regions, including Manchester, Birmingham and Glasgow, as well as London. As for what action should be taken, the Court then sought advice from the European Court of Justice regarding the provisions of the Air Quality Directive and the role of national courts in providing appropriate remedies.

2014: European Court of Justice considers “the longest-running infringement of EU law in history”

The European Court of Justice considered a body of evidence in compiling its advice, including the available data on NO2 levels. Martin Goodman says scientists from King’s College London set up a monitoring station in Oxford Street which recorded an average level of 135μg/m3 in 2014, whilst a daytime reading peaked at 463μg/m3. As for the Government’s response: “Lawyers from the European Commission told the European judges that they were considering perhaps the longest-running infringement of EU law in history.” [10]

UK Government hopes to reach compliance by 2025… or 2030…

The provisions of the Air Quality Directive say that member states can apply for an extension of up to five years to meet limiting values in a specific zone, subject to an assessment by the Commission. [11] However, the Government had already missed its 2010 deadline and said to the EU that it was unable to meet the next deadline of January 1st 2015. It was hoping to reach compliance by 2025, but then admitted that the target for NO2 levels in London, Leeds and Birmingham would not be met until 2030. [12] The European Court of Justice delivered its ruling in November 2014. The judgement said that the UK was legally obliged to mitigate air pollution and was “wholly adrift of all procedures to fit such compliance to the given deadlines. Furthermore, it must produce a plan to keep the period in which NO2 pollution was breaking legal limits ‘as short as possible.'”

April 2015: UK Supreme Court orders Government to take urgent action on air pollution

The decision was sent back to the UK Supreme Court, which delivered its verdict in April 2015: “The Supreme Court unanimously orders that the Government must submit new air quality plans to the European Commission no later than 31st December 2015.” [13] The Supreme Court also demanded urgent action on the part of the Government with regard to NO2 levels, without setting a deadline for compliance. However, the parties were granted permission to return to the High Court for clarification of the order, with particular regard to the terms ‘urgent’ and ‘as soon as possible’ and how they were to be understood. A press release from Client Earth said: “The Supreme Court ruling means the Government must start work on a comprehensive plan to meet pollution limits as soon as possible. Among the measures that that it must consider are low emission zones, congestion charging, and other economic incentives. Client Earth is calling for action to clean up the worst polluting diesel vehicles, including through a national network of low emission zones.” [14]

December 2015: the UK Government continues to defy EU law on NO2 limits

Defra published a draft plan in September 2015. In response, Client Earth released a series of press statements which criticised the Government for a lack of joined-up thinking, saying that the Department for Transport and DECC (the now defunct Department for Energy and Climate Change) had failed to make any assessment of the impact on air quality when making major policy decisions, whilst Defra’s draft plans, published as a consultation document, did not meet the demand for immediate action:

“The Supreme Court ordered Liz Truss to come up with a plan to achieve legal levels of air quality as soon as possible. Instead, even under the Government’s own projections, many cities in the UK will still have illegal levels of diesel fumes until 2020 and beyond. In London the problem is even worse – Defra projections say the legal levels of air pollution will not be reached until 2025. The plans contain only one new national measure: ‘clean air zones’ which would restrict older vehicles entering the most polluted city centres – but leaving it up to overstretched and underfunded local authorities to implement them. We therefore don’t have any idea if or when these clean air zones will ever materialise.” [15]

Treasury reduces Defra’s plans for Clean Air Zones

Following the consultation period, the Government’s plans were finally published on 17th December 2015. The plans repeated much of what was said in the draft. So the Government had responded to the Supreme Court ruling by producing an air quality plan by the end of the year deadline, but the plan was to reach compliance with the EU’s limit values for NO2 by 2025. Client Earth said this amounted to a total defiance of the Air Quality Directive, the European Court of Justice, and the UK Supreme Court. According to Martin Goodman, government ministers had been advised by Defra’s head of air quality to implement clean air zones, which would bring forward compliance with EU NO2 limits “by directly removing the dirtiest vehicles from hotspot areas and by encouraging people to swap polluting vehicles for less polluting ones.” [16] However, the Treasury reduced Defra’s plans for 16 clean air zones outside of London to 5 (Birmingham, Derby, Leeds, Nottingham and Southampton), and also blocked an increase in charges for driving in city centres. [17] Client Earth responded to the plan’s publication with an announcement that the Government would face further legal action. The firm’s principal air quality lawyer, Alan Andrews, said: “The Government seems to think that the health of people in cities like Glasgow, Manchester and Bristol is less important than that of people in London. While London gets a clean air zone covering all vehicles, Birmingham gets a second class zone and Derby and Southampton third class, while other areas including Manchester and Liverpool are left out. We all have the same right to breathe clean air.” [18] The new legal challenge was launched in March 2016 when Client Earth lodged papers at the High Court, seeking a judicial review of the Government’s plans. [19]

April 2016: MPs declare UK air pollution to be a “public health emergency”

In April 2016, the Environment, Food and Rural Affairs (Efra) Select Committee, which oversees the work of Defra, published a report on the state of air pollution in the UK and the Government’s attempts to tackle it, declaring that the situation amounted to a “public health emergency.” [20] The cross-party group of MPs called on the Government to introduce a scrappage scheme for old diesel vehicles which would target those older than ten years of age and offer drivers financial incentives to trade them in. The Efra report also says that UK ministers should argue robustly with the EU to set lower limits for nitrogen oxide emissions from new vehicles, as the EU’s ‘real world’ tests, to be implemented from 1st September 2017, would set initial emission limits that are twice as high as previous laboratory test levels and set limits into the 2020s which are 50% higher. [21] The report also reiterates Client Earth’s criticism of the lack of joined-up thinking from government departments: “Despite mounting evidence of the costly health and environmental impacts of air pollution, we see little evidence of a cohesive cross-government plan to tackle emissions.” The report says that the inter-ministerial ‘Clean Growth Group’, which is meant to be co-ordinating efforts to tackle air pollution, is seen as secretive and “does not publish information on its meetings, outcomes or action plans.”

May 2016: London Mayor Sadiq Khan joins Client Earth’s legal challenge

In May 2016, newly-elected London Mayor Sadiq Khan announced his intention to submit statements and evidence in Client Earth’s forthcoming legal case at the High Court. Speaking to the Guardian’s environment correspondent Damian Carrington, he said: “The government’s current air quality plan with respect to London is based on the very limited ambition of the previous mayor to tackle air pollution and isn’t enough to protect Londoners’ health.” [22] Earlier that month, the Guardian had revealed that Boris Johnson, Sadiq Khan’s predecessor, had commissioned a report on air pollution in London but the report had remained unpublished since its completion in 2013. The report showed that 433 schools in London are in areas that exceed legal limits for NO2 pollution and that 80% of those schools are in deprived areas. [23] On taking up his post as mayor, Sadiq Khan set out new plans to tackle London’s air pollution problem, which included doubling the size of the ‘Ultra Low Emission Zone,’ which Boris Johnson had planned to implement by 2020, and retrofitting 1,000 more buses with cleaner technology. Older, dirtier diesel vehicles will be charged £12.50 to enter the low emission zone. Sadiq Khan said to the Guardian: “It’s clear we need to speed up our efforts so I’m calling on government to match my new level of ambition for London and to work with me to improve our city’s dirty air and to make sure we get within legal limits much sooner – before the current target of 2025.” [24]

November 2016: Judicial Review finds Air Quality Plan is based knowingly on flawed data

Client Earth’s case was heard at the High Court in October 2016. In delivering the Court’s ruling, Mr Justice Garnham agreed with Client Earth that the Environment Secretary had failed to take measures that would bring the UK into compliance with the law “as soon as possible.” The judgement, published on 2nd November, said that the Government’s 2015 Air Quality Plan failed to comply with the Supreme Court ruling or relevant EU Directives and found that the Government had erred in law by setting compliance dates based on an over-optimistic modelling of pollution levels, using lab tests which they knew to be flawed. Instead of identifying measures that would achieve compliance as soon as possible, “it identified measures which, if very optimistic forecasts happened to be proved right and emerging data happened to be wrong, might achieve compliance. To adopt a plan based on such assumptions was to breach both the Directive and the Regulations.” [25] The judge said it was remarkable that the Government had acknowledged that its plan was built around a forecast based on figures which emerging data was undermining and that “if higher, more realistic, assumptions for emissions are made, the number of zones which will not meet the limit value in 2020 increases substantially.” [26]

Evidence suggests the Government’s timetable is motivated by the prospect of EU fines

The judge also commented on ministerial correspondence which suggested “that a principal driving factor in selecting 2020 was not the obligation to remedy the problem as soon as possible but to remedy it in time to avoid EU infraction proceedings.” [27] The correspondence said: “In developing potential measures for the plans we have used projected exceedances in 2020 as the basis for defining the worst areas. This is based on our understanding that 2020 is likely to be the earliest the EU will move to fines.” The judge said that, while there can be no objection to a member state having regard to cost when choosing between two equally effective measures, or when deciding which organ of government should pay, he rejected “any suggestion that the state can have any regard to cost in fixing the date for compliance or in determining the route by which the compliance can be achieved where one route produces results quicker than another.” [28] He continued: “In those respects the determining consideration has to be the efficacy of the measure in question and not their cost. That, it seems to me, flows inevitably from the requirements in the Article to keep the exceedance period as short as possible.”

Back to the drawing board

The ruling was welcomed by Client Earth whose air quality lawyer Alan Andrews said in a press statement: “We need a national network of clean air zones to be in place by 2018 in cities across the UK, not just in a handful of cities. The Government also needs to stop these inaccurate modelling forecasts. Future projections of compliance need to be based on what is really coming out of the exhausts of diesel cars when driving on the road, not just the results of discredited laboratory tests.” [29]

For the Government, it was a case of ‘back to the drawing board.’

UK Government is ordered to produce a draft plan by 24 April 2017…

The deadlines for the Government were delivered by Mr Justice Garnham at the High Court on 21st November. The judge, rejecting the Government’s suggested timetable of September 2017 to produce a final plan, ordered the Government to produce a draft plan by 24th April 2017 and a final one by 31st July 2017. The judge also requested that the Government publish the technical data on which it was basing its plans, and gave Client Earth permission to return to the High Court should there be any further problems with the draft plan. Responding to the ruling, Alan Andrews said that a total of 37 out of 43 zones in the UK had illegal levels of air pollution, and argued that a national network of clean air zones must be part of the Government’s plans, which meant far more than the six which were currently planned. [30]

But on 21 April 2017 the UK Government wants an extension

Following the PM's decision to call a general election on 8th June, the Government then made a last-minute attempt to delay publication of the draft plan, seeking 30th June and 15th September as the new deadlines. The application to the High Court was submitted late on Friday 21st April after the court had closed, and shortly before the original deadline of 4pm on Monday 24th April. Mr Justice Garnham ordered a hearing into the application for Thursday, 27th April. At the hearing, the Government claimed that "purdah rules" meant that they could not publish the plans until after the general election, but was forced to concede that the delay could have an impact on the implementation of measures to reduce air pollution "as soon as possible." Client Earth argued that air pollution was a matter of public health not politics. The judge agreed, but accepted that purdah rules would affect the local elections on 4th May. He ordered the Government to produce the plans by the new deadline of 9th May. The 31st July deadline remained in force. [31]

May 2017: Draft plans are “weak and incoherent”

The draft plans were finally published for consultation on 5th May, while the results of the local elections were still being counted. Client Earth’s CEO James Thornton gave an immediate response, saying the plans were weak and incoherent, and that the UK would still be faced with illegal air quality for years to come under the proposals: “We fail to see how the non-charging clean air zones, proposed by the Government, will be effective if they don’t persuade motorists to stay out of those areas. The Government seems to be passing the buck to local authorities rather than taking responsibility for this public health emergency,” he said. He also noted that the Government had failed to make any commitments to a diesel scrappage scheme. [32]

A flawed consultation

The draft plans were accompanied by a public consultation which ran from 5th May to 15th June. But on 31st May Client Earth said that the consultation did not include measures which the government’s own technical data showed were the best way to bring down air pollution as soon as possible. In particular, the evidence showed that a network of clean air zones which charged the dirtiest diesel vehicles for entering the most polluted areas of the UK would be the most effective solution, but the draft plans did not set this out as a proposal. Client Earth’s lawyers had written to Defra seeking improvements to the draft, but Defra had refused to modify the consultation. James Thornton said the consultation was flawed and that Client Earth would be seeking a ruling from the High Court on this issue. “The government’s plans and consultation do not match what its own evidence says needs to happen,” he said. “If the evidence shows that taking certain measures will be necessary to tackle the public health crisis of polluted air, then the plans and associated consultation needs to make that clear.” [33]

July 2017: Back to the High Court

A hearing at the High Court was set for Wednesday 5th July. Mr Justice Garnham ruled that the draft plan in itself was not unlawful, but suggested that the final plan could well be open to legal challenge if it did not deal with some of the concerns presented by Client Earth. [34] The judge also stated that any alternative measures to meet air quality limits would have to be equally effective or more effective than a clean air zone that charged polluting vehicles for entering.

The final plan was published on 26th July.

A “highly localised” problem, says Government

We return now to this latest plan, the UK Plan for Tackling Roadside Nitrogen Dioxide Concentrations. In its press release, the Government’s use of statistics reduces the problem of air pollution to a relatively minor proportion of the country’s roads. It says that NO2 levels have decreased by 50% in the last 15 years, but 4% of Britain’s major roads (81 out of 1,800) are due to breach legal pollution limits for NO2, including 33 outside of London. Consequently, the Government’s press release describes NO2 pollution as a highly localised problem and places the burden on local authorities to sort this out: “Due to the highly localised nature of the problem, local knowledge will be crucial in solving pollution problems in these hotspots,” it says. [35]

Local authorities must take “robust action”

The Government says it will be providing towns and cities with £255m to implement local plans. Local authorities will be asked to produce initial plans within eight months and final plans by the end of 2018. Local councils “with the worst levels of air pollution at busy road junctions and hotspots must take robust action,” with the aim of delivering roadside NO2 compliance “in the fastest possible time.” In addition to the £255m implementation fund, the Government has also announced a new Clean Air Fund, the details of which will be announced later this year. The aim of the Clean Air Fund is “to support improvements which will reduce the need for restrictions on polluting vehicles.” Local authorities will be invited to bid for funds to carry out these improvements. The measures could include reducing congestion by changing road layouts or removing traffic lights and speed humps; upgrading bus fleets with new low emission buses or retrofitting older buses with cleaner engines; encouraging the uptake of ultra low emission vehicles; and introducing concessionary travel schemes and new park and ride services. A consultation is expected in the autumn to gather views on measures to support those affected by local plans, such as a targeted scrappage scheme for car and van drivers.

Charging polluting vehicles should be a last resort, says Government

The Government says local authorities should only consider restrictions on polluting vehicles if their action plans are insufficient to ensure legal compliance, and charging should only be considered as a last resort. In addition, “restrictions or charging on polluting vehicles should be time-limited and lifted as soon as air pollution is within legal limits and the risk of future breaches has passed.”

£2.7bn to improve air quality

The Government says it is committing £2.7bn in total to reducing vehicle emissions and improving air quality, including investments in the development and manufacture of ultra low emission vehicles, and a £100m Clean Bus Technology Fund grant scheme to fund new buses and retrofitting older buses, £40m of which was being made available immediately. A ring-fenced Air Quality Fund of £100m has been allocated to Highways England to help improve air quality on the national road network as part of the Government’s Road Investment Strategy. The fund will be available to 2021 and an article in the Independent reveals how Highways England may spend part of the money, following the publication of its air quality strategy. [36]

Highways England’s air quality strategy, published on 2nd August, says “emissions from diesel vehicles are a significant contributor to the poor air quality at the roadside” and contributes around 77% of the NO2 close to the motorway network. [37] The agency is investing in a three-year programme from 2015 to 2018 which will deliver around 50 continuous monitoring stations across the road network to provide real time air quality information. It is also exploring the possibility of using physical barriers to pollution by testing a a new polymer material with the potential to clean the air. If the tests are successful, it will consider using the material to build canopies which would cover stretches of its road network. The agency says it started trialling a physical air quality barrier in 2015 which covered a 100-metre stretch of the M62, “initially 4 metres high and raised to 6 metres in early 2016.” It then carried out a trial of a barrier incorporating an innovative polymer material with the potential to absorb NO2. The strategy document says: “We are using these trials to investigate if barriers can help contribute to improving air quality for our neighbours. The results from the monitoring of such trials will help us understand if this has been a success with the potential to implement barriers on our network. We are also investigating if we can reduce the costs to construct a canopy, which is a tunnel-like structure designed to prevent vehicle emissions reaching our neighbours, to make this a viable solution.”

The agency has also set a target of putting a charging point for ultra low emission vehicles every 20 miles on 95% of the road network. However, according to the Independent, the Automobile Association has expressed concern over the pressure a nation of electric cars would place on the National Grid, with a warning “it would have to cope with a mass switch-on after the evening rush hour,” whilst other estimates have suggested around 10 new power stations would need to be built to deal with the increased demand. [38]

The breakdown of the Government’s £2.7bn is detailed in its press release. [39]

Client Earth seeks urgent clarification on the Government’s plan

Reactions to the Government’s latest plans have been overwhelmingly critical. Client Earth’s CEO James Thornton issued a quick response, describing them as little more than a shabby rewrite of the previous draft plans, as mentioned above. “This plan is, yet again, a plan for more plans,” he said. “The Government is passing the buck to local authorities to come up with their own schemes as an alternative to clean air zones which charge the most polluting vehicles to enter our towns and cities. Yet Defra’s own evidence shows that charging clean air zones would be the swiftest way to tackle illegal levels of pollution.” [40] He highlighted the lengthy timetable for local authorities to develop their plans, the lack of attention to devolved regions, and described the 2040 diesel and petrol ban as a diversion because it failed to deal with the immediate problem of NO2 levels.

Last week, Client Earth wrote to Defra seeking urgent clarification on the plans. In particular, the letter asks for clarity on the guidance given to local authorities concerning how they will evaluate the best ways of bringing air pollution down as soon as possible, “as well as how ministers will ensure that air quality limits are met across England.” [41] Client Earth is also seeking clarity on how Defra will assess plans from the 23 local authorities and how quickly this will be done.

What about the devolved regions?

The law firm has also written to the devolved governments of Wales and Scotland, seeking clarification on their plans. Writing in theHolyrood Magazine, Liam Kirkaldy reports that there are currently 38 Pollution Zones in Scotland, which councils have said are at risk of dangerous levels of air pollution. [42] The number has risen from 35 in 2015. Client Earth has warned that “unless ministers take tougher action then Aberdeen and Edinburgh will not meet legal limits until 2020, and Glasgow will not comply until 2024.” The Scottish Government has published a proposal to trial a first Low Emission Zone in one Scottish city, and Client Earth questions how this will help reduce dangerous levels elsewhere. In a letter to the Scottish Government, the lawyers have asked for “further information on how limit values will be met in the shortest time possible in all parts of Scotland.”

Plan criticised by local authorities

The Government’s plan has been criticised by local authorities, politicians, environmental campaigners, and health experts. According to the Guardian, the leaders of Liverpool, Leeds, Birmingham, Southampton, Leicester and Oxford city councils have written to the Environment Secretary Michael Gove, calling for urgent legislation and a comprehensive scrappage scheme to encourage people to give up diesel vehicles. [43] The plan proposes a limited version of a scrappage scheme targeted at those who most need support, such as people on lower incomes or those living in the neighbourhood of a clean air zone. The letter says that the “updated clean air plan, while indicating long-term ambition, still lacks some specific actions that would enable us to meet the legal limits and establish safer air sooner rather than later.” The article by Rowena Mason and Damian Carrington says that Sheffield Council has called the report “woefully inadequate,” with Jack Scott, cabinet member for transport, reportedly saying he was “highly sceptical that the Government’s announcement even meets their legal duties on air quality.”

Ban on diesel is “highly symbolic”

BBC News reports that Liberal Democrat and former energy secretary Ed Davey described the lack of a scrappage scheme as a “shameful betrayal” of diesel car drivers and said it showed “the utter lack of ambition” in the plan, whilst London Mayor Sadiq Khan said people in London were suffering right now because of air pollution and can’t afford to wait. [44] Sue Hayman, the shadow environment secretary, told the Guardian that here had already been “seven years of illegal air pollution under this Conservative government, who have only acted after being dragged through the courts.” [45] Speaking to Ian Johnston, environment correspondent for the Independent, Gareth Redmond-King, head of climate and energy at WWF-UK, said the proposed ban on petrol and diesel vehicles from 2040 might sound good but will end up being meaningless as drivers will be switching to electric vehicles in any case. “The Government’s been failing to comply with this law for seven years,” he said, “and then is setting itself a target so far in the future that it will be delivered even if the Government did nothing.” [46] Professor Alastair Lewis, of the National Centre for Atmospheric Science at York University, made a similar comment, describing the ban as “highly symbolic”: “Given the rate of improvement in battery and electric vehicle technology over the last 10 years, by 2040 small combustion engines in private cars could well have disappeared without any Government intervention,” he said.

Doctors demand a “more robust response to this public health emergency”

According to the Guardian, senior doctors specialising in child health have also expressed their disappointment at the failure to take more decisive action. [47] Professor Neena Modi, president of the Royal College of Paediatrics and Child Health, said there was indisputable evidence demonstrating the tragic effects that air pollution has on the development of the lungs and hearts of children. “Having been told to go back to the drawing board so many times, that the Government’s final air quality plan still lacks sufficiently strong measures to clean our air is frankly inexcusable,” she said. Professor Jonathan Grigg, from the London School of Medicine and Dentistry, also said more urgent action was needed: “The 2040 target means that several generations of children will suffer the long term consequences of inhaling sooty particles and oxides of nitrogen,” he said. “The Government needs to act now, with a faster and more robust response to this public health emergency.”

Other commentators have pointed to the lack of attention to other sources of air pollution. Roger Harrabin, BBC environment analyst, said the Government’s plan did not address pollution from construction, farming and gas boilers. [48] Professor Alastair Lewis, of the National Centre for Atmospheric Science at York University, told the Independent: “There still remain many other urban sources of pollution not only from transport, but also heating, construction, domestic emissions, and external sources of pollution that drift into cities from outside, most notably from the agricultural sector. Some other urban sources of pollution are even on an upwards trend, most notably from wood burning stoves.” [49]

Plan criticised by transport unions

Unions representing the car manufacturing sector have expressed concern over the potential impact on employment when conventional vehicles are phased out. Speaking to the Guardian, Tony Burke, assistant general secretary of Unite, said: “The announcement has wide-ranging implications for the UK economy and future employment prospects of hundreds of thousands of skilled workers. We are calling for a national debate embracing employers, unions and ministers.” [50] And unions representing rail workers have also condemned the Government’s plan, pointing to the recent decision of the Transport Secretary Chris Grayling to abandon plans to electrify parts of the rail network. Speaking to the Independent, Mick Cash, general secretary of the RMT, said the proposed ban on petrol and diesel vehicles “exposes the rank hypocrisy of their decision to shelve long-planned rail electrification works. Puffed up news announcements about plans that are a generation away will not mask the reality of scrapped modernisation programmes on our railways in the here and now,” he said. [51]

Environment Secretary responds: “It’s up to local councils to do the hard work,” he says

The Environment Secretary Michael Gove responded to some of these criticisms on the Today programme on BBC Radio Four. [52] On charging motorists to enter clean air zones, he said the idea had been rejected and that it was up to local authorities to come up with imaginative solutions. “I don’t believe that it is necessary to bring in charging, but we will work with local authorities in order to determine what the best approach is,” he said. He described charging as “a blunt instrument,” saying he would prefer to use “a series of surgical interventions.” “That’s both fairer to drivers and also likely to be more effective, more quickly in the areas that count,” he said. On the idea of a scrappage scheme for old diesel vehicles, he said he had no ideological objection to the idea but insisted it was up to local councils to do the hard work and put them forward. “Everyone acknowledges that scrappage schemes in the past have been poor value for money,” he said. “Essentially they pay people for something they are already going to do.”

But speaking for Client Earth, air quality lawyer Anna Heslop said the plan would fail without a national network of clean air zones, which the Government’s own evidence showed would be the most effective option. “We will be holding the Government to account on this,” she said. “They have been in breach of these limits for seven years, and we will continue to do that.” [53]

European Commission: The Final Word?

Whilst the Government’s air quality plan shifts the burden of responsibility onto local authorities, its press release also places part of the blame for rising NO2 levels on the EU. It states: “The UK is one of 17 EU countries breaching annual targets for nitrogen dioxide, a problem which has been made worse by the failure of the European testing regime for vehicle emissions.” Given the fact that the Government was aware of the flawed data in its projections of NO2 emissions, as mentioned above, one can only describe this comment as somewhat hypocritical. It is also ironic given the fact that in February 2014 the European Commission began infringement proceedings against the UK for its failure to reduce NO2 levels. The EC issued a “letter of formal notice” to the UK Government, which is the first stage in a process that could culminate in the imposition of fines by the European Court of Justice. [54] And in February this year, the EC issued the UK with a final warning to comply with air quality laws that have been breached for the last seven years. [55] In a press release, the EC said NO2 emissions were over the legal limit in 16 air quality zones in the UK, including London, Birmingham, Leeds, and Glasgow. According to BBC News, Alexander Winterstein, speaking on behalf of the EC, was asked whether the UK would remain bound by any legal proceedings after leaving the EU. “For as long as the UK is a member of the European Union, rights and obligations apply,” he said. [56] As mentioned above, evidence submitted in court has suggested that the Government’s timetable on this issue is motivated by the prospect of EU fines, rather than the need to comply with a legal requirement in as short a time as possible, and the latest plan does little to suggest otherwise.

Acknowledgement

Photograph: Hope Street, Glasgow © Copyright Thomas Nugent and licensed for reuse under this Creative Commons Licence. The caption says: “According to Friends of the Earth, this is the most polluted street in Scotland for nitrogen dioxide, resulting from vehicle exhaust fumes.” In 2016. the nitrogen dioxide level at Hope Street, Glasgow, was an average of 65µg/m3. See ‘Scotland’s Most Polluted Streets Revealed – 5 New Pollution Zones Declared’, Friends of the Earth Scotland press release, 15/01/2017. Accessed from: https://foe.scot/press-release/scotland-s-most-polluted-streets-revealed-5-new-pollution-zones-declared/.

Notes

[1] ‘Plan for roadside NO2 concentrations published’, UK Government press release, 26/07/2017. Accessed from: https://www.gov.uk/government/news/plan-for-roadside-no2-concentrations-published.
[2] See Martin Goodman, ‘An Air That Kills’, in Client Earth: Building an ecological civilisation, Martin Goodman and James Thornton, London: Scribe Publications, 2017.
[3] ‘Gove falls at first hurdle on air pollution, say environmental lawyers’, Client Earth press release, 26/07/2017. Accessed from: https://www.clientearth.org/gove-falls-first-hurdle-air-pollution-plans-environmental-lawyers/.
[4] Quoted by Ian Johnston in ‘Why the Government’s plan to ban petrol and diesel cars may not achieve anything’, The Independent, 26/07/2017. Accessed from: http://www.independent.co.uk/environment/petrol-diesel-car-ban-government-air-pollution-2040-may-not-achieve-anything-environment-a7860971.html.
[5] ‘Air Quality Standards’, European Commission, last updated 22/09/2017. Accessed from: http://ec.europa.eu/environment/air/quality/standards.htm.
[6] Implementation of the Air Quality Directive. A study for the European Parliament’s Committee on Environment, Public Health and Food Safety. Nagl, C., Schneider, J., and Thielen, P. April 2016. Accessed as a PDF from: http://www.europarl.europa.eu/RegData/etudes/STUD/2016/578986/IPOL_STU(2016)578986_EN.pdf.
[7] Every breath we take: the lifelong impact of air pollution, Royal College of Physicians, February 2016. Available as a PDF from: https://www.rcplondon.ac.uk/projects/outputs/every-breath-we-take-lifelong-impact-air-pollution.
[8] Ibid: see [2].
[9] For a summary of the steps leading up to the UK Supreme Court ruling in 2015, see The UK Supreme Court ruling in the ClientEarth case: Consequences and next steps, Client Earth, September 2015. Accessed as a PDF from: https://www.documents.clientearth.org/wp-content/uploads/library/2015-09-17-the-uk-supreme-court-ruling-in-the-clientearth-case-consequences-and-next-steps-ce-en.pdf.
[10] Ibid: see [2].
[11] Ibid: see [5].
[12] As reported by Martin Goodman: see [2].
[13] Ibid: see [12]. For the judgement, see ‘R (on the application of ClientEarth) (Appellant) v Secretary of State for the Environment, Food and Rural Affairs (Respondent)’, Supreme Court Judgements, 29 April 2015. Accessed as a PDF from: https://www.supremecourt.uk/cases/docs/uksc-2012-0179-judgment.pdf.
[14] ‘UK Supreme Court orders Government to take “immediate action” on air pollution’, Client Earth press release, 29/04/2015. Accessed from: https://www.clientearth.org/uk-supreme-court-orders-government-take-immediate-action-air-pollution/.
[15] ‘UK Ministers facing new legal action over air pollution’, Client Earth press release, 14/09/2017. Accessed from: https://www.clientearth.org/uk-ministers-facing-new-legal-action-over-air-pollution/. See also the earlier statements: ‘Government Ministers ignoring ruling on air pollution’, Client Earth press release, 11/09/2015, at https://www.clientearth.org/government-ministers-ignoring-ruling-on-air-pollution, and ‘Government releases air pollution plans’, Client Earth press release, 12/09/2015, at https://www.clientearth.org/government-releases-air-pollution-plans/
[16] Ibid: see [2].
[17] Evidence of the Treasury’s involvement emerged at a hearing at the High Court in October 2016. See: ‘Government denied clean air zones to dangerously polluted UK cities’, Client Earth press release, 26/10/2016. Accessed from: https://www.clientearth.org/government-denied-clean-air-zones-dangerously-polluted-uk-cities/.
[18] ‘”Arrogant” UK Government response to air quality will face court challenge’, Client Earth press release, 17/12/2015. Accessed from: https://www.clientearth.org/arrogant-uk-government-response-to-air-quality-will-face-court-challenge/.
[19] ‘ClientEarth takes government back to court over killer air pollution’, Client Earth press release, 18/03/2016. Accessed from: https://www.clientearth.org/clientearth-takes-government-back-court-killer-air-pollution/.
[20] Air Quality, House of Commons Environment, Food and Rural Affairs Committee, 27 April 2016. Accessed as a PDF from https://publications.parliament.uk/pa/cm201516/cmselect/cmenvfru/479/479.pdf . For a summary, see Damian Carrington, ‘MPs: UK air pollution is a “public health emergency”‘, The Guardian, 27/04/2016, at https://www.theguardian.com/environment/2016/apr/27/uk-air-pollution-public-health-emergency-crisis-diesel-cars.
[21] Ibid [20], Paragraph 43. The EU’s decision to implement ‘real world’ tests was announced in a press release in February 2016. See: ‘Vehicle emissions in real driving conditions: Council gives green light to second package’, European Council press release, 12/02/2016. Accessed from: http://www.consilium.europa.eu/en/press/press-releases/2016/02/12-vehicle-emissions-in-real-driving-conditions-2nd-package/. The European Commission’s regulations on vehicle emissions are summarised in ‘Air pollution from the main sources – Air emissions from road vehicles’ at http://ec.europa.eu/environment/air/sources/road.htm. The EC says: “To deal with high on-road emissions from passenger vehicles, where a significant discrepancy with the laboratory testing has been confirmed in recent years, the Commission has developed the Real-Driving Emissions test procedure, which will apply from 1 September 2017.” On emission limits, the EC says: “Euro 5 and 6 Regulation 715/2007/EC sets the emission limits for cars for regulated pollutants, in particular nitrogen oxides (NOX, i.e. the combined emissions of NO and NO2 ) of 80mg/km.” Part of the problem of setting emission limits is the availability of accurate data on ‘real world’ driving conditions. However, an article in the Guardian which appeared shortly before the Efra report reported that “the most comprehensive set of data yet published” showed that “97% of all modern diesel cars emit more toxic nitrogen oxide pollution than the official limit when driven on the road.” See Damian Carrington, Gwyn Topham and Peter Walker, ‘Revealed: nearly all new diesel cars exceed official pollution limits’, The Guardian, 23/04/2016. Accessed from: https://www.theguardian.com/business/2016/apr/23/diesel-cars-pollution-limits-nox-emissions. The Guardian report says that the new data followed the publication earlier in the week by the Department for Transport of emissions results for 37 vehicles, “all of which emitted more NOX on the road than the official limit – but the new data covers more than 250 vehicles in more stringently standardised road conditions. The data was collected and published by testing specialists Emission Analytics and is available at http://equaindex.com/.
[22] Damian Carrington, ‘Sadiq Khan joins air pollution court case against UK government’, The Guardian, 26/05/2016. Accessed from: https://www.theguardian.com/environment/2016/may/26/sadiq-khan-joins-air-pollution-court-case-against-uk-government.
[23] Adam Vaughan and Esther Addley, ‘Boris Johnson “held back” negative findings of air pollution report’, The Guardian, 17/05/2016. Accessed from: https://www.theguardian.com/environment/2016/may/17/boris-johnson-held-back-negative-findings-of-air-pollution-report.
[24] Ibid: see [22].
[25] Paragraph 86 in ‘Approved Judgment of the High Court: ClientEarth (Claimant) v Secretary of State for the Environment Food and Rural Affairs (Defendant)’, Citation Number: [2016] EWHC 2740, Case Number: CO/1508/2016, 02/11/2016. Accessed as a PDF from: https://www.documents.clientearth.org/wp-content/uploads/library/2016-11-02-high-court-judgment-on-clientearth-no-2-vs-ssefra-on-uk-air-pollution-plans-ext-en.pdf.
[26] Ibid [25], Paragraph 85.
[27] Ibid [25], Paragraph 66.
[28] Ibid [25], Paragraph 50.
[29] ‘ClientEarth wins air pollution case in High Court’, Client Earth press release, 02/11/2016. Accessed from: https://www.clientearth.org/major-victory-health-uk-high-court-government-inaction-air-pollution/.
[30] ‘High Court gives UK Government 8 months to draw up fresh air quality plan,’ Client Earth press release, 21/11/2016. Accessed from: https://www.clientearth.org/high-court-gives-uk-government-8-months-draw-fresh-air-quality-plan/.
[31] The procrastination episode is detailed in a string of press releases from Client Earth. See:
(a) ‘UK Government makes last-ditch bid to delay essential clean air plans’, Client Earth press release, 25/04/2017. Accessed from: https://www.clientearth.org/uk-government-makes-last-ditch-bid-delay-essential-clean-air-plans/.
(b) ‘High Court orders UK air pollution hearing’, Client Earth press release, 25/04/2017. Accessed from: https://www.clientearth.org/high-court-orders-air-pollution-hearing/.
(c) ‘High Court rules air pollution plans must be published before General Election’, Client Earth press release, 27/04/2017. Accessed from: https://www.clientearth.org/judge-refuses-uk-government-permission-delay-air-quality-plan-til-general-election/.
The UK Government chose not to appeal the High Court ruling. See: ‘Government will not appeal High Court ruling on air pollution plan deadline’, Client Earth press release, 02/05/2017. Accessed from: https://www.clientearth.org/government-will-not-appeal-high-court-ruling-air-pollution-plan-deadline/.
[32] ‘UK Government releases ‘weak’ air quality plans’, Client Earth press release, 05/05/2017. Accessed from: https://www.clientearth.org/uk-government-releases-weak-air-quality-plans/.
[33] ‘ClientEarth challenges UK government’s air pollution consultation’, Client Earth press release, 31/05/2017. Accessed from: https://www.clientearth.org/clientearth-challenges-uk-governments-air-pollution-consultation/.
[34] ‘High Court judgment on air pollution a “shot across the bows” of government’, Client Earth press release, 05/07/2017. Accessed from: https://www.clientearth.org/high-court-judgment-air-pollution-shot-across-bows-government/.
[35] Ibid: see [1].
[36] Grace Rahman, ‘Motorways could be covered with large tunnels to trap pollution’, The Independent, 03/08/2017. Accessed from: http://www.independent.co.uk/environment/pollution-motorway-tunnels-cover-roads-air-quality-highways-england-a7874221.html.
[37] Highways England Air Quality Strategy, 02/08/2017. Available as a PDF from: https://www.gov.uk/government/publications/highways-england-air-quality-strategy. The agency also says it has previously trialled paint that ‘eats’ oxides of nitrogen alongside the road network.
[38] Rob Merrick, ‘Petrol-diesel car ban: Government plan dismissed as “smokescreen” after key air pollution policies dumped’, The Independent, 26/07/2017. Accessed from: http://www.independent.co.uk/news/uk/politics/petrol-diesel-car-ban-government-air-pollution-2040-policies-michael-gove-environment-groups-deaths-a7860361.html.
[39] Ibid: see [1].
[40] ‘Gove falls at first hurdle on air pollution, say environmental lawyers’, Client Earth press release, 26/07/2017. Accessed from: https://www.clientearth.org/gove-falls-first-hurdle-air-pollution-plans-environmental-lawyers/.
[41] ‘ClientEarth demands urgent clarification on UK government’s air quality plans’, Client Earth press release, 16/08/2017. Accessed from: https://www.clientearth.org/clientearth-demands-urgent-clarification-uk-governments-air-quality-plans/.
[42] Liam Kirkaldy, ‘ClientEarth calls for clarity on Scottish Government air pollution plans’, Holyrood Magazine, 03/08/2017. Accessed from: https://www.holyrood.com/articles/news/clientearth-calls-clarity-scottish-government-air-pollution-plans. In an earlier press release, Client Earth said the Government’s air quality plan “fails to ensure proper measures will clean up illegal pollution in Scotland, Wales and Northern Ireland” and that it would be raising the lack of detail about the devolved regions at the High Court hearing on 5th July 2017. See: ‘UK Government has a duty to protect all UK citizens from pollution’, Client Earth press release, 03/07/2017. Accessed from: https://www.clientearth.org/uk-government-duty-protect-all-citizens-air-pollution-environmental-lawyers/.
[43] Rowena Mason and Damian Carrington, ‘Government’s air quality plan branded inadequate by city leaders, The Guardian, 26/07/2017. Accessed from: https://www.theguardian.com/environment/2017/jul/26/governments-air-quality-plan-is-cynical-headline-grabbing-say-critics.
[44] ‘Diesel and petrol car ban: Clean air strategy “not enough”‘, BBC News, 26/07/2017. Accessed from: http://www.bbc.co.uk/news/uk-40731164.
[45] Ibid: see [43].
[46] Ian Johnston, ‘Why the Government’s plan to ban petrol and diesel cars may not achieve anything’, The Independent, 26/07/2017. Accessed from: http://www.independent.co.uk/environment/petrol-diesel-car-ban-government-air-pollution-2040-may-not-achieve-anything-environment-a7860971.html.
[47] Ibid: see [43].
[48] Ibid: see [44].
[49] Ibid: see [46].
[50] Ibid: see [43].
[51] Ibid: see [46].
[52] For a summary, see [38].
[53] Ibid: see [38].
[54] ‘Environment: Commission takes action against UK for persistent air pollution problems’, European Commission press release, 20/02/2014. Accessed from: http://europa.eu/rapid/press-release_IP-14-154_en.htm. The Commission gave the UK two months to respond before raising the issue with the European Court of Justice, but Client Earth reported in September 2015 that the case was on hold pending the conclusion of the Client Earth case (see [9]).
[55] ‘Commission warns Germany, France, Spain, Italy and the United Kingdom of continued air pollution breaches’, European Commission press release, 15/02/2017. Accessed from: http://europa.eu/rapid/press-release_IP-17-238_en.htm.
[56] ‘Air pollution “final warning” from European Commission to UK’, BBC News, 1151/02/2017. Accessed from: http://www.bbc.co.uk/news/uk-politics-38980510.

Future of EU Nature Directives still uncertain following appointment of new Environment Secretary

Leaving the EU will help the environment, says Michael Gove

But the Government’s Repeal Bill fails to ease concerns over environmental protection

July 28th 2017

In a speech delivered in Woking at the UK headquarters of the WWF on Friday 21st July, Michael Gove, the new Secretary of State for the Environment, Food and Rural Affairs, presented his vision of a ‘Green Brexit.’ Michael Gove was appointed to the role on Sunday 11th June, following the General Election on Thursday 8th June 2017 and the subsequent Cabinet reshuffle. His appointment prompted a storm of protest, anger and dismay among environmental groups and campaigners, and was labelled as “bad news” by Liberal Democrat MP Ed Davey, formerly Secretary of State for Energy and Climate Change in the coalition government. Speaking to the Guardian, he said it was like “putting the fox in charge of the hen house.” Anyone who cared about the environment should be “deeply worried” by Gove’s appointment, he said. [1]

The Back Story: Michael Gove and climate change

In his former post, Ed Davey had a fundamental disagreement with Michael Gove in 2013 when Gove, then serving as Education Secretary, wanted to remove climate change from the National Curriculum for Geography, arguing that it should be taught as a topic within science. Michael Gove said this was part of a drive to slim down an unwieldy curriculum and to give teachers more flexibility, but he was forced to abandon the plans after a sustained campaign from environmentalists and teachers and intensive lobbying by Ed Davey, who argued that the topic would be downgraded by the plans, while the existence of climate change would be made more problematic as a result. [2] Responding to Gove’s appointment, environmentalists were also quick to point out that Michael Gove had a poor track record when it came to voting on important environmental issues, including measures to tackle climate change. In May 2016, for instance, Michael Gove voted not to reduce the permitted levels of carbon emissions from new homes. [3]

EU Habitats Directive is “holding back development,” says Michael Gove

Michael Gove has also criticised the rationale of the EU Nature Directives and suggested that these could be scrapped once the UK leaves the EU. On Wednesday 22nd March this year, a week before the Government presented its intention to leave the EU by triggering Article 50, Michael Gove spoke to a business audience at an event in Central London hosted by Advertising Week Europe. “If there are regulations which hold any business here back, we now have the potential to amend or even if necessary rescind them,” he said. He singled out the EU Habitats Directive in particular, and said that EU rules concerning the building of new homes in environmentally sensitive areas, including his own constituency, were holding back developments:

“I am very, very keen – I may be odd in this respect as a Conservative MP – on having more homes built in my constituency,” he said. “It’s a social and economic good. But homes built in my constituency are governed by the Habitats Directive. The Habitats Directive holds that if you build a home within five kilometres of a particular type of terrain, heathland, then you have to allocate, at the same time, something called suitable alternative natural green space to offset the environmental impact.” The directive “massively increases the cost and the regulatory burden for housing development,” he said. “As a result my constituents, and perhaps your children, find homes more expensive and mobility in this country impeded.” [4]

Speaking to the Guardian following his appointment, Caroline Lucas MP, co-leader of the Green Party, said it was hard to “think of many politicians as ill-equipped for the role of environment secretary as Michael Gove. His record of voting against measures to halt climate change and his attempt to wipe the subject from our children’s curriculum show him entirely unfit to lead our country in tackling one of the greatest threats we face… As we enter Brexit negotiations, Gove’s past suggestion we scrap vital EU environmental protections becomes even more concerning.” [5]

But the new Secretary wants to “listen and learn”

However, speaking on the Today programme on BBC Radio Four shortly after his appointment, Michael Gove said that his brief was to enhance the environment and that he wanted to listen and to learn. Martin Harper, the RSPB’s Director of Conservation, was quick to take him up on the suggestion. In an article posted the following day (Wednesday 14th June), he gave examples of five RSPB projects intended to help the new Secretary “devise the right plan to deliver the Government’s manifesto commitment to pass on the environment in a better state to the next generation.” The examples focused on food (the RSPB’s intensive arable farm near Cambridge, which has helped to increase the number of farmland birds while also maintaining profitability), housing (the RSPB’s partnership with Barratt Homes, beginning with a pioneering housing development at Aylesbury), water (the Sustainable Catchment Management Programme in the Peak District, in partnership with United Utilities), inspiration (the Wallasea Island Wild Coast project in Essex, “the largest managed realignment project in Europe”), and money (the impact of Darwin grants and EU Life funding). [6]

On that Wednesday, Martin Harper met with Michael Gove at Rainham Marshes, one of eleven RSPB reserves on the side of the Thames, and had what he describes as “a great conservation.” Martin Harper says he had been primed beforehand by Michael Gove’s wanting answers to the question: “If we want the UK’s approach to environmental protection and enhancement to be seen as the best in the world, what does that mean and what does it look like at a local, national and global level?” The conversation discussed marine conservation areas, deforestation, environmental supply chains, migratory birds, natural capital accounting, the Common Agricultural Policy, spatial planning, the National Planning Policy Framework, and local nature reserves (among other things). Martin Harper concludes: “While Mr Gove is still only in the fourth day of his new job, he is clearly keen to get out, meet people and see places. He also asked the right questions, took notes and listened. These are good signs.” [7]

Also on that Wednesday (14th June), Dr Euan Dunn, the RSPB’s Principal Marine Advisor, posted an article on new research led by the RSPB which showed a correlation between the breeding success (or failure) of kittiwakes on the Yorkshire coast and the abundance (or otherwise) of sandeels at Dogger Bank. [8] The sandeels are commercially fished by Denmark, under the terms of the Common Fisheries Policy. The research was published in the journal Aquatic Conservation: Marine and Freshwater Ecosystems on June 2nd. “There is a lively debate about how the UK should manage its fisheries once the UK leaves the European Union,” Dr Euan Dunn said. And Michael Gove added more substance to this debate when, on July 2nd, he announced the Government’s intention to withdraw from the London Fisheries Convention.

The Common Fisheries Policy and sustainability

The London Fisheries Convention is an agreement between the UK, France, Belgium, Germany, Ireland and the Netherlands that allows those countries to fish within 6 and 12 nautical miles of each other’s coastlines. The agreement was signed in 1964 before the UK joined the EU and became party to the Common Fisheries Policy, which allows all EU countries to fish within 12 and 200 nautical miles off the UK coastline. On July 2nd, Michael Gove announced that the Government would be signalling its intention to withdraw from the London Fisheries Convention by triggering the two-year process of leaving. He said that leaving the EU would also mean leaving the Common Fisheries Policy. “We can then extend control of our waters up to 200 miles or the median line between Britain and France, and Britain and Ireland,” he said. The Common Fisheries Policy, which sets fish quotas as well as fishing rights, has been an environmental disaster, he said, “and one of the reasons we want to change it is that we want to ensure that we can have sustainable fish stocks for the future.” [9]

As reported by the Guardian, the news was welcomed by the National Federation of Fishermen’s Organisations, but treated with caution by WWF UK, Greenpeace UK, and environmental lawyers Client Earth. Greenpeace UK said that sustainable fishing would only be achieved by government support for locally-based fishing communities, while Client Earth and the WWF said that maintaining sustainable fish stocks required cooperation and shared management rather than standing alone and unilaterally withdrawing from agreements. [10]

Was Michael Gove still listening and learning? In his keynote speech delivered last week (July 21st), he touched on many of the topics discussed in his conversations with the RSPB, including marine conservation. On fishing, he said that fishing had “powerfully engaged” his emotions, citing his personal connections with the industry. “My father, grandfather and great grandfather all made their living from the sea,” he said. “My great grandfather was a fisherman, my grandfather and father fish merchants. My father’s business closed in the 1980s when I was a schoolboy, one of many that closed after this country accepted EU control of our waters through the Common Fisheries Policy. The CFP has had a profound impact on the UK’s coastal communities. But its most profound impact has been on the sustainability of our fish stocks.” [11]

He said that, though some improvements had been made, it was still the case that 40% of fish stocks in the Atlantic, North Sea and Baltic Sea are being fished at unsustainable levels. By leaving the CFP, he argued, Britain will be taking back control of its territorial waters, “granting access to other countries and allocating quotas all on the basis of what is scientifically sustainable.” This, in turn, he added, should lead to the revival of the UK’s coastal communities and a sustainable fishing industry.

“I am an environmentalist,” says Michael Gove

In this keynote speech, Michael Gove seemed determined to appease the concerns over his appointment and to display his environmental credentials. “I am an environmentalist,” he declared, and his speech was addressed to environmentalists first and foremost. He praised the work of organisations such as the WWF, the RSPB, the Wildlife Trusts, Greenpeace and Friends of the Earth – many of whom were represented in the audience – for their “campaigning energy and idealism” which he said was “vital to ensuring we continue to make progress in protecting and enhancing our environment.”

He gave two reasons for his environmentalism. “I am an environmentalist first because I care about the fate of fellow animals,” he said. He spoke about drawing inspiration from nature and quoted a number of literary sources in his speech, and he spoke about growing up between the North Sea and the Cairngorms, spending weekends in the hills and weekdays with his head in Wordsworth and Hardy, Gibbon and Edward Thomas, and growing up “with an emotional attachment to natural beauty which inevitably influences my feelings towards questions on everything from architecture to ivory.” But, he said, “I am also an environmentalist because of hard calculation as well as the promptings of the heart.” If we don’t maintain and enhance the natural world around us, he explained, we shall find ourselves facing disaster.

It was in this latter context that he spoke about climate change, citing the Pulitzer Prize-winning author Jared Diamond, and the risks of flood damage, water shortages, enforced migration, habitat destruction, economic disasters, interstate conflict, and many other threats faced by the globe if action was not taken. “Now, it is because environmental degradation is such a threat to future prosperity and security that I deeply regret President Trump’s approach towards the Paris Agreement on Climate Change,” he said. He “sincerely hoped” that the President would have a change of heart. “International cooperation to deal with climate change is critical if we’re to safeguard our planet’s future and the world’s second biggest generator of carbon emissions cannot simply walk out of the room when the heat is on,” he said.

The Common Agricultural Policy and the future of farming

But the main theme of his speech was the opportunities for greater environmental protection, presented by the UK’s decision to leave the EU. He acknowledged that the EU had “in a number of ways” been a force for environmental good: “Our beaches are cleaner, habitats are better protected and pesticides more effectively regulated as a consequence of agreements that we reached since we entered the EU. And I have no intention of weakening the environmental protections that we have put in place while in the European Union.” However, he singled out the Common Agricultural Policy and the Common Fisheries Policy as “the two areas where the EU has most clearly failed to achieve its stated environmental goals.”

Michael Gove spoke at length on the failings of the Common Agricultural Policy and the future of farming once the UK leaves the EU, restating the Government’s pledge to match the £3 billion that farmers currently receive in support from the EU until 2022. On the failings of the CAP, he said: “The Common Agricultural Policy rewards size of land-holding ahead of good environmental practice, and all too often puts resources in the hands of the already wealthy rather than into the common good of our shared natural environment. It also encourages patterns of land use which are wasteful of natural resources and often intrinsically poor value rather than encouraging imaginative and environmentally enriching alternatives.” He said that farmers themselves had seen how the CAP “holds back productivity, impedes progressive environmental stewardship, and works against their natural instincts.”

He spoke about a recent report from the Adaptation Sub-Committee of the Committee on Climate Change, which suggests that EU-inspired farming approaches have led to soil degradation and decreasing fertility. “The effect is most noticeable in what has been some of our most fertile growing soil in the Fens,” he said, “where a combination of the draining of the peat and the disappearance of hedges and trees over the years has led to a thinning of productive earth. According to the Committee’s report, Britain has lost 84% of fertile topsoil since 1850 and the erosion continues in some areas at between 1cm and 3cm a year.” This was obviously unsustainable, he said, “which is why we need to take the opportunity that being outside the Common Agricultural Policy will give us to use public money to reward environmentally-responsible land use.”

The Government would continue to support farming, he said, not least because the UK is dependent on agriculture for the production of high quality food, and he mentioned hill farmers in particular, saying support was critical for the management of upland areas and landscapes such as the Lake District. However, future government support would depend on reform, he said. Conversations with farmers, landowners, and organisations such as the NFU, had led him to conclude “there is a growing appetite for a new system of agricultural support” which prioritises environmental protection and enhancement. He talked about higher standards of animal welfare, support for woodland creation and the Government’s aim of planting 11m. more trees, and support for protecting the range of habitats that will encourage biodiversity (including heathland, bog, meadow and marsh). “Now doing this well depends on developing the skills and farming practices of landowners and managers,” he said. “And understanding how to create and protect habitats should be as much a part of good farming as understanding the latest crop and soil science.”

Ambition: Michael Gove sets out his vision of a Greener Britain

Raising standards was a recurring theme in Michael Gove’s speech. Leaving the EU presented Britain with the historic opportunity to “establish ourselves as the home of the highest environmental standards,” he said. It opened up the opportunity to review government policies on agriculture, land use, biodiversity, woodlands, marine conservation, fisheries, pesticide licensing, chemical regulation, animal welfare, habitat management, waste, water purity, air quality, “and so much more.” Elsewhere in his speech, marine conservation, soil protection, river management, and bio-security were added to the list. Outside the EU, “there is scope for Britain to be a global leader in environmental policy across the board,” he said. His vision was for Britain to develop “global gold standard policies” which would be informed by “rigorous scientific analysis.” And in setting out a vision of the future, he said: “We should not aim simply to halt or slow the deterioration of our environment. We must raise our ambitions so we seek to restore nature and reverse decline.”

A packed agenda

The list of environmental issues that the Environment Secretary wants to tackle was wide-ranging. It included, for instance, waste management and recycling, with the suggestion that leaving the EU could mean a smarter and more targeted approach to incentivising recycling; one that could be based on environmental impact and value of the material, rather than a weight-based system. In the immediate term, a number of concrete proposals were mentioned, which were at various stages of implementation:

Pollution from plastic products: On the day of his speech (July 21st), the Government would be publishing its response to a consultation on the use of micro-plastics (known as microbeads) in personal cosmetic products, which end up in the oceans with the potential to cause harm to marine life. Legislation on banning the use of such products would be introduced later this year. The Environment Secretary also wanted to reduce the amount of plastic bottles entering UK waters. [12]

The Air Quality Plan: Due to be published at the end of this month following a court ruling. [13]

The 25-year Plan for the Natural Environment, which has been “longer in gestation than a baby elephant”: The Environment Secretary has written to the Chair of the Natural Capital Committee, seeking advice on what the Plan “should aim to achieve and how it should seek to do so,” hopefully including a rigorous methodology for setting goals and reporting success or failure. The Committee has agreed to provide feedback by September 2017, “laying the ground for subsequent publication” by Defra. [14]

The Clean Growth Plan: Due to be launched this autumn 2017 by the Department for Business, Energy and Industrial Strategy. The plan “should reinforce our ambition to be the home of the most economically and environmentally ambitious policies in the areas of clean green technology, from energy generation to transport, the circular economy to house building.”

• The Government’s second National Adaptation Programme: In 2018, the Environment Secretary will be publishing “a comprehensive plan of action to improve our resilience to climate change.”

Marine sanctuaries: Plans to complete a ‘Blue Belt’ of marine protected areas around the UK, together with plans for similar areas around Britain’s overseas territories, would see the creation of the world’s largest marine sanctuaries. The aim is to deliver over 4m. square kilometres of protected maritime areas by 2020. The Government will also continue to support the moratorium on commercial whaling, he said.

Defra versus the Government?

Michael Gove did not have long to wait for responses to his speech. Damien Carrington, the Guardian’s Environment Editor, said: “Gove’s vision for the environment is undoubtedly ambitious but it is at odds with much government action – making it real will be a gargantuan task.” [15] To quote one instance, he pointed to an article in the Independent on the Government’s plan to give the UK’s most energy-intensive companies a £130m exemption from the climate change fund, which campaigners argue will mean some of the country’s biggest polluters will end up paying less while ordinary customers will end up making up the difference. [16] This “£130m bung, shifting the costs of supporting new clean energy on to the public,” was announced the day before Michael Gove promised to take on vested interests, he says. On reforming the farming subsidy regime, Damien Carrington said this would also prove a difficult task given that the Government had already demonstrated its inability to pay EU subsidies on time. “Nonetheless,” he concludes, “Gove’s speech was important, rightly placing the environment at the heart of the nation’s and the world’s well-being, prosperity and security.”

Michael Gove has a reputation for dramatic changes of opinion, and it does seem remarkable that it was only in March that he was criticising the EU Habitats Directive for holding back development, singling out heathland in particular as a habitat in his own constituency that was hampering house building. Four months later, heathland joins the list of habitats that “need care and attention if they are to provide homes to the growing diversity of animal and plant life that we should wish to encourage.” ‘Habitats’ are mentioned eight times in his speech. And far from wanting to scrap the EU Nature Directives, he now says habitats are better protected because of EU regulation and he has no intention of weakening the environmental protections provided by the Directives. However, in March he was addressing business and not as a member of the Cabinet; last week he was addressing environmentalists as the new Environment Secretary. Should environmentalists believe that this keynote speech represents a sincere change of opinion based on a period of listening and learning?

Caroline Lucas of the Green Party is sceptical about his environmental credentials. Speaking to the Guardian’s Political Editor Jessica Elgot, she said: “Gove’s overture to the environment might make him sound like a keen defender of nature but his government’s actions suggest that protecting our natural world is a long way from the top of their priority list. There is an environment-shaped hole in the government’s Brexit plans. They failed to announce any kind of environmental protection bill in the Queen’s speech, and we still don’t know how they will transfer enforcement powers from EU institutions to the UK.” [17]

Martin Harper of the RSPB broadly welcomed the speech, saying it showed “personal commitment, a clear analysis as to why nature is in trouble, and an ambition to restore nature.” He also said Michael Gove was right in suggesting that farmers should be rewarded for restoring wildlife and protecting natural resources. [18] However, he also expressed concerns over the legal aspects of leaving the EU. “Michael Gove gave us an indication that he was prepared to look at how you replace the enforcement powers currently provided by the EU,” he says: “To do that he’s going to have to influence the current Repeal Bill to make sure not only do we maintain existing levels of protection afforded by EU law, but also that we work out how to ensure that the laws are then enforced.”

Legal Issues: The Government’s Repeal Bill

The Government’s European Union (Withdrawal) Bill (also known as the Repeal Bill) was published on 13th July. [19] The purpose of the Bill is to transfer all EU law into domestic law so that the law will be the same on the day of departing the EU as it was on the day before. In theory, this sounds like a simple operation, but the situation is far more complicated, as Martin Harper pointed out two weeks ago. Firstly, there is the question of underlying principles, including the “over-arching environmental principles enshrined in European Treaties, such as the polluter pays and the precautionary principle.” [20] If these vital principles are not also translated into domestic law, the UK’s environmental protection will be substantially watered down, he says. The Repeal Bill fails to guarantee that these key environmental principles will be transferred to domestic legislation.

Secondly, there is the problem of delegated powers and scrutiny. The laws cannot be transported in their entirety as they contain references to European agencies and institutions; hence some amendments will have to be made to change those references to new or existing domestic agencies and institutions. The Government plans to give Ministers delegated powers to make such amendments. However, there is no guarantee of parliamentary scrutiny of such changes, or that these delegated powers will not be used to make substantial changes. Additionally, the Repeal Bill fails to provide a guarantee that future changes to these transferred EU environmental laws will be subject to full parliamentary scrutiny, so there is no certainty that delegated powers will not be used in the future to make changes to their scope or their purpose.

Thirdly, there is the question of enforcement. Currently, it is EU institutions that monitor compliance with environmental legislation. Martin Harper says that leaving the EU will leave us with a large gap in governance: “The Repeal Bill fails to provide any certainty as to how important environmental standards and principles will be upheld. Instead an environmental fact sheet accompanying the Bill reiterates the government’s position that future enforcement of environmental protections will be done by judicial review and parliament. This is considerably weaker than the current powers exercised by the European Court of Justice.” [21] The European Court of Justice handles proceedings against EU member states who have failed to comply with their environmental obligations; it also has the power to impose financial penalties for non-compliance. There will be no equivalent enforcement body on leaving the EU.

However, on 3rd July (prior to the Bill’s publication), a group of lawyers announced they were taking steps to ensure that EU environmental protection mechanisms would not be jettisoned after the UK leaves the EU. The lawyers are members of the UK Environmental Law Association (UKELA) and the ‘task force’ is being led by Richard Macrory, Professor of Environmental Law at University College London. Speaking to the Guardian, he said: “The last thing we want to find in Britain is a whole lot of legal gaps in the protections… One of the most important functions of the EU has been to supervise how member states implement their obligations. These processes apply to all areas of law but the majority of cases have been brought in the environmental sector.” [22] On the question of what will replace the monitoring and enforcement role of EU institutions, he said. “The government response to date has been rather unimaginative and minimalist – they say we can rely on judicial reviews brought by NGOs. We will question whether relying on judicial review is a sufficient substitute for a more systematic and independent supervisory function performed by the Commission.”

Writing in the Guardian on the enforcement issue, Sandra Laville summarises the results of a House of Lords inquiry into the impact of Brexit on climate change and the environment. [23] The inquiry concluded that enforcement will need to be underpinned by judicial oversight and that existing domestic judicial review procedures may be inadequate and costly. In short, judicial reviews in domestic courts would not amount to a sufficient enforcement body: “The evidence… strongly suggests that an effective and independent domestic enforcement mechanism will be necessary in order to fill the vacuum left by the European Commission.” Sarah Mukherjee, Environment Director for Water UK (the body that represents water companies), told the inquiry that it was the ability to impose financial sanctions which focused government minds: “Governments pay a lot of attention to the risk of being infracted because it is very expensive and it is not brilliant for your reputation,” she said.

Moving the Goalposts: Limiting access to justice

A judicial review can cost thousands of pounds. Richard Macrory of UKELA compared this with a citizen complaint which an individual can take to the EC for the price of a stamp if they believe their government has not upheld environmental protections or broken laws relating to the environment. In a further development, the UK Government has made it even more difficult to mount legal challenges on environmental issues. Changes to the rules announced last November and introduced in February give judges the ability to increase or decrease the cap on costs midway through a case, making the costs of mounting a legal challenge uncertain. [24] People bringing environmental court cases will also have to provide more financial information. Environmental lawyers Client Earth say this will make an already arduous process even more difficult, while the introduction of uncertainty is contrary to the Aarhus Convention, a UN agreement which the UK has signed and is designed to ensure access to justice for environmental cases.

In response to these changes, Client Earth has joined forces with the RSPB and Friends of the Earth to mount a legal challenge. The case had an initial hearing at the High Court on Wednesday 19th July, two days before the new Environment Secretary made his keynote speech. David Wolfe QC, representing the three organisations, argued that the rules do not follow the spirit of the Aarhus Convention. Client Earth says: “The UK government must ensure environmental cases are not prohibitively expensive and they must remove or reduce financial and other barriers to access to justice.” [25] The case continues.

Given that the Government has now been defeated twice in a legal challenge to its plans to tackle air pollution, it would not be surprising to see a determined effort to defend its moves to make environmental cases more difficult to bring to court. Which is not a strong indicator that “leaving the EU will help the environment.” To quote Michael Gove: “Ultimately, the air we breathe, the water we drink, the food we eat and the energy which powers enterprise, are all threatened if we do not practice proper stewardship of the planet.” Fine words, but government actions make them sound rather hollow.

Acknowledgement

Photograph: RSPB Rainham Marshes, Visitor Centre © Copyright Paul Farmer and licensed for reuse under this Creative Commons Licence. Three days into his new role as Environment Secretary, Michael Gove met with Martin Harper of the RSPB at Rainham Marshes on 14th June as he embarked on a project of ‘listening and learning.’ Many of the topics discussed found their way into his keynote speech delivered at the WWF UK headquarters on 21st July.

Notes

[1] ‘Michael Gove as environment secretary is “fox in charge of hen house”‘, Matthew Taylor, The Guardian, 12 June 2017. Retrieved from: https://www.theguardian.com/politics/2017/jun/12/michael-gove-entirely-unfit-to-be-environment-secretary-says-greens.

[2] ‘Michael Gove abandons plans to drop climate change from curriculum’, Patrick Wintour, The Guardian, 5 July 2013. Retrieved from: https://www.theguardian.com/education/2013/jul/05/michael-gove-climate-change-geography-curriculum.

[3] ‘Climate Change: Michael Gove generally voted against measures to prevent climate change’, They Work For You. Retrieved from: https://www.theyworkforyou.com/mp/11858/michael_gove/surrey_heath/divisions?policy=1030.

[4] ‘Slash EU regulations on wildlife protection and drug safety trials after Brexit, Michael Gove urges’, Jon Stone, The Independent, 25 March 2017. Retrieved from: http://www.independent.co.uk/news/uk/politics/brexit-eu-regulations-michael-gove-environment-drugs-a7649041.html.

[5] Ibid: see [1].

[6] ‘A chance for the new Environment Secretary, Michael Gove, to “listen and learn”‘, Martin Harper, RSPB, 14 June 2017. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/06/14/a-chance-for-the-new-environment-secretary-michael-gove-to-listen-and-learn.aspx. On the Aylesbury development, see the ENA UK article ‘Barratt Developments and RSPB sign national agreement for wildlife-friendly housing development’.

[7] ‘A chance for the new Environment Secretary, Michael Gove, to “listen and learn” (part 2)’, Martin Harper, RSPB, 15 June 2017. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/06/15/a-chance-for-the-new-environment-secretary-michael-gove-to-listen-and-learn-part-2.aspx.

[8] ‘Protecting our Seabirds in Post-Brexit Waters’, Euan Dunn, RSPB, 14 June 2016. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/06/14/protecting-our-seabirds-in-post-brexit-waters.aspx. The research paper ‘Kittiwake breeding success in the southern North Sea correlates with prior sandeel fishing mortality’ was published in Aquatic Conservation: Marine and Freshwater Ecosystems and is available at http://onlinelibrary.wiley.com/doi/10.1002/aqc.2780/full.

[9] ‘UK to “take back control” of waters after exiting fishing convention’, Frances Perraudin, The Guardian, 2 July 2017. Retrieved from: https://www.theguardian.com/environment/2017/jul/02/uk-take-back-control-london-fisheries-convention-michael-gove.

[10] Ibid: see [9].

[11] ‘The Unfrozen Moment – Delivering A Green Brexit’, Michael Gove, 21 July 2017. Retrieved from: https://www.gov.uk/government/speeches/the-unfrozen-moment-delivering-a-green-brexit.

[12] See the ENA UK article ‘New research shows cosmetic products contain large quantities of micro-plastics’.

[13] In April 2015, the UK Supreme Court ordered the UK Government to take immediate action to tackle air pollution following a successful legal challenge from environmental lawyers Client Earth. The lawyers went to court again when the Government’s plans published in December 2015 were deemed inadequate. Client Earth says levels of nitrogen dioxide are over the legal limit in 37 out of 43 zones in the UK, as defined by EU standards. The Government’s latest plans were published two days ago (26th July). For the full saga, see ClientEarth.

[14] On the 25-year plan for the natural environment, see the ENA UK article ‘Defra responds to recommendations of Natural Capital Committee’.

[15] ‘Michael Gove’s green dream: like Brexit, the reality awaits’, Damien Carrington, The Guardian, 21 July 2017. Retrieved from: https://www.theguardian.com/environment/2017/jul/21/michael-goves-green-dream-like-brexit-the-reality-awaits.

[16] ‘UK’s most energy-intensive companies to get £130m exemption from climate change fund’, Ian Johnston, The Independent, 20 July 2017. Retrieved from: http://www.independent.co.uk/environment/uk-energy-intensive-pollution-companies-climate-change-fund-exemption-targets-regulation-global-a7851326.html.

[17] ‘Michael Gove “deeply regrets” Trump’s approach to Paris climate agreement’, Jessica Elgot, The Guardian, 21 July 2017. Retrieved from: https://www.theguardian.com/politics/2017/jul/21/michael-gove-farmers-must-prove-they-deserve-subsidies-after-brexit.

[18] ‘A reflection on Michael Gove’s first major environment speech’, Martin Harper, RSPB, 21 July 2017. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/07/21/an-ambitious-start-from-michael-gove.aspx.

[19] The European Union (Withdrawal) Bill (commonly known as the Repeal Bill) is available as a PDF from the UK Parliament website at https://www.publications.parliament.uk/pa/bills/cbill/2017-2019/0005/18005.pdf.

[20] ‘Great or otherwise, the Repeal Bill is a big deal for nature’, Martin Harper, RSPB, 12 July 2017. Retrieved from:
http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/07/12/great-or-otherwise-the-repeal-bill-is-a-big-deal-for-nature.aspx
. The precautionary principle has a dedicated website at ‘The Precautionary Principle’.

[21] ‘Initial reaction to the Repeal Bill’, Martin Harper, RSPB, 13 July 2017. Retrieved from: http://www.rspb.org.uk/community/ourwork/b/martinharper/archive/2017/07/13/initial-reaction-to-the-repeal-bill.aspx.

[22] ‘Lawyers plan to stop UK dropping EU rules on environment after Brexit’, Sandra Laville, The Guardian, 3 July 2017. Retrieved from: https://www.theguardian.com/environment/2017/jul/03/lawyers-plan-to-stop-uk-dropping-eu-rules-on-environment-after-brexit-taskforce-protections-law. For information on the UK Environmental Law Association, see UKELA.

[23] Ibid: see [22]. The House of Lords report which followed their inquiry was published on 14th February 2017 and is available as a PDF from the UK Parliament website at https://publications.parliament.uk/pa/ld201617/ldselect/ldeucom/109/109.pdf.

[24] ‘New UK rules make it harder to bring environmental court cases’, Client Earth, 23 November 2016. Retrieved from: https://www.clientearth.org/new-uk-rules-make-harder-bring-environmental-court-cases/.

[25] ‘New government rules on environmental cases “move financial goalposts”, court hears’, Client Earth, 20 July 2017. Retrieved from: https://www.clientearth.org/new-government-rules-environmental-cases-move-financial-goalposts-court-hears/.

The Referendum Fallout – Rising concerns for nature conservation and climate change

Alarm bells ring as new PM abolishes Department of Energy and Climate Change

But some environmentalists take a more positive view

July 20th 2016

Environmentalists were quick to respond to the result of the EU referendum last month, which was held on June 23rd 2016. The turnout was 72.21% of the registered electorate, with 51.89% of the turnout voting for the UK to leave the EU and 48.11% voting to remain. [1]

Craig Bennett, Friends of the Earth CEO, issued a ‘red alert’ for the environment and said in The Guardian that around 70% of the UK’s environmental safeguards are now at risk. Mike Clarke, CEO of the RSPB, said nature transcends national boundaries and expressed the organisation’s belief that it needs a common set of international standards to enable it to thrive. In a blog post, he says: “We need clean air and water, and we want an attractive countryside rich in wildlife. It is essential that we do not lose the current hard-won level of legal protection. Given the current state of nature, we should be looking to improve the implementation of existing legal protection and, where necessary, to increase it.” The Independent reminded its readers that the environment secretary Liz Truss signed an open letter to the newspaper claiming a vote to leave would be “a backwards step for the protection of the countryside.”

What future for the EU’s Nature Directives?

Veteran campaigner Sir David Attenborough expressed his sadness at the referendum decision to The Guardian and voiced his hopes that collaboration on conservation issues will transcend political divisions. [2] He also hoped that the UK will continue to enact the EU’s Nature Directives. The EU’s Nature Directives, consisting of the 1979 Birds Directive and the 1992 Habitats Directive, form the basis for nature conservation across the EU and place a responsibility on all member states to protect the most threatened species and the most important sites. Both directives are currently under review and the World Wildlife Fund has managed to obtain a consultants’ report on whether the laws are “fit for purpose.” As explained in an article by Alistair Taylor, Senior Policy Officer for the RSPB, the report confirms that the Nature Directives are “delivering for nature.” The report states: “The balance of the evidence shows that the Directives are fit for purpose, and clearly demonstrate EU added value.”

The RSPB also points out that the Directives are intended to give effect to EU commitments under international conventions and agreements, such as the Convention on Biological Diversity and the Convention on European Wildlife, among others: “While leaving the EU may mean the UK is no longer bound by EU environmental policy objectives, our international obligations under these and other international environmental treaties will remain. It is vital that any emerging legal protection for our most special places for wildlife across the UK is consistent with international best practice, and at least equivalent to that currently provided by the EU Nature Directives.”

“It’s often UK interpretation and implementation that’s more of a problem than EU regulation,” says MPA CEO

Business leaders have also expressed concerns about the referendum result. Nigel Jackson, CEO of the Mineral Products Association (MPA), said in a statement: “We are not convinced that any objective evaluation of EU ‘red tape’ has been undertaken and certainly no informed assessment of 43 years of transposition of EU regulation into UK law. We believe that it will not be easy, quick or even desirable to try and unpack the current corpus of regulation without knowing what will supersede it. It is often UK interpretation and implementation that is more of a problem than EU regulation and the distinction needs to be clear.” He also expressed the MPA’s concern that decisions on major energy and infrastructure projects could be at risk of further delay because of the tasks now facing the Government. “Key strategic initiatives such as the Northern Powerhouse must remain high on the Government’s agenda,” he said.

Brian Berry, CEO of the Federation of Master Builders (FMB), also expressed a concern about the impact of the decision on infrastructure projects as well as house building, and issued a reminder that the construction industry faces a skills shortage: “The UK construction industry has been heavily reliant on migrant workers from Europe for decades now,” he said. “If ministers want to meet their house building and infrastructure objectives, they have to ensure that the new system of immigration is responsive to the needs of industry. At the same time, we need to ensure that we invest in our own home-grown talent through apprenticeship training. We need to train more construction apprentices so we are not overly reliant on migrant workers from Europe or further afield.”

Ministers express concern and astonishment as the Department of Energy and Climate Change is abolished

Prior to the vote, Green Party MP Caroline Lucas called the referendum a “climate referendum” and warned that leaving the EU could be detrimental to tackling climate change. [3] Alarm bells have now started ringing with the news that the Department of Energy and Climate Change (DECC) is to be abolished and that its functions will be transferred to other government departments, principally the new Department of Business, Energy and Industrial Strategy. The decision came on July 14th following the appointment of the new Prime Minister Theresa May and the subsequent ministerial reshuffle, with Andrea Leadsom MP being appointed the new Secretary of State for the Environment, Food and Rural Affairs.

Angus MacNeil MP, Chair of the Energy and Climate Change Committee, whose role is to hold the Government to account on its energy policies and their implementation, was swift to issue a statement, declaring his astonishment at the Prime Minister’s decision. “DECC’s disappearance raises urgent questions,” he said. “To whom falls the central statutory obligation, contained in the Climate Change Act 2008, to reduce the UK’s carbon emissions by 80% from their 1990 baseline? Which department will take responsibility for the energy and climate aspects of negotiations to leave the EU? Who will champion de-carbonisation in Cabinet? Who will drive innovation in the energy sector?”

In his statement, he also pointed out that the Paris agreement on climate change still requires ratification by the UK Government, and the fifth carbon budget is still to be set in law. On a more positive note, he said there will be no immediate change to the remit of the Energy and Climate Change Committee, which can only be altered by the House of Commons, and he pledged his determination to see the continuation of effective Parliamentary scrutiny of energy and climate change issues.

“Shocking news,” says Friends of the Earth CEO

Former ministers and environmental groups have been quick to criticise the decision to abolish the department because of what it says about the Government’s attempts to tackle climate change. Friends of the Earth CEO Craig Bennett commented: “This is shocking news. Less than a day into the job and it appears that the new Prime Minister has already downgraded action to tackle climate change, one of the biggest threats we face.” Other groups expressing similar views include the Green Party, the New Economic Foundation think tank, and ClientEarth, a group of environment lawyers who won a legal challenge in 2015 concerning the Government’s record on reducing air pollution.

New department will deliver a “comprehensive industrial strategy,” says Minister

The revamped Department of Business, Energy and Industrial Strategy will be led by former Communities Secretary Greg Clark MP, who served as Shadow Energy and Climate Secretary for the Conservative Party from 2008 to 2010. In a press statement, he said: “I am thrilled to have been appointed to lead this new department delivering a comprehensive industrial strategy, leading government’s relationship with business, furthering our world-class science base, delivering affordable, clean energy and tackling climate change.”

The BBC’s environment analyst Roger Harrabin points to Greg Clark’s credentials as a writer of papers on a low-carbon economy and says his opening remarks suggest an alternative and more positive interpretation of the decision to abolish DECC. “If you really intend climate change to drive an industrial transformation,” he says, “why not embrace it within a powerful department that’s developing the sort of industrial strategy needed to forge a genuine low-carbon economy?”

An opportunity for a “joined-up” climate policy, say environmentalists

Roger Harrabin’s view is echoed by a number of environmental groups who also provide a more positive view about the decision to merge DECC with the Department of Business. Richard Black, Director of the Energy and Climate Intelligence Unit, said: “Greg Clark is an excellent appointment. He understands climate change, and has written influential papers on the benefits of Britain developing a low-carbon economy. Importantly, he sees that economic growth and tackling climate change are bedfellows not opponents – and he now has the opportunity to align British industry, energy and climate policy in a way that’s never been done before.”

Richard Howard from the Policy Exchange think tank commented: “Rather than bemoaning the demise of DECC, we should embrace the creation of BEIS. DECC has always been regarded as something of a minnow in departmental terms. By merging with BIS, energy and climate change issues can be elevated to a much higher level politically.” Juliet Davenport, CEO of the renewable energy supplier Good Energy, said: “In some ways, the name above the door of the civil service department doesn’t matter.” David Nussbaum, CEO of the World Wildlife Fund (UK), said: “The new Department for Business, Energy, and Industrial Strategy can be a real powerhouse for change, joining up Whitehall teams to progress the resilient, sustainable, and low carbon infrastructure that we urgently need.” [4]

However, Roger Harrabin also says that the new department faces formidable problems getting the UK on track with its long-term ambitions to cut carbon: “Decisions on Hinkley Point nuclear station and the government’s low carbon strategy due later this year will offer genuine pointers to the significance of the death of DECC,” he says.

DECC’s track record

DECC’s track record on tackling climate change has given environmentalists a great deal of concern in recent times. In an article for edie.net, George Ogleby and Matt Mace catalogue the decisions that have caused mounting controversy: “DECC has recently faced strong opposition for subsidy cuts for onshore wind and solar; the scrapping of a tax exemption for renewable energy; the postponement of the next Contracts for Difference (CfD) auction; the removal of zero-carbon homes standards; scrapping the Carbon Capture and Storage (CCS) completion; the reform of the Renewable Heat Incentive (RHI), and the sell-off of the Green Investment Bank.”

It remains to be seen whether the new Department of Business, Energy and Industrial Strategy will manage to achieve a better record.

Notes

[1] For full details of the results, see BBC News. 27.79% of the registered electorate did not turn out to vote, which means that 62.53% of the registered electorate either voted to remain in the EU or abstained from voting, whilst 37.47% of the registered electorate voted to leave (clearly a minority). There is now a legal dispute on the status of the referendum, with some legal experts pointing out that the referendum is not legally binding but merely advisory. The new Government, however, has said it is committed to carrying out the wishes of the people, as expressed by those who voted.
[2] Also reported in The Independent.
[3] Ibid [2].
[4] See the article in edie.net for more responses to the announcement.

Photograph

Photograph: View across Llyn Morwynion, looking east towards Rhinog Fawr (Gwynedd, Wales) © Copyright Nigel Brown and licensed for reuse under this Creative Commons Licence. Located roughly in the centre of the Snowdonia National Park, North Wales, Rhinog is a designated Special Area of Conservation, protected under the EU Habitats Directive. The listing on the Joint Nature Conservation Committee website says Rhinog is representative of upland European dry heaths and contains high-quality examples of
old sessile oak woods, among other features.

In or Out? Environmental campaigners discuss the EU referendum

How will Thursday’s vote affect environmental policy? The RSPB, the Wildlife Trusts, World Wildlife Fund and Friends of the Earth examine the evidence

June 22nd 2016
On Thursday 23rd June, the UK is holding a referendum on its membership of the European Union. Two issues have tended to dominate the debate. For those who want Britain to leave, the main issue is immigration; for those who want Britain to remain, it’s the economy. But how will the outcome affect environmental policy?

Organisations such as the RSPB and Friends of the Earth have been working to ensure that the environment is not forgotten in the debate about EU membership. The RSPB has canvassed views from representatives of the two official campaigns, ‘Britain Stronger in Europe’ and ‘Vote Leave,’ asking them to explain how their proposals would help protect the environment. [1]

Speaking on behalf of the remain campaign, Caroline Lucas MP gave three reasons why staying in the EU would benefit the environment. Firstly, it meant Britain was party to a set of common rules that serve environmental protection and set limits to pollution and waste; the EU’s Birds and Habitats Directives and the EU’s Maritime Safety Agency were cited as examples. Secondly, she argued that the EU helps to tackle climate change by setting ambitious plans for reducing energy consumption, limiting carbon emissions, and transitioning to renewable energy sources. Thirdly, she referred to EU’s funding for research on environmental protection: “The EU LIFE programme,” she said, “worth over £600 million, backs 11 UK environment projects in the areas of environment policy, nature and biodiversity. In addition to this, the EU’s research programme is expected to provide £8.3 billion in funding for cutting edge research at our universities, which will help us develop new sustainable technology and further our understanding of our planet and habitat.” She also mentioned EU’s action to regulate pesticides that are known to kill bees, and work on banning the hunting of seals and dolphins.

George Eustice MP, Minister for Farming, Food & the Marine Environment, spoke on behalf of the leave campaign. He said: “It is time to question the lazy assumption that environmental improvement can only occur when democratic government is set aside in favour of a pan-European legal system, and when the public are disempowered… We should not seek to side step the public through technocratic EU law. Instead we should engage the public to secure genuine, politically-led change.” He referred to the Berne Convention and its legally-binding commitments to improve habitats and protect wildlife, which the UK signed up to in the late 1970s. If the UK had stuck with that model, he said, and taken responsibility ourselves for delivering improvements through tailored national legislation, progress would have happened more effectively and perhaps faster. “Instead,” he said, “we abdicated all responsibility to the EU and sat on our hands like infants waiting to be told what to do. It’s time to grow up and take control.”

How do these arguments stack up? The RSPB says EU policy has had both positive and negative consequences for the environment: “Current evidence suggests that the EU has had a positive impact through some of its environment policies, most notably through the Birds and Habitats Directives but also by setting water quality, climate change, air quality and renewable energy targets. However, significant concerns remain about some sectoral policies (such as for agriculture and fisheries) and environmentally harmful subsidies.”

The RSPB highlights two aspects of EU policy to illustrate this point. Firstly, farming policy; and secondly, nature legislation. [2]

On farming policy, the RSPB says: “Agriculture policy in the EU was historically about driving up food production. As a result trees, hedgerows and wild flowers disappeared from our countryside – squeezed out by bigger fields, ever-bigger farm machinery and an increasing reliance on pesticides. This intensification of agriculture is the number one cause of declines in the UK’s wildlife in recent decades… Changes have reduced some of the harmful impacts, and a small proportion of the EU Common Agriculture Policy (CAP) budget does now go towards supporting nature-friendly farmers and the great work they do. But the EU’s agriculture policy continues to fail farmers and our wildlife, whilst accounting for almost 40% of the EU budget – there’s a long way to go to reach a truly sustainable agriculture policy for the EU.”

On the other hand, the RSPB says the EU’s nature conservation laws “have been a driving force for establishing and strengthening nature conservation measures in the UK and other Member States. These laws provide protection for wildlife, in particular by safeguarding places that are important for them. Over 20,000 square kilometres of land are protected in the UK alone – including the New Forest, Ramsey Island, and the Moray Firth. These laws have been a lifeline for otters, marsh fritillary butterflies and bitterns, among many others.”

To examine these issues in more detail, the RSPB joined forces with the Wildlife Trusts and the World Wildlife Fund in March to commission a report by the Institute for European Environmental Policy (IEEP), an independent research institute. [3] The report examines the EU’s track record on the environment and produces the evidence which is summarised above. In addition, the report looks at different UK exit scenarios and considers the arrangements that would need to be established to maintain some of the existing environmental protection provided by EU membership.

Two exit scenarios are examined: one is leaving the EU but staying in the European Economic Area or European Free Trade Association; the second is a complete exit and total independence. On these exit scenarios, the report says: “Recent UK government policy has tended to favour deregulation and competitiveness over environmental regulation, so leaving the EU would result (in the immediate term at least) in considerable uncertainty for wildlife, and for business investment in green infrastructure.”

This last point is taken up in a blog post by RSPB Chief Executive Mike Clarke. He says the RSPB is delighted that both campaigns responded positively to the challenge to set out how their respective positions will deliver for nature. “However,” he says, “no one from the ‘Leave’ campaign has yet been able to reassure us that we wouldn’t need to start again from scratch were we to leave the EU. What will happen to nature in the meantime? Recent calls from supporters of ‘Leave’ to scrap the Nature Directives – which have been proven to work so effectively where properly implemented – are of great concern.”

The IEEP report says that “Britain’s membership of the EU has, on balance, delivered benefits for our natural environment that would be hard to replicate if we left,” and this view is echoed by Mike Clarke. He concludes: “In weighing up the current evidence, the uncertainties and the balance of risks, we have concluded that the safer option for nature is for the UK to remain a part of the European Union.”

Friends of the Earth: “If we leave the EU, the impact on our environment will be negative and long term.”

In July 2015, Friends of the Earth produced a policy position paper on the UK’s membership of the EU. [4] The paper summarises the environmental gains but also points out the problems: “the Common Agriculture Policy, for example, has proved an environmental disaster.” It also points to the potentially damaging effects to the environment of the TTIP negotiations, the Transatlantic Trade and Investment Partnership currently under discussion with the EU and the USA as trading partners. The paper calls for the EU to change its priorities, improve existing legislation, and reinvigorate democracy.

Leaving the EU, however, would have a negative impact on the environment. The paper states: “To protect the environment and human health, we need to take action before damage occurs. Yet UK politicians routinely argue against precautionary decision-making… Fortunately, the precautionary principle is enshrined in EU treaties. EU-wide laws also prevent countries gaining a competitive advantage in their industries by setting lower environmental standards. If we leave the EU, the impact on our environment will be negative and long term.”

In a series of blog posts, Friends of the Earth campaigners describe the environmental gains of EU membership in more detail:

  1. Cleaner Beaches: Campaigner Anna Baum says the UK pumped untreated sewage into the sea until 1998, longer than any other country in Europe. Successful legal action by the European Commission to enforce the EU’s 1976 Bathing Water Directive resulted in improvements to many of the UK’s beaches, but only 60% meet the new ‘Excellent’ standard of the revised 2006 Bathing Water Directive: “If the UK leaves the EU, we will no longer be subject to the Bathing Water Directive. Without external EU pressure it seems likely that standards will slip.”
  2. Protecting Bees from Harmful Pesticides: In 2013 a majority of EU member states voted to restrict the use of three pesticides known to be harmful to bees, following a report by scientists across the EU into the reasons for declining bee populations, with 33 species considered to be under threat of extinction. Sam Lowe says: “If we weren’t in the EU, these dangerous pesticides would never have been restricted in the UK. The UK vigorously opposed the introduction of the restrictions despite the scientific evidence.”
  3. Protecting Biodiversity and Natural Habitats: The EU is currently reviewing its Nature Directives and is under pressure to relax them, on the grounds that they hamper development and economic growth, and impose costs and regulatory ‘red tape’ on business. Sam Lowe says the UK has a poor track record of putting nature first: “The farming minister and prominent leave campaigner, George Eustice, told The Guardian that the birds and habitats directives would go if we vote to leave the EU, describing them as ‘spirit crushing’.” [5]
  4. Rethinking Waste: The Circular Economy: EU Directives such as the Landfill Directive and the Waste Framework Directive have set targets for recycling and the amount of waste going to landfill sites. “All of this has led to a cultural shift in favour of recycling,” says Henry Chown, with the UK close to meeting the target of recycling 50% of household waste by 2020. However: “If we left the EU, the first thing we’d miss out on would be the Circular Economy Package.”
  5. Tackling Climate Change: Reducing carbon emissions and the burning of fossil fuels will help to tackle climate change. In 2009, the EU’s Renewable Energy Directive set a European-wide target of achieving 20% of its energy from renewable sources by 2020. It also set national targets and requested member states to produce action plans setting out how they would meet their obligations. Sam Lowe says: “This has had a huge impact on the UK. It has been largely responsible for the rapid growth in renewable electricity that we have seen in the last five years.” However: “The UK has been one of the fiercest critics of renewable energy targets. As a result, the next phase of the Renewable Energy Directive looks to be far weaker than what is needed… Recent government attacks on solar and onshore wind suggest an uncertain outlook for UK renewables post-Brexit.”
  6. Improving Air Quality: Sam Lowe says: “EU action on pollution has led to big improvements in the quality of our air but much more needs to be done.” For example, the UK has broken EU safety limits for nitrogen dioxide emissions for a number of years, which led environmental law firm Client Earth to take the UK Government to court. This resulted in the Supreme Court ruling that the government must take “immediate action” to meet EU safety standards. Given the UK’s track record, it seems highly likely that leaving the EU would lead to a lowering of safety standards.
  7. Protection from Harmful Chemicals: Dr Michael Warhurst is an Executive Director of CHEM Trust, a UK charity that aims to prevent chemical products from causing long-term damage to the environment and human health by ensuring that safer alternatives are used instead of more harmful ones. Writing for Friends of the Earth, he says EU chemical regulations in the form of REACH represents the world’s leading chemicals regulatory system. The system improves our knowledge of chemical hazards, helps companies use chemicals more safely, and restricts the use of some of the worst chemicals. “The UK has not been at the forefront of trying to ensure tight controls over chemicals (unlike Sweden or Denmark),” he says, “so we consider it unlikely that a UK outside the EU would put in place measures comparable to those in the EU.”
  8. Sustainable Fishing: Finally, in a guest post, Griffin Carpenter and Bryce Stewart, two academics working in environmental economics and maritime ecosystem management, unravel some of the misconceptions surrounding the EU’s Common Fisheries Policy. A recent analysis of 118 years of statistics revealed that the vast majority of the decline in fish stocks occurred prior to the implementation of the Common Fisheries Policy in 1983: “In fact, the policy is now overall helping, not harming, the country’s fisheries. Since EU policy was reformed in 2002, the health of many fish stocks has improved. By 2011 the majority of assessed fisheries were considered to be sustainably fished… The Water Framework Directive and Marine Strategy Framework Directive commit EU members to restore and protect the environment. It is therefore unclear why the UK would want to abandon ship at this point.”

Acknowledgement

Photo: Cors Caron and the Afon Teifi near Tregaron, Ceredigion © Copyright Roger Kidd and licensed for reuse under this Creative Commons Licence. The photo shows the River Teifi “flowing through the extensive raised bog of Cors Caron at its southern end, seen from the old Teifi bridge at Pont Einon. Cors Caron is a raised bog system covering more than 325 hectares. It is 6 kilometres in length and provides a habitat for a wide range of wildlife and plants. The bog itself was formed 12,000 years ago when the last of the Ice Age glaciers melted away. A large shallow lake was left, which very gradually filled with sediments and vegetation, forming peat and later, acid peat. In 1955, Cors Caron was declared a National Nature Reserve in order to preserve this increasingly scarce land form. In 1993, Cors Caron was placed on a list of wetland sites of international importance under the terms of the Ramsar Convention.”

The Afon Teifi / River Teifi is listed as a Natura 2000 site, protected under the EU Habitats Directive since 1998. The EU data says the site covers a total of 715 hectares and protects 8 species of the Nature Directives and 6 habitat types of the Habitats Directive. Natural Resources Wales says: “Wales has 20 Special Protection Areas for vulnerable birds and 92 Special Areas of Conservation for other rare species and threatened natural habitats. Together they are known as Natura 2000, and along with areas across Europe, they form an unparalleled network of international importance for nature conservation. Wales’ Natura 2000 network covers more than 700,000 hectares (8.5% of Welsh land area and 35% of territorial waters).” Management of these sites was helped by funding from the EU’s LIFE Programme.

References

[1] ‘The RSPB: EU referendum: Statements from the official campaigns’.

[2] ‘The RSPB: EU referendum: What does the EU do for nature?’

[3] The EU, the environment and potential consequences of a UK departure from the Union, Institute for European Environmental Policy (IEEP). Available as a PDF download from the IEEP website. The report is summarised in ‘The EU & Our Environment: What UK membership means for the environment, and potential consequences of a UK departure from the Union’ (a joint publication from the RSPB, WWF and The Wildlife Trusts, 1 June 2016). Available as a PDF download from the RSPB website.

[4] ‘Our Position Paper on EU Membership,’ Friends of the Earth, July 2015. Available as a PDF download from the Friends of the Earth website.

[5] ‘Brexit would free UK from ‘spirit-crushing’ green directives, says minister’, Arthur Neslen in The Guardian.

Scientists warn of widespread pollution from historic landfills

4,000 old landfill sites are at risk of flooding, some containing hazardous waste

March 9th 2016
Scientists at the British Geological Survey and Queen Mary College, University of London, are warning that the UK faces the risk of pollutants leaking out from the large number of historic landfill sites that pre-date EU waste regulations introduced in the 1990s. It is estimated that there are 21,027 historic landfills in the UK, with 1,264 sites situated in estuaries and coastal areas at risk of erosion, and a further 2,946 sites located on floodplains. Current regulations require landfills to be sealed with a protective lining, thereby insulating the waste from the surrounding land and watercourses. However, older landfill sites, some of which date from the late nineteenth century, are unlikely to have such protection, leaving them at risk of flooding from coastal erosion or severe weather such as heavy rain and storm surges.

A report produced by CIRIA in 2012 [1] says that the number of historic landfills is likely to be an under-estimate owing to a large number of unrecorded illegal sites. In addition, as the 21,000 historic landfills were developed when there were no legal requirements for their management or monitoring, records of the waste that was deposited in them can be incomplete or non-existent. Speaking to The Independent, Dr Daren Gooddy, an environmental chemist at the British Geological Survey, said he was particularly concerned about those historic landfills that are located in areas with a high flood risk and that contain dangerous substances such as hazardous chemicals and asbestos. He calculated that there are 1,655 such sites. “While it’s hard to say for sure, I would suggest that many of these legacy sites are vulnerable to flooding,” he said. “Even when flooding does not occur these sites leach out contaminated waste, which generally gets transported towards the nearest river.”

Dr Kate Spencer, environmental chemist at Queen Mary College, University of London, has been carrying out research to assess the potential impact of flooding and coastal erosion on historic landfill sites on low-lying coastal areas. Her research team is working with the Environment Agency to create a vulnerability ranking which will help to identify those sites that present the greatest danger, based on the risk of flooding and the contents of the landfill. “The work we’ve done in the South-East suggests that there has already been widespread pollution from historic landfills,” she said. “At one site we actually found a blue poison bottle from a pharmacist that had a skull and crossbones on it, with a stopper and liquid inside.”

In a blog post for Friends of the Earth, Guy Shrubsole reports on a visit in 2015 to a leaking landfill at Tilbury on the Thames estuary. Walking along the coast, he discovered that a two kilometre stretch of the Thames foreshore was filled with waste. “But this wasn’t just rubbish deposited by the waters of the Thames as it sweeps through London,” he says. “It was clearly eroding out of the sandy banks next to the shoreline, lapped by high tides. The remains of a former sea wall, derelict and ineffective, could still be seen below the high-water mark. It was providing no defence at all to the hungry estuary, which had chewed away at the land to reveal layers and layers of landfilled refuse.”

Guy Shrubsole says that maps produced by the Environment Agency show there are several historic landfills in the Tilbury area, but tidal defences at such sites are not maintained, leaving them with no protection from tidal surges and rising sea levels. “No one is taking any responsibility for the huge amounts of waste that is now very clearly leaking out of the old Tilbury landfills,” he says. “And this is just one example. If, as the research suggests, there are thousands of old landfills at risk of leaking their wastes into watercourses and the sea across the UK, then this is a massive, ticking time bomb.”

Dr Kate Spencer said that historic landfill sites “date back to a time when there were no protective linings, no regulation about what went in and little in the way of records about the contents. Many are on coastlines highly vulnerable to coastal erosion, storm surges and flooding and the big concern is that they will become even more vulnerable as climate change makes storms more frequent and intense.”

As we reported in a previous news item, scientists from the British Geological Survey have carried out research into river pollution from historic landfill sites. The focus of their investigation was Port Meadow which lies on the banks of the River Thames, north-west of Oxford, where 11 such sites are located. Their research, based on ammonium sampling, concluded that there are potentially thousands of historic landfill sites that are currently leaching large amounts of nitrogen into major rivers, which can damage water quality and trigger nutrient pollution. As climate change makes flooding more likely, leakages from landfills located on floodplains are also likely to increase.

Reference
[1] Cooper, N., Bower, G,. Tyson, R., Flikweert, J., Rayner, S., Hallas, A.: Guidance on the Management of Landfill Sites and Land Contamination on Eroding or Low-Lying Coastlines (C718). CIRIA, 2012.

Acknowledgement
Photograph: Cottenham Landfill, near Chittering, Cambridgeshire © Copyright Hugh Venables and licensed for reuse under this Creative Commons Licence.

Mineral Products Association celebrates quarry restoration at ‘Quarries and Nature 2015’

Mineral Products Association’s Restoration Awards now in their 45th year

Oct 21st 2015

Over sixty environmental and conservation organisations attended an event last week hosted by BBC ‘Country File’ presenter Helen Skelton at the Royal Society in London. The event – ‘Quarries & Nature 2015 – Building on Britain’s Natural Capital’ – was organised by the Mineral Products Association and celebrated the work of the mineral products industry in quarry restoration and wildlife conservation.

In a press release, Nigel Jackson, the Mineral Products Association’s CEO, said: “We are celebrating and showcasing some of the wonderful things our industry is doing for biodiversity and wider environmental, social and economic benefits. As well as delivering improvements in biodiversity and natural beauty for their own sake, we deliver other benefits and services such as public access, culture and recreation, water management, and carbon sequestration through working, management and restoration of land. This event reaffirms that this is an industry that is uniquely placed to deliver not only biodiversity, but also wider benefits, contributing to the stock of Natural Capital.”

The Mineral Products Association’s Restoration Awards are now in their 45th year. The awards recognise exceptional practice in quarry restoration. This year, the prestigious Cooper-Heyman Cup for outstanding achievement in restoration went to Hanson UK, working in partnership with landowner Geoffrey Hemus, the RSPB, Aston Villa Football Club and the Middleton Hall Trust, for its work at Middleton Hall Quarry in Warwickshire. The judges said of the project: “The project at the 470 hectare site has produced a mix of football pitches, reed beds, woodland, pasture and fishing. Hanson worked closely with the Environment Agency on experimental extraction of gravel from the river bank, which created islands, gravel bars and other features to enhance the habitat value and help alleviate flooding in the wider area.”

CEMEX UK was highly commended for its work at Powburn Quarry in Northumberland. The judges said: “At Powburn, CEMEX, working in partnership with landowner John Carr Ellison, have created a place that is loved by both wildlife and the community, not least the local primary school which has its own direct access. The site has two lakes, one for fishermen as well as nature conservation. Facilities include a bird hide, interpretation boards, a dipping pond and disabled access.”

Gallagher Aggregates was also highly commended for its work at Workhouse Quarry, near Maidstone in Kent. Gallagher Aggregates handled the filling and restoration of the quarry and its sister company now farms the land. The judges said: “The site was filled with inert construction waste that could not be recycled. Today, the completed land form includes a wildlife corridor with hedgerows linking two older woodlands, as well as a drainage pond that provides another valuable habitat.”

Mineral Products Association’s Biodiversity Awards

The Mineral Products Association, in association with Natural England, has also been awarding contributions to biodiversity for the last three years. Its Biodiversity Awards showcase the variety of projects that minerals companies are undertaking to enhance biodiversity and protect threatened species. Entries are invited from companies both large and small under the award categories of Landscape-Scale, Innovation, Planned, and Individual Contribution.

The overall winners of the Natural England Award for Landscape-Scale Biodiversity were Hanson UK and Aggregates Industries for their work at Batts Combe and Callow Rock in Somerset. This was a joint entry from the two companies, with their landholdings in the area covering around 450 hectares in all. Work in the area has been in progress for the last twenty years and the judges were particularly impressed by the joint collaboration with Somerset Wildlife Trust and Natural England in establishing wildlife corridors. The collaborative project is targeting conservation work to ensure maximum benefits are delivered in creating, managing and expanding calcareous grassland, woodland and hedgerow habitats and joining them up with the surrounding area.

Winners of the Innovation category in biodiversity were two projects being undertaken by CEMEX to help in the conservation of two rare bird species, the twite and the turtle dove. CEMEX is working with the RSPB to provide habitats for the twite in Derbyshire and for the turtle dove in Warwickshire. The company is managing hay meadows and creating conditions on the sites to allow pioneer plant species more usually associated with arable land to flourish and to provide seeds for the birds to feed on at critical times of the year. The turtle dove project is part of an international initiative by CEMEX with partners Birdlife in France and Spain.

The winner of the Planned Biodiversity award was Smith & Sons of Bletchington for their extension to Gill Mill Quarry in West Oxfordshire. The restoration plan includes the creation of 120 hectares of priority habitats, including 60 hectares of reed beds, one of the largest reed beds in southern England. It will also include extensive new public access and a number of eco-lodges to benefit the local economy and provide revenue for the sustainable management of the planned nature reserve. The judges were particularly impressed by the scale and ambition of the project, and the fact that the design reflects the views of conservation bodies, the local community, the local authority and the Ministry of Defence. The site lies under the flight path of RAF Brize Norton and the extensive reed beds will help to reduce the risk of bird strike for aircraft whilst providing habitat for rare species including the bittern, water vole and otter. The scheme also makes a landscape-scale contribution to the wider Windrush Valley and helps to manage flood risk.

Chris Pennock of Tarmac won the Individual Contribution category in biodiversity for his work at Nosterfield Quarry in North Yorkshire. He has a particular interest in the black poplar which has led him to develop partnerships with the local council and conservation groups to help conserve this theatened species and propagate trees for planting in the quarry. He has also been instrumental in the management of the site and educating people about the quarry and its wildlife.

The Mineral Products Association also presented Special Awards for outstanding contributions to quarry restoration, which included an award to the Hills Group, Hanson UK, the Cullimore Group, Aggregate Industries and Tarmac for their contribution to the restoration of the Cotswold Water Park in Gloucestershire. The MPA says the area is larger than the Norfolk Broads and collectively forms a major asset for wildlife conservation and recreation.

“Biodiversity underpins the country’s Natural Capital”

The live presentations at the event were complemented by on-screen video footage of the winning sites. This year also saw the launch of a Nature Photo competition. Speakers at the event included Natural England’s Strategy and Reform Officer, Alan Law, who said: “We are delighted to be working with the Mineral Products Association again on this year’s Landscape-Scale Biodiversity Award. The award always attracts fantastic examples of companies working in partnership with others to enhance and build the network of places supporting our wildlife. This brings to life the vision to make places better for wildlife, making them bigger, creating more and joining them up… Biodiversity underpins the country’s Natural Capital and so the landscape-scale projects led by minerals companies are not only enhancing wildlife, but also building the local Natural Capital.”

Tony Juniper, well-known environmental campaigner and long-standing member of Friends of the Earth, also spoke at the event. He said a number of industries have realised that they have a key role to play in nature conservation and restoration and are demonstrating how it is possible, through some thoughtful planning and modest investment of resources, to achieve really outstanding results. “Mineral products companies in the Mineral Products Association are among the real leaders,” he said.

For the full list of awards, see the Mineral Products Association website.

Acknowledgement

Photograph: Pool at Middleton Lakes RSPB Nature Reserve, near Drayton Bassett, Staffordshire © Copyright Graham Taylor and licensed for reuse under this Creative Commons Licence. Hanson UK won the prestigious Cooper-Heyman Cup at the 2015 MPA Awards for restoring the former gravel pits at Middleton Hall Quarry. Part of the land was bought by the RSPB in 2007 and is now an RSPB nature reserve. The judges said of the project: “The project at the 470 hectare site has produced a mix of football pitches, reed beds, woodland, pasture and fishing.”