Environmental Legal Update May 2010

Those of you who have been attending these meetings regularly will know that these have never been out of the news and today is no exception. The latest set of amending regulations devolves enforcement in Scottish waters to the Scottish assembly. The use of the EDR was by Mid Devon DC in a case where there had been a spillage of diesel fuel during a delivery to a domestic property, which had seeped through the wall and the floor into the living space. The fumes were causing nausea to the occupants. EDR were used to compel the tanker company to pay for the clean up and to focus the minds of its insurers on agreeing to cover the costs much more quickly than would normally be the case. This was: The tanker company was carrying out an economic activity within the meaning of the regulations and was also the operator of the activity A dangerous substance within the meaning of the regulations was being filled or released into the environment, so it if it was environmental damage it was environmental damage covered by the regulations But was it environmental damage? The definition is “ contamination of land by substances, preparations, organisms or micro-organisms that results in a significant risk of adverse effects on human health” The answer is probably yes because the word “significant” defines the risk rather than the consequences. However, this is not really what the regulations were envisaged for at all.
The Environmental Civil Sanctions (England) Order 2010. Consultation ended on 7 th May and will be published on 21 st June. The consultation contains as annexes: A new Enforcement and Sanctions Policy to cover the use of civil sanctions A new Enforcement and Sanctions Guidance to EA officers on the use of the ESS An extract from a new Offence Response and Options template, which is the practical outcome of the two previous documents, essentially an offence by offence guidance to the range of responses possible the factors that would indicate the use of each of them the normal starting point The most interesting feature is that Packaging Waste offences: will no longer be prosecuted if committed unintentionally instead they may be dealt with by a VMP, but The offender can offer an enforcement undertaking as a way of avoiding even a VMP (e.g. to register and pay the backdated registration fees as compensation to the EA). More alarmingly the guidance says to officers that an advantage to an offender of a VMP is that he will not have to pay for representation at court, which suggests a very non HRA compliant attitude on the part of the EA. There is a lengthy explanation of the method of calculation of a VMP. It is horrendously complicated, far more complicated and prescriptive than the process by which magistrates fix fines. The main financial consequence of the use of a VMP seems to be reduction of legal costs (and risk) for the EA and a huge increase in potential fines, particularly as there is no allowance for financial hardship. There will be no reduction of legal costs for the offender, as specialist advice would need to be sought as to how to maximise the deductions from the starting point figure.
The ASA has waded into the “greenwash” arena with new adjudications and a some new codes. Ecotricity claimed in a mailing to residents “We’ve consulted with the statutory bodies … and all responses are positive so far”. The complainant said that the Cotswolds Conservation Board had objected to the consultation. Ecotricity said that the objection had been made after the mailing and that CDD was not a statutory body. The ASA said that Ecotricity had known that the CDD was unhappy about the proposals before the mailing and that even though CDD was not a statutory body, it was. Renault claimed that its electric car made zero emissions, but the ASA said that that was not true because the ad did not make it clear that that was only if green electricity was used to charge it up, otherwise the mix of domestic electricity would mean that some of it would have been generated using fossil fuels. Renault then claimed that its cars reduced emissions by 90% compared with the electricity mix of French generators. You might think that this was fair enough as it was an EU wide ad, but the ASA said that UK consumers would not realise that there was a difference in the mix between French and UK generators and that in the UK the mix contained higher proportions of fossil fuel generated electricity. The new code says: The basis of claims must be clear All terms used in the ad must be clear to consumers There must be a high level of substantiation Unless the ad makes it clear otherwise, the claim will be taken to refer to the whole life cycle of the product (whatever that means) and in all circumstances to its total environmental impact Claims must not imply that a product is better than others by the absence of a constituent which is not normally found in any such product or which is banned from all of them by law Claims must not imply that a product has been reformulated to be greener than a previous version if the previous version has never had a demonstrably adverse effect on the environment DEFRA is consulting on a revision to its green claims guidance and claims itself that it is aligned with the CAP. Confusingly, the DTI has a publication called the green claims code, which DEFRA says is still valid but “will not need to be referred to separately” if the new guidance is implemented.
Current rules mean that environmental campaigners who take their case to court may have to pay tens of thousands of pounds to the other side if they lose. This is in breach of the Aarhus Convention, which states that access to justice on environmental matters must not be “prohibitively expensive”, campaigners claim. In a report published in May 2008, the Working Group said rules on legal costs take no account of the recognition in the 1998 Aarhus Convention that there is a public interest in ensuring environmental laws are not contravened. The convention stipulates that procedures for accessing the law should be &quot;fair, equitable, timely and not prohibitively expensive&quot;. The Jackson review was commissioned by the Master of the Rolls, the second most senior judge in the country, to consider whether changes were necessary to cost rules for civil litigation. Mr Justice Jackson, a Court of Appeal judge, looked into judicial review cases as part of this. He concludes that all claimants in judicial review cases should not normally be at risk of having to pay the other side’s costs. This is known as qualified one-way costs shifting. This recommendation would apply to all judicial review cases. Mr Justice Jackson says this would be the simplest and most obvious way to comply with the UK’s obligations under the Aarhus Convention, which it ratified in 2005. The Reasoned Opinion is a final written warning to the government before the EU commences proceedings. The UK government is one step nearer a potential €11m fine after the European Commission today announced it would continue its legal action over the high costs of taking environmental cases to court, which it says is a breach of the Aarhus convention. It has two months to respond failing which proceedings will be commenced.
The first ducks the issue on the problems caused by the case of R (on the application of Ethos Recycling Ltd -v- barking and Dagenham Magistrates Court. The second is aimed at EA staff. The third is a significantly improved rewrite of the old guidance The fourth is late and lengthy and I haven’t read it yet. The last has the potential to conflict with the draft guidance issued by the EA for VMPs

Environmental Legal Update May 2010

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Environmental Legal Update May 2010

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