"Legal Update" John Mitchell, Blake Lapthorn
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The document provides an environmental legal update covering several topics: 1) Implementation of civil sanctions for environmental breaches has been delayed until September due to a delayed response from the Environment Agency. 2) DEFRA is consulting on proposed amendments to the Environmental Permitting Regulations covering issues like permit transfers and traffic impacts. 3) DEFRA research found that green claims in advertising and on product packaging increased significantly in recent years but most claims lacked supporting evidence.
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"Legal Update" John Mitchell, Blake Lapthorn
- 1. Environmental legal update August 2010 John Mitchell Head of Environment team
Editor's Notes
- Was due for publication in June. Statutory three month interval meant would have come into force in September. Now will not be in force until December at the earliest. Enforcement undertakings will not be accepted by the EA unless the offender can demonstrate that he has consulted all affected parties Not clear whether consultees will have to agree or not. VMPS will have the cost of remediation and compliance deducted from the final calculation. Many parties not happy with this. DEFRA is consulting on changes to the EPR. One proposed change is that breaches of the EPR will be enforceable by civil sanction. Not a good proposal as the EA will undoubtedly be more gung-ho if they know they do not have to prove the breaches in court and if they are over a barrel with unreasonably complaining neighbours.
- The reason for the changes to the transfer procedures is that in all cases the transfer application has to be accompanied by the consent of the holder of the permit and the transferee. [In the case of each…] The proposal to include water abstraction and impounding in the regime is not a surprise and is very welcome. At the moment there is an arcance procedure under the WRA and this will improve matters. Streamlining appeals is because EPR appeals go the Planning Inspectorate but Civil Sanctions appeals will go to the First Tier Tribunal. If all appeals were directed to the First Tier Tribunal, it would be the beginning of an environmental court, perhaps something to be welcomed. Certainly the Head of the Tribunal Service would welcome it (but he happens to be the President of the UKELA)
- You’ll recall that I told you last time about the proposed revisions to the Code We have seen cars and energy adverts under the spotlight at previous meetings. The last two stats support the anecdotal view that there is a lot of greenwash about.
- “ *Calculated on the basis of rolling resistance tests conducted by TÜV SÜD Automotive in 2009 on 15 key sizes for the European market “ Michelin Tyre plc said the ad had been cleared by Clearcast as acceptable for broadcast. Clearcast said their motoring consultant had confirmed the claim was over the life of the tyre (45,000 kilometres). Given the large amount of fuel the ad claimed could be saved, they said they considered this was a statement of the obvious and the ad was approved accordingly. The complainant challenged whether the ad misleadingly implied that the vehicle could operate without using petrol and producing emissions, because he understood the vehicle could only operate without a V6 petrol engine for a limited distance. Porsche Cars Great Britain Ltd (Porsche) explained that the Cayenne S Hybrid could be powered by an electric motor without support from the V6 petrol combustion engine. They said the car could cover short distances whilst travelling up to a speed of 37 mph, without using the V6 petrol engine. Porsche argued that, because the ad did not claim the car could remain at a speed of 37 mph for a specified distance, they did not need to include the distance in the ad We considered that the claim implied that drivers could travel for any distance without engaging the petrol engine, thus realising a saving in emissions and fuel, so long as the driver remained at, or below, 37 mph, which was not the case. The complainant challenged whether the claims "0% EMISSIONS" and "zero CO2 when driving" were misleading, because they understood that the car needed to be charged with electricity from the National Grid, which would result in the production of emissions BMW explained that the headline claim "0% EMISSIONS" was supported in the body copy by the claim "zero CO2 emissions when driving". They believed that the inclusion of the phrase "when driving" limited the claim to when the car was in use and did not suggest the car was zero carbon across its life cycle. We considered that the claim "0% emissions" was likely to be interpreted by readers to mean that the cars use would not result in the production of emissions. We considered that the inclusion of the phrase "when driving" was contradictory to the overall zero emission claim and the impression that the cars use would not result in the production of emissions.