This quarterly environmental law update provides a summary of a cross-section of news stories in the period April 2022 - June 2022.

April 2021

NEW PUBLIC BODY ANNOUNCED TO OVERSEE UK ENERGY NETWORK

On 6 April 2022, the government announced it would be launching the Future System Operator (FSO), a new public body tasked with reviewing the country’s energy network and working towards its integration with new technologies coming to the fore, i.e. hydrogen power. It will also oversee the UK gas system, and provide independent advice and input to the government and Ofgem. The priorities are to work in collaboration with energy suppliers to ensure the network remains resilient in the supply of power to the population and assist with the UK’s energy strategy for the future.

The announcement comes after a lengthy consultation with the energy sector in which it was broadly accepted that a new public body, separate from the government, was needed to oversee the UK’s future in energy. The FSO is not yet established as legislation is required but a timeframe for this will be discussed with interested parties.

VEHICLE STOP CHECKS ON WASTE CARRIERS

In late March and early April 2022, it was reported that the Environment Agency, Gloucestershire Police, the Driver Vehicle Standards Agency, Gloucester City Council and Tewkesbury Borough Council in collaboration had been carrying out a number of roadside vehicle stop checks in Gloucester to ensure that waste carriers were in compliance with the regulations. 16 waste carriers and commercial vehicles were stopped and checked; 11 were carrying waste and 2 of those were found not to have the requisite registration. The assembled team provided advice to the drivers to register and the Environment Agency is considering whether enforcement action will be taken against the relevant waste companies.

GOVERNMENT CRACKS DOWN ON FLY-TIPPING

In a move to crack down on fly-tipping, the government has unveiled plans to change the current system under which local councils are able to charge householders for the disposal of DIY/renovation waste. Householders will no longer have to pay to get rid of waste including plasterboards, bricks and bath units. The changes could save households up to £10 per item of waste. Alongside this, councils will be offered grants to tackle fly-tipping through participation in trial projects (i.e. CCTV in hotspots).

An enquiry will also be launched into the use of booking systems at recycling centres (many of which were implemented during the pandemic to stem the overwhelming surge of people clearing their homes). The enquiry stems from concerns that the restrictions are making it more difficult to dispose of household waste, which in turn has led to increased fly-tipping. Fly-tipping has risen significantly during the pandemic and is reported to cost the UK up to £392 million a year.

BYELAWS INTRODUCED TO PROTECT FOUR OFFSHORE MARINE PROTECTED AREAS

On 13 April 2022, the government announced that damaging fishing activity will be prohibited in four Marine Protected Areas (MPAs). The prohibition will be contained in new byelaws in the Fisheries Act preventing the use of bottom trawls, dredges, demersal seines and semi-pelagic trawls (“bottom towed gear”) in certain areas. There will be further restrictions in two especially sensitive areas preventing the use of certain static equipment such as pots, nets or lines where there is evidence that they are harming wildlife or habitats.

The new bans are possible now that the UK is no longer governed by specific EU laws which allowed the sites to be fished using such equipment and it is hoped that the measures will further the protection of the UK’s wildlife and rare habitats.

May 2021

NATIONAL AUDIT OFFICE PUBLISHES BRIEFING ON ENVIRONMENT COMPLIANCE AND ENFORCEMENT

On 24 May 2022, the National Audit Office published a briefing titled Environment compliance and enforcement. The briefing provides an analysis of the impact of Brexit and the new Environment Act 2021 on environment protection in the UK, with the aim of supporting the Environmental Audit Committee’s scrutiny of the government’s recent work in this arena as we continue to move towards net zero by 2050.

The briefing explores the roles and responsibilities of the main bodies responsible for environmental compliance and enforcement and the recent changes. The recent changes include the “biodiversity net gain” initiative requiring developments such as house building to leave the natural environment in a measurably better state than before work started. A number of case studies are explored including waste crime, addressing the responsibilities of the Environment Agency, the standards which apply; the resources and spending; and the scale of compliance and enforcement activity.

ANGLIAN WATER FINED £300,000 AND £50,000 AFTER TWO INCIDENTS OF POLLUTION KILLING THOUSANDS OF FISH

Anglian Water appeared at Chelmsford Magistrates’ Court on 26 May 2022. The company pleaded guilty in September 2021 to causing an unpermitted pollution discharge contrary to environmental regulations. The offence related to an incident at Shenfield and Hutton Water Recycling Centre in June 2016 in which a fire caused pumps in one of the pumping stations to fail, allowing untreated sewage to flow out of an emergency overflow into the River Wid. Tests found that around 10 kilometres of the River Wid experienced high levels of ammonia for 3 days resulting in the deaths of at least 5,431 fish. Anglian Water was fined £300,000 and required to carry out immediate repairs on the equipment.

A few weeks later, Anglian Water received their third conviction of 2022 relating to the collapse of a sewer in Stanground, Peterborough. The water company had employed contractors Danaher and Walsh to fix the problem temporarily but the fix became blocked and sewage entered Stanground Lode, killing 2,413 fish (European Eel were amongst them, a “critically endangered” species). Both companies pleaded guilty at Peterborough Magistrates’ Court on 1 June 2022. Anglian Water was fined £50,000 (with costs of £24,387.58) and Danaher and Walsh was fined £10,000 (£5,000 in costs).

ENVIRONMENTAL PRINCIPLES POLICY STATEMENT PUBLISHED

On 12 May 2022, the government published a new legally-binding policy statement in line with the provisions of the Environment Act 2021 which will ensure environmental protection is embedded in all government policy-making. The statement is based on the five internationally recognised principles which include integration (that policy-makers should look for opportunities to embed environmental protection in other fields of policy that impact on the environment); prevention (policy should aim to prevent environmental harm); and polluter pays (that those who cause environmental damage should be responsible for mitigation or compensation).

It is intended that the Department for Environment, Food & Rural Affairs will support other governmental departments to implement the statement in their work, providing relevant training and information. The statement is currently in draft form but DEFRA hopes to publish the final version in autumn this year.

GUILTY PLEAS IN RIVER LUGG CASE

Natural England and the Environment Agency launched a joint prosecution earlier this year against landowner, John Price following an investigation into damage caused to a protected area in Herefordshire. The area was a Site of Special Scientific Interest (SSSI) and consent is required to carry out any works on the site which the defendant did not have and a stop notice was issued but not complied with. Please see our Q1 update for further information.

The first hearing took place on 18 May 2022 and the defendant entered a guilty plea to 7 charges. Sentencing is likely to take place later this year.

MORE THAN 30 COMPANIES FINED FOR BREACHES OF CLIMATE CHANGE SCHEMES

Data published on 24 May 2022 indicated that 33 companies received fines totalling £27 million during the financial year 2020-2021 for breaches of climate change schemes in place to reduce greenhouse gases.

The breaches were committed largely by energy companies under-reporting their emissions and failing to submit the necessary reports outlining their emissions; brewing and automotive companies failing to sufficiently reduce their energy use and carbon dioxide emissions (despite signing a voluntary agreement with the Environment Agency which gave them a discount on the Climate Change Levy in exchange); and manufacturers failing to complete audits of energy used and failing to identify cost-effective energy saving measures.

Liz Parkes, Deputy Director for Climate Change at the Environment Agency, warned that the fines should serve as an important reminder for all organisations to ensure that they are compliant and playing their part in tackling climate change.

GENETIC TECHNOLOGY BILL INTRODUCED IN PARLIAMENT

On 25 May 2022, new legislation was announced aiming to support the development of new technology in crop production. The Genetic Technology (Precision Breeding) Bill will allow for further research into new gene editing technology, which the UK had previously not been able to explore due to being bound under EU rules, with the aim of developing precision bred plants. The focus of this legislation will be on plants for now, and no changes will be made to regulations of animals.

Precision breeding involves a focus on beneficial traits that occur through traditional breeding and natural processes (therefore entirely separate to genetic modification) and developing plant varieties and animals with those traits in a precise way. For example, precision breeding techniques can remove the need for some pesticides or fertilisers, therefore reducing costs for farmers and reducing the environmental effects of farming, create safer food by removing allergens and preserve food security for the future.

JUNE 2021

UK IVORY ACT 2018 COMES INTO FORCE

On 6 June 2022, the Ivory Act 2018 came into force in the UK. The Act enforces a near total ban on the import, export and dealing of items containing elephant ivory in a drive to quash demand for ivory tusks which contributes to poaching and the decline of the elephant population. The ban covers ivory items of all ages with only very limited exemptions, requiring items to be registered or be subject to an exemption certificate. Penalties for breach of the Act include an unlimited fine or up to five years in prison, making this legislation one of harshest in the world for ivory sales.

£1.5 MILLION FINE BECOMES LARGEST EVER FOR AN ENVIRONMENT AGENCY CONVICTION IN THE SOUTH WEST

On 23 June 2022, Dairy Crest, owners of brands such as Cathedral City, was fined £1.5 million at Truro Crown Court - the largest fine ever awarded by the Environment Agency in the South West – after pleading guilty to 21 of 27 charges. The fine was in addition to costs of £272,747 which it had previously agreed to pay.

Dairy Crest’s Davidstow Creamery had changed production to focus on whey processing and the effluent being discharged had proved more challenging for the company to manage. Production had resulted in the release of harmful waste into the river; the coating of a noxious, black sludge; excess of substances such as phosphorous; and foul odours repeatedly affecting residents. The company had also failed to tell the Environment Agency within 24 hours of certain incidents on 7 separate occasions. HHJ Simon Carr was critical of Dairy Crest, commenting that the company had not shown consistent performance in response to the issues over the last 5 years.

MODERNISATION OF ENERGY TREATY WILL MEAN CHEAPER AND CLEANER ENERGY

The UK has reached a landmark agreement for a long-awaited modernisation to the terms of the Energy Charter Treaty (ECT). The treaty provides the framework for international trade and investment in the energy sector but was drafted and published in 1994, at a time when fossil fuels were the main form of energy production. The new treaty will concentrate on promoting clean, affordable energy in line with current global environmental objectives. It will also ensure that when striving to reach emissions reductions in line with the Paris Agreement, the UK can retain the power to adapt its own energy network in the way it wants and preserve continued foreign investment in green technology.

Warning flags have come from several EU countries, including Italy, Poland and Slovenia, who are facing long and costly legal challenges over reducing reliance on fossil fuels and growing their renewables. These cases have the potential to cost taxpayers billions and stunt the move to cleaner energy, something the UK government is keen to avoid by specifically removing the protection for new investments in fossil fuels in the new version of the treaty. The new version is due to be signed in November this year.