Protect the Environment Requires Strict Enforcement

4. Encouraging good practice to protect the environment requires strict enforcement of the Law. Discuss.

5. The principles of prevention, precaution, polluter pays and substitution are fundamental to Environmental Law; any future EU Environmental Action Programme must have the principles at heart. Discuss

6. General public access to information is an absolute pre-requisition for adequate legal protection of the environment. Discuss.

The four questions that I have chosen to answer are in ‘Bold’ above and numbered accordingly below.

Question 1

To begin with a brief explanation of what Secondary legislation is? It is law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of that primary legislation. Therefore,

Secondary Legislation is also known as a ‘Statutory instrument(s)’. There are three main types of Statutory Instrument; Orders’, Regulations’ and ‘Rules. Statutory Instruments may also be described as a ‘Scheme’, ‘Direction’ or ‘Declaration’. Different types of instruments serve different functions, but they all have the same legislative force. EU Directives are Statutory Instruments.

The Constitutional Reform Act 2005 provided for the establishment of a Supreme Court to replace the House of Lords as the Court of final appeal. On 1 October 2009 judicial authority was transferred away from the House of Lords to the newly created Supreme Court for the United Kingdom.

The Supreme Court is the final court of appeal and also has a role in the development of United Kingdom law. As an appeal court it cannot consider a case unless a relevant order has been made in a lower court. It is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland. It hears appeals on arguable points of law of general public importance, concentrating on cases of the greatest public and constitutional importance. It also maintains and develops the role of the highest court in the United Kingdom in respect of the common law.

EU Law is arguably the most important source of Environmental Law in the UK. As with most things concerned with and emanating from The EU, British public opinion could be said to be very ‘little islander’ in it’s attitude towards Europe and it’s influence over the UK, especially in respect of the Law.

1‘Primacy of EU law has existed since we joined the Union…[but] European law only takes precedence where member states have agreed Europe should have a competence’. – Tony Blair, British Prime Minister, 2004

The above comment outlines clearly the UK government’s position in respect of EU Law. Tony Blair, as a lawyer, clearly explains that it is each member state that has to agree the primacy of EU Law which is the concept that perhaps s not best understood by the British public?

The European Court of Justice is the final arbiter of the meaning of a provision of EU Law. It will arrive at its decisions using what can be viewed as the ‘spirit of the law’ rather than the letter. Community Law can take much more of an interpretive approach and therefore can be more creative. UK Law has tended mainly to be more literal in its interpretation and initially UK courts. A possible criticism of the ECJ is that it is not controlled by the European Parliament or the Commission. However, having the ECJ interpret for all 27 member states creates a cohesion that would be difficult to formulate, if left to each member state.

EU Law falls within three separate categories. There are Treaties, Regulations and Directives. Treaties have to be ratified within each member state i.e. the Treaty of Lisbon 2007 had to be ratified by referendum in each of the 27 member states.

Regulations are binding in all the member states and Directives are binding as to result but states may choose method of implementation. Regulations are “directly applicable”. This means they have the force of law within Member States without them having to be enacted by a member state. Direct applicability means that EC law becomes part of the national law without intervention of the national parliament.

A Directive is an order to a member state requiring it to change its domestic law to comply with EU policy. Directives are not ‘directly applicable’ and the method of implementation is left to the member state. There will usually be a time limit for implementation imposed. Directives are often passed by statutory instrument or an Order in Council. Directives are subordinate legislation and are therefore, subject to judicial review.

“Westlaw suggests that 596 statutory instruments concerned with the environment have been made since 1 January 2008.” [2]

It is arguable either way as to whether The Supreme Court is or is not undermined by the secondary legislation derived from EU Directives but it can also be seen that both the ECJ and the Supreme Court rely on each other to implement both the UK Law and the EU Policy.

Question 2

It can be argued that the primary function of Environmental Law is not to eliminate pollution altogether but to balance emissions against the needs of economic activity and ultimately growth. According to Wolf and Stanley “Much of environmental law concerns the regulation of polluting emissions discharged into the three environmental media—air, water and land.

There are three main types of environmental legal liability. The first is criminal, second clean – up, third civil and finally restoration and reparation.

In the UK much of the environmental liability would come under the following eight areas;

Statutory Nuisance: Initially introduced as a means of protecting public health the relevant current law is set out in the Environmental Protection Act 1990 (“the EPA”). Local authorities are responsible for enforcing law relating to statutory nuisances and usually do so in response to a complaint from a member of the public. Enforcement is through the service of an abatement notice which requires the person responsible for the nuisance to stop it occurring or restrict its occurrence. They must carry out any works necessary to comply and to fail to comply, without reasonable excuse, is a criminal offence.

What constitutes a statutory nuisance is set out in section 79 of the EPA. Certain activities or matters will constitute a statutory nuisance if they are “prejudicial to health or a nuisance”. These include: Smoke fumes or gases, Dust, steam, smells or “other effluvia”, Noise There are other categories listed in the legislation but these are the main ones.

Trade Effluent: Discharges to sewers of trade effluent are regulated by the statutory sewerage undertaker under the Water Industry Act 1991. The 1991 Act makes it an offence to discharge any trade effluent from trade premises into sewers unless a trade effluent consent is obtained from the statutory sewerage undertaker.

Water Pollution: The 1991 Act also contains a criminal offence relating to water pollution. Section 85(1) makes it an offence to cause or knowingly permit any poisonous, noxious or polluting matter or solid waste to enter controlled waters, such as rivers and streams. It is also an offence to discharge trade or sewage effluent to controlled waters without consent.

IPPC: Integrated Pollution, Prevention & Control: Certain industrial processes, known as “prescribed processes” require the person carrying out the process to obtain a licence before carrying on the process. The system requires a permit to be obtained for emissions to air, water and land caused by the operation of the prescribed process. The main offences that could be committed in relation to a permit relate to carrying on a process without an authorisation or in breach of a condition or failing to comply with enforcement or prohibition notices served with regard to prescribed processes. The law in this area is enforced either by the Environment Agency or the local authority depending on the process operated.

Nuisance: With the other areas of law outlined, there is an overall enforcing authority, such as the Environment Agency. However, the law of nuisance enables one private individual to sue another and obtain damages for harm caused by the other person’s use of their land.

For a nuisance to exist, someone must own or occupy land and use it in such a way that it causes damage to someone else’s property. This could be the result of single incident which, for instance, causes pollution or a series of actions over a period of time which results in pollution.

A person who wants to sue someone else in nuisance must show that the land has been used in a non-natural or unreasonable way and that the harm that it would cause was reasonably foreseeable at the time the nuisance was created as established by case Cambridge Water Co v Eastern Counties Leather plc (1994) 2AC 264

Waste: Under the EPA, it is an offence for a person to carry out certain activities in relation to waste without or in breach of a licence. An example of this would be someone who runs a business that disposes of waste without a licence i.e. Fly Tipping

Contaminated land: Is dealt with under EPA Pt2A Liability for land contamination is on the principle of polluter pays However, voluntary remediation is regularly sought under planning conditions to avoid costly legal actions.

Environmental Damage: The Environmental Damage (Prevention & Remediation) Regulations 2009 came into force on 1 March 2009 and implement the European Environmental Liability Directive. The Regulations are not retrospective so do not apply to historical land contamination. However, they do provide regulators with a further means of enforcing environmental law and ensuring remediation.

Society has to try to balance polluting emissions generated by economic activity against the demands of society.

Polluting emissions must therefore be set, in most cases, by government (or its regulators) at levels which are acceptable to its two major stakeholders: regulated businesses and the public. This balancing task is performed on behalf of government by regulatory agencies such as the Environment Agency and the local authorities. Environmental law also has subsidiary preventive, remedial (clean-up) and compensatory functions. [3]

Question 3

The ‘three rationalities’ said to be fundamental to the legal protection of the environment are ‘the scientific’, ‘the Economic’ and ‘the social’. Following a brief explanation of each of these policies comment will be made on how these conflicting interests influence the development of Environmental Law.

The Scientific is dominated by Global Warming now known as Climate Change. The Kyoto Protocol is a protocol to the United Nations Framework Convention on Climate Change (UNFCCC or FCCC), and is meant to reduce the amount of Co2 gas released into the worlds atmosphere so as, to reduce the degree of warming and eventually return the world to some stable climate system? The agreement including the Kyoto protocol has been ratified by at least one economic organisation, the EU.

The contrary scientific view has been expressed by several leading scientists and as follows by Derek Kelly PhD.

“The current panic over Global Warming, dismissed as dishonest and ‘junk science’ by many of the world’s top scientists, is being fuelled by outright lies and blatant scaremongering. Even our love of animals is being used against us, in order to persuade us to accept their theories as facts. ‘Tigers, Polar Bears, and umpteen other animals, could be extinct within thirty-years.’ So runs an advertisement currently appearing on television; and that is the first clue, that the argument is as full as holes as a pair of fishnet stockings. After all, anything could happen, including – nothing at all.” [4]

The economic is based around the so called developed economies of the western world i.e. USA, Europe and Japan etc, who are said to have benefitted from creating Co2 emissions in the past and the developing economies of China and India.

As an economy grows, demand for energy and energy-intensive goods increases. However, whilst it can be argued that economic growth can be said to increase Co2 emissions, it can also be argued that it drives technological change and increases energy efficiency?

Governments raise billions of pounds in Environmental Taxes. However, sceptics say that governments use global warming as his excuse to raise these taxes and the fact that none of these taxes i.e. Road Tax, Air Passenger Duty etc are ever used for specific environmental purposes perpetuates this thinking.

Socially, there is an argument that the current generation is the custodian of the earth, its resources and the environment and should therefore pass on these to the next generations. The concept of sustainability is one which drives the social perspective.

There is no one single definition of ‘environmental sustainability’ but an easily understandable one is given by the American organization called the ‘North Carolina Environmental Stewardship Initiative’:

“Environmental sustainability has been defined as meeting the needs of the present without compromising the ability of future generations to meet their needs.” [5]

It can be argued that much EU Legislation concerning emissions, waste and contamination etc is aimed at ensuring that all EU countries do act upon and run their affairs on a sustainable basis.

As an example; within EU Law, Directive 2008/1/EC of the European Parliament sets out how member states should legislate concerning ‘integrated pollution prevention and control.’

“The EU defines the obligations with which industrial and agricultural activities with a high pollution potential must comply. It establishes a procedure for authorising these activities and sets minimum requirements to be included in all permits, particularly in terms of pollutants released. The aim is to prevent or reduce pollution of the atmosphere, water and soil, as well as the quantities of waste arising from industrial and agricultural installations, to ensure a high level of environmental protection.” [6]

Directive 96/61/EC formally amends the original instrument into one single legislative act without altering the substantive provisions.

In the UK the Pollution Prevention and Control Act (1999) and the Pollution Prevention and Control Regulations (2000) superseded the Integrated Pollution Control sections of the Environmental Protection Act (1990).

However, since EU Directive 2008/1/EC, this has now been subsumed into the Environmental Permitting Regulations (2007) SI 2007/3538, which introduces ‘Permits’ instead of authorisations, more regulated processes and monitoring. It also introduces the concept of BAT (Best Available Practice). (Hallawell 2009)

So as EU Law seeks governance by consent the adoption by the UK of EU Legislation gradually introduces this concept to UK Legislation and thus the influence of the Scientific, Economic and Social rationalities is considered and addressed.

Question 6

The following will address the question posed that general public access to information is a prerequisite for adequate legal protection of the environment?

The question will be addressed in respect of the Environmental Information Regulations (EIR) SI 3391 2004, which came into force on 1st January 2005 along with the Freedom of Information Act (FOI)

In the preamble to ‘Convention on access to information, public participation in decision making and access to justice in environmental matters’, Andrusevych, Alge & Clemens state that signatory governments to the Aarhus Convention agree to the need to protect, preserve and improve the state of the environment and to ensure sustainable and environmentally sound development and to recognise that adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself.” [7]

The Aarhus Convention is a UN Convention, ratified by the EU, granting rights to the general public regarding access to information, public participation and access to justice, on matters concerning the local, national and international environment. It focuses on interactions between the public and public authorities and the EU is now applying Aarhus principles into its legislation. An example of this is the Water Framework Directive (Directive 2000/60/EC).

EIR is the way that the UK government complies with EU legislation to promote the release of environmental information. What is deemed to be environmental information is wide ranging and includes information about emissions, water, air, soil, land, energy, noise, radiation, and waste. It also includes information about decisions, policies and activities that affect the environment.

EIR now ensures that all public authorities have to make available electronically all such information and should organise the information into its relevant functions. However, only information recorded after 2005 needs to be provided electronically.

It should be noted that there was a list included at Schedule 1 of the Freedom of Information Act 2004 that a list of public authorities covered by EIR was given. The Information Commissioner interpreted the regulations to include Water Companies but a current case, SmartSource (Appellant) v The Information Commissioner (Respondent) and a Group of 19 Water Companies (Additional Parties) will determine whether or not water companies have to respond in the same way as public authorities to EIR requests?

Information on EIR is available on the Information Commissions website as well as that of DEFRA (Dept for Environment, Food & Rural Affairs). [8] A trawl of local authority websites including Birmingham City Council and South Cambridgeshire Council uncovered some quite comprehensive information published on how to make EIR requests.

It could be argued, by those who would claim to seek more open government and a strict interpretation of the Aarhus Convention, that public access to environmental information is an absolute prerequisite for adequate legal protection of the environment.

However, as can be seen in the case of water companies, these organisations now consider themselves to be private companies. This could mean that the information held by them will not have to be made publicly available and charges may be applied for access to selective information? Some like Severn Trent Water have Severn Trent Searches Ltd (STS) and Anglian Water Services have Geodesys Ltd as separate companies selling information i.e. Con29DW. Both STS and Geodesys stand outside of the regulated sector of the parent companies business.