I INTRODUCTION

This review outlines the legislation and regulatory regimes in the United Kingdom related to the environment and climate change. It is primarily focused on the laws of England and Wales, with reference to Scotland and Northern Ireland where appropriate.

The United Kingdom is involved in several major environmental and climate change initiatives at the national, EU, regional and international levels (such as its participation in the EU emissions trading scheme (EU ETS)2 and the Paris Agreement under the United Nations Framework Convention on Climate Change),3 as well as various decarbonisation initiatives (discussed below). The United Kingdom's upcoming exit from the European Union (Brexit) is not expected to impact on these initiatives in the short term. However, depending on the form of Brexit adopted, the UK government may be required to replace certain environmental safeguards that are derived from EU law.

At the 2017 United Nations Environment Assembly in Nairobi, the United Kingdom, together with other UN Member States, signed a resolution to tackle the issue of plastic litter in the oceans.4 The UK government has since taken a number to steps to reduce plastic waste, including passing landmark legislation to ban the manufacture of cosmetic products containing microbeads,5 and establishing the Commonwealth Clean Oceans Alliance Initiative to eliminate single use plastic and address marine plastic pollution.6 In the autumn 2018 budget, the Chancellor announced that a new tax will apply from 1 April 2022 to plastic packaging that does not include at least 30 per cent recycled content.7 The government also carried out reviews of environmental regulations within the waste and recycling sector and the energy sector to limit bureaucracy and reduce costs, with the results of both published in March 2016.8

Additionally, the UK environmental permitting regime was the subject of an ongoing review to consolidate the various amendments made since its introduction in 2010.9 The Environmental Permitting Regulation 2016 came into force on 1 January 2017, and consolidated the 15 amendments made to the 2010 regulations. The duties under the regulations broadly remain unchanged.

Actions relating to air quality issues include the government's development of a new Clean Air Zone framework, which will simplify the current overlapping regimes and provide local authorities with new legal powers to reduce pollution through the implementation of local Clean Air Zones. The government has directed 28 local authorities to produce accelerated local plans to reduce nitrogen dioxide (NO2) levels, including benchmarking proposals against a possible Clean Air Zone where appropriate. The government is also working with a further 33 local authorities which have shorter-term NO2 exceedances to assess if there are measures to bring forward the point at which they can comply with the NO2 concentration limits.10

With the launch of the Green Investment Bank (GIB) in 2012, the United Kingdom was the first country in the world to create a bank dedicated to the green economy.11 By March 2016 the government had begun the process of privatising GIB,12 and on 18 August 2017, the government announced that it had sold GIB (now Green Investment Group) to Macquarie Group Limited in a £2.3 billion deal. To safeguard GIB's environmental mission, part of the deal has involved a 'special share' in GIB being held by five independent trustees who have the power to approve or reject any proposed change to GIB's green focus.13

Certain UK initiatives have been less successful. For instance, the government withdrew funding from the £1 billion Carbon Capture and Storage (CCS) Commercialisation Competition in 2015. This affected the White Rose Carbon Capture Storage project, one of the two bidders brought forward to the planning and design stage, casting doubt on the future financing of carbon capture and storage projects in the United Kingdom.14 CCS in the United Kingdom has not recovered from this.

II LEGISLATIVE FRAMEWORK

The current legislative framework for environmental and climate change regulation in the United Kingdom is composed of a mixture of domestic and EU law. In many areas, UK environmental regulation derives primarily from the European Union, as the government has identified that over 1,100 pieces of directly applicable EU legislation are 'owned by the Department of Environment, Food & Rural Affairs'.15 However, the United Kingdom has long had its own environmental laws, and the regimes for certain important areas such as contaminated land are solely domestic.

EU environmental law will continue to apply for as long as the United Kingdom is a part of the European Union, and likely, at least initially, following Brexit. However, depending on the form of new trading arrangements agreed between the United Kingdom and the European Union, some of this legislation may be impacted, even though the United Kingdom has adopted most EU environmental directives into national law. As discussed below, the European Union (Withdrawal) Act 2018 (the EU Withdrawal Act), which became law by Royal Assent on 26 June 2018, enables the incorporation of existing EU law into domestic legislation up to the point that Britain exits from the European Union. As stated in its 25 Year Environment Plan, the government intends to deliver a 'Green Brexit' by using Britain's exit from the United Kingdom as an opportunity to assess the state of the environment and reform certain policies such as agriculture and fisheries management.16 The Environmental Principles and Governance Bill (discussed further below) will take steps to safeguard environmental protections in the United Kingdom, including the creation of an independent environmental body to hold the government to account.17

Certain regimes that implement EU legislation may need to be rewritten to incorporate the standards directly into UK law. For example, the UK regime for regulating industrial emissions as currently written refers to compliance with the EU Industrial Emissions Directive (IED),18 as opposed to referring to standards contained within UK legislation. The government is in the process of introducing secondary legislation under the EU Withdrawal Act to ensure that domestic legislation implementing the IED can continue to operate after Brexit.19 The United Kingdom will continue to be bound by any international treaties or conventions to which it is a party in its own right alongside the European Union, such as the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement, even if it is no longer bound by any EU legislation implementing the results of those treaties.

Much of UK environmental legislation is specific to a particular area of environmental law. Some examples of important legislation, discussed in greater depth below, include:

  1. the Environmental Permitting Regulations 2010, which set out the environmental permitting system;
  2. the Environmental Protection Act 1990, which regulates contaminated land and waste;
  3. the Environment Act 1995, which regulates ambient air quality;
  4. the Industrial Emissions Directive 2010, which regulates industrial emissions;
  5. the Water Resources Act 1991, which regulates discharges to water;
  6. the Water Industry Act 1991, which regulates discharges to sewers;
  7. the REACH Enforcement Regulations 2008, which regulate chemicals;
  8. the Waste Regulations 2011 and Hazardous Waste Regulations 2005, which regulate solid and hazardous waste;
  9. the Waste Enforcement (England and Wales) Regulations 2018; and
  10. the Climate Change Act 2008, which sets legally binding targets for emissions reduction.

III THE REGULATORS

The primary regulatory agencies enforcing environmental and climate change rules in the different areas of the United Kingdom are:

  1. the Environment Agency (EA) in England;20
  2. Natural Resources Wales in Wales;21
  3. the Scottish Environment Protection Agency (SEPA) in Scotland;22 and
  4. the Northern Ireland Environment Agency (NIEA) in Northern Ireland.23

These agencies are responsible for the regulation of major industry and waste management, the treatment of contaminated land, water quality and natural resources. They also regulate fisheries, navigation of harbours, estuaries and inland rivers, and are responsible for managing flood risks and issues of conservation and ecology.24

Numerous other bodies also play a role, including:

  1. the Department for Environment, Food and Rural Affairs (Defra), the central government department responsible for environmental protection policy in England and internationally on behalf of the United Kingdom in the European Union and elsewhere;
  2. the Department for Business, Energy and Industrial Strategy, the central government department responsible for climate change having taken over the functions of the former Departments for Energy and Climate Change and for Business, Industry and Skills;
  3. the Scottish government, Welsh government and Northern Irish Executive, which each have devolved responsibilities for environmental policy and legislation in their respective countries;
  4. Natural England, which has responsibility for biodiversity, wildlife and habitats in England;
  5. the Marine Management Organisation, with responsibility for marine activities and the marine environment throughout the United Kingdom; and
  6. the Health and Safety Executive, whose remit includes industrial safety, chemicals and asbestos management.

The regulatory agencies are overseen by their respective government body, for example, Defra in England or the devolved governments in Wales, Scotland and Northern Ireland.

Certain environmental responsibilities are within the remit of local authorities, including the collection and disposal of municipal waste and the regulation of emissions from smaller industrial plants within their local area to air, water and land. Notably, local authorities play a key role in relation to contaminated land, as laid out under Part IIA of the Environmental Protection Act 1990,25 except where the land is a 'special site' regulated by the EA or its equivalent. Special sites include, but are not limited to, sites that have a serious impact on controlled waters or sites contaminated by radioactivity.26

Courts in the United Kingdom play a key role in the enforcement of environmental regulation, serving as the venue for criminal prosecutions and civil actions to which they have generally adopted a robust approach. For instance, in Lungowe v. Vedanta Resources plc,27 the courts were willing to allow Zambian citizens to bring claims against an English parent company for personal injury and damage to property allegedly caused by pollution from a copper mine owned by a Zambian subsidiary. The following year, when the company launched a jurisdictional challenge, the Court of Appeal upheld the lower court's decision following the effect of the European Court of Justice decision in Owusu v. Jackson and reinforcing the responsibility of a parent company for the operation of its subsidiary. The case may continue to develop, in light of the Supreme Court's decision on 23 March 2018 to grant permission for an appeal.28 The case follows the earlier example of Chandler v. Cape plc,29 which upheld the decision of the first instance judge to allow the employees of a subsidiary to bring a claim in negligence against the parent company regarding their exposure to asbestos.30 In this case, the courts maintained that the UK parent company had a duty of care to employees of a subsidiary where the parent possesses higher knowledge of the source of the injury (in this case, asbestosis, for which the company had established environmental, health and safety (EHS) policies, especially in respect of asbestosis, and also disseminated EHS procedures to subsidiaries).

Environmental groups and other non-government organisations (NGOs) have also made use of the courts as a means of influencing environmental law and policy, both by bringing claims for judicial review against the actions of public authorities and by seeking to stop the activities of large companies where these may be detrimental to the environment. For example, ClientEarth has engaged in a series of challenges against the government's air quality plans, forcing new plans to be produced in 201531 and for the reconsideration of these plans in 2016.32 Most recently, in a judgment handed down on 23 February 2018, the High Court found that the third iteration of the government's plans, the 2017 Air Quality Plan, was unlawful in several respects, and that more action was needed in 45 local authority areas.33 The government's most recent plan is the draft Clean Air Strategy 2018, as discussed further below.

Other NGOs have contested the granting of planning permission, such as the legal challenge by Friends of the Earth and Frack Free Ryedale in 2016 against the granting of permission for hydraulic fracturing for shale gas in Ryedale, North Yorkshire. However, their claim for judicial review was dismissed.34

The United Kingdom is also subject to the jurisdiction of the EU courts, and as such the European Court of Justice also plays a role in enforcing environmental legislation. For example, in the Welsh NOx case35 the United Kingdom was held to have failed to correctly apply the provisions of the Large Combustion Plant Directive36 to the Aberthaw Power Station in Wales by allowing the power station to burn highly volatile fuels resulting in emissions of nitrous oxides (NOx) above the levels permitted, although Aberthaw already benefited from a derogation allowing higher NOx emissions than usual for a power station of its type.

IV ENFORCEMENT

There are various bases for environmental liability in the United Kingdom, including criminal law, civil law, public law and company law.

i Criminal law

The primary method of enforcement for most environmental laws is criminal prosecution by the regulator (e.g., the Environment Agency in England and Wales) for breach of environmental legislation. Sanctions include fines and imprisonment, and extend liability to corporate entities as well as individuals. Prior to 12 March 2015, the maximum fine in the lower courts for environmental offences was £50,000. As a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012,37 the maximum fines for environmental offences in the lower court are unlimited.38

Sentencing guidelines for environmental crimes published in 2014 have established increasing starting points for sentences based on the size of the company at fault, from micro companies to small, medium and large companies.

These guidelines were first applied in the case of R v. Thames Water Utilities Ltd.39 Following criminal prosecution by the Environment Agency, Thames Water was fined £250,000 for the negligent discharge of untreated sewage into a stream that flowed through an Area of Outstanding Natural Beauty. This fine was upheld on appeal, with the court stating that it 'would have had no hesitation in upholding a very substantially higher fine'.40 The court compared the guidelines to those in relation to breaches of financial services regulation, holding that fines for harm caused by deliberate action or inaction could be imposed up to a 'substantial percentage' (i.e., up to and including 100 per cent) of a company's pre-tax net profit for the year. In general, the approach of the guidelines is for a repeated negligent offender to receive a fine large enough to 'bring the message home' to the directors and shareholders of the offending company.41 Additionally, it was noted in the Court of Appeal case of R v. Ineos Chlorvinyls Ltd that when the court is determining an appropriate fine, the judge may take into account the resources of any linked organisation available to that particular offender.42 In March 2017, when Thames Water committed a further breach of the Environmental Permitting Regulations on six counts, it was fined £20 million by the Crown Court.43 The Water Services Regulation Authority (Ofwat) has since conducted an investigation into Thames Water's non-compliance with its leakage reduction obligations, resulting in Thames Water agreeing to pay £65 million back to customers as part of a package of payments and penalties amounting to £120 million.44

Other recent cases have resulted in more significant sentences than historically. These have included: a £3 million fine for Tesco Stores Ltd for a petrol leakage from a filling station into the local sewerage system, the Langwood Brook and the River Irwell, causing environmental damage and requiring local homes to be evacuated;45 a £1 million fine for Thames Water for polluting the Grand Union Canal;46 a £1.1 million fine for Yorkshire Water for illegally discharging sewage into the River Ouse;47 and a combined fine of almost £1 million for United Utilities Water Limited and its contractor KMI+ for polluting a stream with bleach.48 A record custodial sentence for an environmental crime – seven years and six months – has also recently been awarded in relation to a £2.2 million fraud by a waste operator that falsely claimed to have collected and recycled significant quantities of household electrical waste.49

ii Civil law

Private persons may also bring civil law claims in relation to the harms caused by breaches of environmental law. These are typically claims for damages or an injunction under the common law of nuisance, the rule in Rylands v. Fletcher or the common law of negligence, with a nuisance claim generally considered to have the highest chance of success.

Private nuisance requires the defendant's activities to have caused substantial and unreasonable damage to neighbouring land, the damage to be reasonably foreseeable and the activity to be unreasonable, even if it is lawful.50 The creator of the nuisance may remain liable even if they have subsequently disposed of the land, and a new owner who is aware of the nuisance but does not attempt to abate it may also be liable.

The rule in Rylands v. Fletcher51 creates liability where the defendant brings onto their land, collects or keeps on it something that is likely to cause damage if it escapes, provided that the damage is reasonably foreseeable and the defendant's activities on the land are 'non-natural' (e.g., industrial activity).

The threshold for bringing a claim for negligence requires that the defendant (who may have either caused the contamination or allowed it to continue) owed a duty of care to the claimant, that the duty was breached, and that the claimant suffered loss or damage as a result of that breach. It is a defence to negligence to show that the defendant exercised reasonable care in carrying out their activities. Such a defence does not apply to nuisance or Rylands v. Fletcher, where it is sufficient that the environmental damage occurred.

iii Public law

Under the Regulatory Enforcement and Sanctions Act 2008,52 environmental regulators have the power to impose civil sanctions as an alternative to prosecution in relation to certain environmental breaches. Civil sanctions include fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings.

Enforcement undertakings involve the offender making an offer to perform some act or to pay money to restore or remediate any harm caused by their breach of environmental legislation. Enforcement undertakings are the most common sanction, and since 2015 their usage by the Environment Agency in England has been extended to include breaches under the environmental permitting regime (as discussed below). The recent enforcement undertaking of Wessex Water is the highest to date, totalling £975,000 in environmental improvement payments following a series of sewage spills in Dorset in 2016 and 2017.53

Civil sanctions may also be imposed under other environmental legislation, including in relation to the EU ETS (as discussed below).

iv Company law

Under the Companies Act 2006, directors are subject to a statutory duty to promote the success of the company for the benefit of its members as a whole.54 In doing so, the directors must take into account, among other factors, the impact of the company's operations on the community and environment. A director in breach of this duty could be subject to a derivative action by the shareholders on behalf of the company even if that director has not itself benefited from the breach. However, such an action is likely to be difficult given the requirement to prove subjective bad faith on the part of the director, and the general discretion given to directors to balance competing interests. Further, the courts have proven to be generally unwilling to interfere in the business decisions of a company.

V REPORTING AND DISCLOSURE

i Reporting and disclosure

There are several mechanisms by which companies may be required to report on or disclose environmental issues.

It is common for Environmental Permits (as discussed under Environmental Protection below) to include reporting conditions in relation to discharges to water, air emissions and other operational matters, and a number of environmental regimes impose further reporting requirements.

In addition, under the Environmental Damage (Prevention and Remediation) (England) Regulations 2015, operators are required to notify the relevant regulator of any imminent threats of environmental damage or any activity that has caused environmental damage, and to provide information to regulators upon request. The regulators themselves have wide powers to conduct investigations. For example, the EA is entitled to require that certain information is provided, gain access to premises, obtain samples, interview site employees and carry out emergency works. However, the EA must notify the operator in advance of entering a site, and cannot generally use information provided under compulsion in the prosecution of an offence.

Companies may also be required to disclose environmental liabilities as part of their strategic report under the Companies Act 2006. At present, all companies except certain small companies are required to produce a strategic report setting out a fair review of the company's business and a description of the principal risks and uncertainties it faces. This is a stand-alone document, and is separate from the directors' report. However, the extent of environmental reporting required varies. Large unquoted companies must consider environmental issues as a non-financial key performance indicator in their analysis of the company, but their obligations extend no further. The requirements for large or medium quoted companies are more extensive. They must report on environmental matters specifically, including the impact of the company's business on the environment, the company's environmental policies and the effectiveness of those policies. Small companies and medium unquoted companies are not subject to any environmental reporting requirements.

The Companies Act 2006 has broadly similar requirements to those under the Non-Financial Reporting Directive 2014.55 In 2016, the government conducted a consultation on the implementation of the Non-Financial Reporting Directive, as well as on wider reforms outside its scope. At the end of 2016, the government subsequently published the Companies, Partnerships and Groups (Accounts and Non-Financial Reporting) Regulations 2016, incorporating the requirements of the Non-Financial Reporting Directive by amending the strategic report regime under the Companies Act 2006, which came into force in early 2017.56

In the context of an acquisition, there are no specific statutory requirements for a seller to disclose environmental issues to a purchaser. Nevertheless, it is commercially reasonable for environmental due diligence to form a part of the acquisition process, given the potential liabilities faced by the purchaser. Environmental due diligence may include development and review of environmental reports, such as internal audit reports, phase 1 or phase 2 site assessments and insurance or other investigation reports. Depending on the business and the type of environmental issues identified, the process may also include the appointment of specialist environmental consultants, the incorporation of environmental warranties in transaction documents, a disclosure letter identifying information from the seller providing grounds for a breach of contract claim, and the incorporation of environmental indemnities in favour of the buyer against any losses incurred as a result of the seller's breaches of environmental regulation, permitting requirements or environmental claims.

ii Whistle-blowers

Whistle-blowers in England and Wales are protected under the Public Interest Disclosure Act 1998,57 both in relation to any unfair dismissal of the whistle-blower for making a protected disclosure and in relation to any unlawful detriment suffered by the whistle-blower as a result of making a protected disclosure. The potential liability to the employer is extensive, as there is no upper limit on compensation for unfair dismissal of a whistle-blower and the employer may be vicariously liable for the acts of its employees in causing detriment to the whistle-blower where it does not take all reasonable steps to prevent this.

The application of whistle-blower protections to environmental issues is considered explicitly in the legislation, and disclosures of environmental issues may be protected on several fronts. The legislation applies to disclosures that tend to show the current, future or past occurrence of a criminal offence or a breach of legal obligation, both of which may apply to breaches of environmental regulation. It also applies specifically to disclosures that tend to show that damage to the environment has occurred, is occurring or is likely to occur in the future.58

This legislation has been enforced in relation to environmental whistle-blowers on multiple occasions, including where the subject of the protected disclosure was a previous employer, highlighting the importance to companies of maintaining an adequate whistle-blower policy and avoiding breaches of environmental regulation.59

VI ENVIRONMENTAL PROTECTION

i Environmental permits

Environmental permits in England and Wales are dealt with through the integrated environmental permitting (EP) regime, which has steadily incorporated and replaced the various distinct permitting systems that were previously in place. The Environment Agency, Natural Resources Wales and, in certain cases, local authorities have the authority to issue permits in relation to a range of regulated activities, and an operator must hold a permit in order to carry on any regulated activity.

The integrated EP regime was initially established in April 2008, combining the pre-existing Pollution Prevention and Control regime permits and waste management licences into a new system of environmental permits. From April 2010 the EP regime has also incorporated water discharge, groundwater discharge and radioactive substances registration and authorisation, with pre-existing consents converted automatically into environmental permits.

The current regulations for the EP regime are found in the Environmental Permitting (England and Wales) Regulations 2016 (the EP Regulations), which came into force on 1 January 2017.60 As discussed above, these regulations consolidate the various amendments previously made to the Environmental Permitting (England and Wales) Regulations 2010.61

The Water Act 201462 introduced a right for the Secretary of State in England and the Welsh Ministers to extend the EP regime to include water abstraction, water impounding, fish pass approvals and flood defence consents, with a further update in 2016 to incorporate flood risk activities.

In 2013, there were further amendments to the EP regime, pursuant to the Industrial Emissions Directive,63 which consolidated various earlier EU directives, and in 2015 pursuant to the Energy Efficiency Directive.64

The integrated EP regime now covers a wide range of key activities, including:

  1. various industrial and power generation activities and installations specified in Schedule 1 to the Environmental Permitting Regulations;
  2. waste operations, including mining waste operations;
  3. mobile plant used in connection with a Schedule 1 activity or waste operations;
  4. water discharge activities;
  5. groundwater activity;
  6. solvent emission activity;
  7. radioactive substance activities;
  8. flood risk activities; and
  9. small waste incineration plants.

The level of regulation applied to the environmental permit varies depending on the activity in question. Activities that cause the most pollution are regulated in terms of their energy efficiency and of all their emissions, whereas lesser polluting activities may be regulated only in terms of their air emissions. In some situations, a single environmental permit may be issued for multiple installations on a particular site, potentially reducing the burden on those carrying out multiple regulated activities. Standard permits with standard conditions also exist for a number of less-polluting waste activities, with scope to extend these permits to other industries in the future. Certain low-level waste management activities are fully exempted, subject to compliance with conditions such as registration and notice obligations.

Environmental permits do not have a fixed expiry date, and are subject to periodic review by the regulator. The regulator may suspend permits if there is a risk of serious pollution, or may revoke the permit where 'appropriate circumstances' exist. In many circumstances, environmental permits may only be transferred to a new operator by joint application to the regulator, and the surrender of many environmental permits also requires application to the regulator. This enables the regulator to ensure that appropriate environmental standards are maintained either by a new operator or after the activity has ceased.

ii Air quality

There are two main forms of regulation relating to air quality. Ambient air quality regulation focuses on limiting the concentrations of specific pollutants in ambient air, whereas point source pollution regulation focuses on limiting the emissions to air of certain pollutants, primarily from industrial installations. Other methods used in the United Kingdom to regulate air quality include substance bans, such as the ban on chlorofluorocarbons; emissions trading under the EU ETS; and taxation, such as the Climate Change Levy.

Ambient air quality

Regulation of ambient air quality derives from three key sources: the UK National Air Quality Strategy (NAQS), the local air quality management (LAQM) system in England and Wales, and the EU Air Quality Directive 2008.

The NAQS, a requirement of the Environment Act 1995,65 establishes a framework for improving ambient air quality across the United Kingdom, sets standards and objectives for a number of key pollutants and explains the various measures in place to achieve those objectives. The standards set are aimed primarily at improving human health; however, the objectives in relation to nitrogen dioxide and sulphur dioxide are also set with regards to the protection of vegetation and ecosystems.

The Environment Act 1995 also sets out the LAQM system,66 which requires local authorities to review local air standards and assess compliance with the standards specified in the NAQS. If the standards are not being met, local authorities are required to designate air quality management areas and to prepare and implement remedial action plans. However, the obligation on local authorities is limited to acting 'in pursuit of the achievement' of the relevant air quality standards, as much air pollution regulation and enforcement lies outside their control.

The Air Quality Directive 2008,67 implemented into English law by the Air Quality Standards Regulations 201068 and Air Quality Standards (Amendment) Regulations 2016,69 sets obligatory limit values and non-obligatory target values for a range of air pollutants similar to the NAQS, and also requires the government to produce air quality plans setting out measures for meeting the required standards and action plans in the event that certain alert thresholds are breached. The regulations also incorporate the Fourth Daughter Directive,70 which sets minimal target values for certain carcinogenic pollutants. The United Kingdom's air quality plans were successfully challenged by ClientEarth on three occasions from 2015 to 2018, including most recently in the High Court,71 and as such the United Kingdom released a new draft Clean Air Strategy in May 2018, which sets out the government's plan to halve the harm to human health from air pollution in the United Kingdom by 2030.72 Defra conducted a public consultation on the draft Clean Air Strategy during May to August 2018, and will release the final version of the Clean Air Strategy by March 2019.73

As part of its commitment to a 'Green Brexit', the UK government intends to introduce a comprehensive legislative framework to address air quality and pollution. Among other things, it is proposed that the legislation would enable the Transport Secretary to compel manufacturers to recall vehicles and machinery for any failures in their emissions control systems. The legislation will also create a new statutory framework for Clean Air Zones to simplify the current overlapping frameworks, as discussed above.74

In April 2019, the UK government will produce a National Air Pollution Control Programme,75 which will set out the government's plan to meet its 2020 and 2030 emission reduction commitments under the National Emissions Ceiling Directive 2016.76

iii Point source pollution

Emissions from industrial installations and mobile plants are regulated primarily under the Industrial Emissions Directive 2010,77 which replaced the former Integrated Pollution Prevention and Control regime, as well as the Medium Combustion Plant Directive 2015.78 These directives have been implemented into UK law via the EP Regulations; therefore, an environmental permit is necessary in relation to activities falling within their scope.

In November 2016, the government consulted on proposals to introduce additional controls on NOx emissions from diesel generators, including requiring an environmental permit from 2019 and imposing emission limits. On 23 March 2018, the government launched a £220 million Clean Air Fund for local authorities to use to reduce air pollution.79 The autumn 2018 budget included an additional £20 million funding to support more local authorities in meeting their air quality obligations.80

The Clean Air Act 199381 also imposes restrictions on point source pollution, enabling local authorities to designate smoke control areas82 and making it an offence to emit 'dark smoke' from industrial or trade premises. As set out in the draft Clean Air Strategy 2018, the government intends to update these 'outmoded' and 'underused' provisions with more flexible, proportionate enforcement powers for local government.83

iv Water quality

Discharges to water

Water pollution in England and Wales is regulated under the Water Resources Act 1991,84 which applies to all 'controlled waters', including territorial waters, coastal waters, inland freshwaters and groundwater. A discharge to water may require various different consents, depending on: the type of activity creating the discharge; the substances in the discharge; whether the discharge is to groundwater, surface water or into a sewer; and whether the discharge occurs as part of some wider industrial activity.

Most discharges to surface water are regulated under Schedule 21 of the EP Regulations, whereas most discharges to groundwater are regulated under Schedule 22. In each case, an environmental permit will be required where the discharge falls within the scope of the EP regime.

Discharges of trade effluents to sewers are instead subject to the Water Industry Act 1991,85 and require the operator to obtain a trade effluent discharge consent from the relevant sewerage company. The sewerage company itself will require an environmental permit to discharge the waste from its sewers into water, as discussed above.

Any facility regulated under some other branch of the EP regime is likely to include some form of discharge to water or sewers. In such cases, the environmental permit granted to the facility is likely to include conditions governing any discharges, for example, by monitoring the discharges that occur or minimising the emission of particular substances.

However, certain industries require a specific permit for their discharges to water pursuant to the Priority Substances Directive 2008.86 These include the paper, textiles and food industries, with the requirement of a separate environmental permit triggered upon the concentration of certain hazardous substances released to water exceeding the relevant level specified in the EP Regulations. A separate trade effluent discharge consent would also be required for the discharge of these substances into sewers.

UK water quality

Under the Water Framework Directive 2000,87 the United Kingdom was required to achieve good ecological and good chemical status across all types of surface water bodies, groundwater bodies and heavily modified or artificial water bodies by 2015. Implemented in England and Wales by the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017,88 the Water Framework Directive encourages a more robust approach both to point-source pollution and to diffuse water pollution. The 2017 Regulations provide that the appropriate agencies must achieve a number of objectives in respect of each river basin district by 22 December 2021, including updating management plans, establishing monitoring programmes and ensuring that each protected body of water complies with the relevant EU instrument standards and objectives.89

v Chemicals

Chemicals in the United Kingdom are regulated under the EU Registration, Evaluation, Authorisation and Restriction of Chemicals regime (REACH), as set out in the REACH Regulation 2006.90 The purpose of the regime is to ensure that chemicals are used in a manner that minimises any unacceptable risks to human health or to the wider environment, based on the transparent sharing of information throughout the chemicals supply chain. The requirements of REACH were phased-in over a 10-year period, with the final stage (registration of substances of 1 tonne or more per year) taking effect in 2018.

REACH is enforced in the United Kingdom via the REACH Enforcement Regulations 2008,91 with the role of enforcing authority taken on either by the relevant environmental regulator, the Health and Safety Executive, local authorities or the Department of Business, Energy and Industrial Strategy as appropriate. All these bodies are required both to cooperate and to share information in respect of REACH compliance. The European Chemicals Agency (ECHA) is not an enforcing authority in its own right, but it may request enforcing authorities to act on its behalf.

The key provisions of REACH relate to the four limbs of registration, evaluation, authorisation and restriction. Those wishing to supply a substance must first register that substance with the ECHA. The ECHA may therefore exert considerable control over the chemicals industry by refusing registration to a given substance, rendering any manufacturing, import or downstream usage illegal. The supplier will also be subject to an evaluation process by the ECHA and national authorities. This evaluation could include a compliance check of dossiers, an evaluation of testing proposals and a substance evaluation to determine whether the substance in question poses a risk to human health or the environment.

Certain substances identified as 'substances of very high concern' (SVHCs) by the ECHA or national authorities will require specific authorisation to permit their use or sale. There are four broad categories of SVHCs: substances that are carcinogenic, mutagenic or toxic to reproduction; substances that are persistent, bio-accumulative and toxic; substances that are very persistent and very bio-accumulative; and substances that give rise to similar concerns to those in the previous categories. In addition, substances that are the subject of a restriction proposal by a Member State or the ECHA may be either restricted or banned entirely. Examples of restricted substances include asbestos and acrylamide.

The REACH Enforcement Regulations 2008 also place various obligations on companies operating in the chemicals sector. Failure to comply with these obligations constitutes a criminal offence. Some of the key obligations include:

  1. neither manufacturing nor placing on the market any substance that has not been registered;
  2. supplying appropriate instructions to the recipient of a substance;
  3. providing a safety data sheet;
  4. providing workers with access to information about the substances they may encounter in the course of their work;
  5. applying appropriate measures to control risks; and
  6. complying with the conditions of any authorisation.92

The UK government has stated that if it is unable to reach a deal with the European Union, it will ensure that UK legislation replaces the REACH regime via the EU Withdrawal Act. The replacement UK legislation would preserve REACH as far as possible, including establishing an IT system for the registration of new chemicals that is similar to the existing EU IT system. The Health and Safety Executive would act as the lead UK regulatory authority, with the EA and other regulators continuing to play a role in enforcement.93

vi Solid and hazardous waste

Solid waste

The regulatory regime for solid waste covers the entirety of the waste cycle, from generation to transport to disposal. The extent of regulation depends on whether an operator is carrying out a 'waste operation', as defined in the EP Regulations.

Waste operations include the recovery or disposal of waste, as well as any preparation of the waste prior to recovery or disposal, and are a regulated activity under the EP regime. They require the operator to hold an environmental permit, and the operator must comply with Schedule 9 to the EP Regulations. Additionally, there are certain further requirements that apply to specific types of waste operations such as landfill sites, treatment of end-of-life vehicles, treatment of waste electrical and electronic equipment, waste incineration, treatment of waste batteries, mining waste operations, radioactive waste and packaging waste.

A business that merely produces waste will not require an environmental permit, as it is not carrying out waste operations. However, such businesses must still comply with the waste hierarchy and the waste duty of care.

Under the Waste Regulations 2011,94 organisations involved in waste must take reasonable steps to apply the waste hierarchy when transferring waste. This sets out a priority order for waste management from prevention, re-use, recycling and recovery to environmental disposal as a last resort.

Under the Environmental Protection Act 1990,95 anyone handling controlled waste is subject to the waste duty of care, and therefore must ensure that the waste does not cause harm to the environment and is only transferred to an authorised person. During January to March 2018, Defra and the Welsh government held a consultation on proposals to tackle crime and poor performance in the waste sector. The government has announced a number of measures in response to the consultation, including measures to raise the standards for operator competence in the waste sector, and a fixed penalty notice for breaches of the household waste duty of care.96

Hazardous waste

Hazardous waste is subject to additional regulation under the Hazardous Waste Regulations 2005,97 as amended to reflect the requirements of the Waste Framework Directive 2008.98 Waste is classified as hazardous where it is listed under the EU List of Wastes99 or the Environmental Protection Act 1990,100 or where it is specifically determined as hazardous, pursuant to the Hazardous Waste Regulations 2005.

Environmental permits are required to carry on waste operations involving hazardous waste as discussed above, and the waste hierarchy and waste duty of care apply. While the requirement for the registration of premises where hazardous waste is produced, collected or removed ended in April 2016, it is still necessary for all parties involved with hazardous waste to maintain detailed records of the production, transport, treatment and disposal of hazardous waste, whether by tipping or some other method of discharge or recovery.101 In addition, there are restrictions on the mixing of hazardous waste, and specific requirements relating to the transport of hazardous waste to ensure consignments are properly tracked.

Financial provision

The operators of landfill sites are currently required to make financial provision to cover the costs associated with the closure and aftercare of the site; however, no other operators are required to make financial provisions.

A consultation by Defra and the Welsh government in 2015 found a clear majority of respondents supported the reintroduction of financial provision for all permitted waste operations, and that this provision should be sufficient to cover both the cost of returning the land to a satisfactory state and any foreseeable clean-up costs of any environmental accidents. There was also majority support for increasing the financial provision in relation to landfill sites, although this was more limited. The government accordingly expressed an intention to bring forward proposals.102

vii Contaminated land

Remediation

The rules on identifying and remediating contaminated land are set out in the Environmental Protection Act 1990.103 The purpose of the contaminated land regime is to encourage the remediation of significant historic contamination. As such, it is not an offence in itself to contaminate land, but it is an offence to fail to comply with a remediation notice.

Local authorities are first required to identify contaminated land. Once contaminated land has been identified, the relevant enforcing authority must serve a remediation notice to the relevant persons requiring them to remediate the contamination. The enforcing authority is typically the local authority, but may be the relevant regulator (i.e., the Environment Agency, Natural Resources Wales, SEPA or NIEA) where the contaminated land in question constitutes a 'special site'.

In its remediation notice, the enforcing authority will identify the reasonable steps required to remediate the land. These steps are determined by reference to the efficacy of any proposed remediation actions, the environmental and health impacts of the remedial actions, the cost of the remediation and the benefits of the remediation in relation to the harm. Ideally, remediation should aim to restore the land to a position where it poses no further risk of environmental harm, such that the land no longer qualifies as contaminated. The enforcing authority cannot require a higher standard of remediation. However, where the application of this standard is not practical, the enforcing authority can consider a lesser standard.

Liability for clean up

In the first instance, the person who either caused or knowingly permitted the contamination is liable. Such a person is categorised as a Class A person. If no Class A person can be found, the current owner or occupier of the site becomes liable, and is categorised as a Class B person. The Class B person does not need to have been aware of the contamination occurring in order to be liable for it. Given the potential scale of remediation costs, the process of identifying the presence of contaminated land therefore forms a key issue in property transactions or corporate acquisitions involving the transfer of land. Where multiple Class A or Class B persons exist, the enforcing authority will apportion liability according to the rules set out in the Environmental Protection Act 1990.104

The enforcing authority also has step-in rights to carry out remediation itself in certain situations, such as in the event of an emergency, where a remediation notice has been breached, where the enforcing authority would not recover all of its costs from the appropriate person or where no appropriate person can be found.

New waste enforcement regulations were passed in 2018 to supplement enforcing authorities' powers in respect of non-compliant waste sites.105 The EA and National Resources Body for Wales are now able to restrict the entry of persons and further waste to waste sites, and require the removal of all waste at non-compliant sites.

Recovery of costs

In recovering its costs, the enforcing authority must consider the Contaminated Land Statutory Guidance.106 The polluter should pay for the cost of remediation where possible; however, enforcing authorities should aim for a result that is as fair and equitable as possible, including the cost to the taxpayer. The enforcing authority should not consider financial hardship in the process of attributing and apportioning liability; however, it may waive or reduce the final remediation costs should it consider the resulting financial hardship on those liable to be too severe.

As an alternative to recovering the costs of remediation directly, the enforcing authority also has the power to defer recovery by taking a statutory charge over the property in question, provided that the owner of the land caused or knowingly permitted the contamination.107

VII CLIMATE CHANGE

The Climate Change Act 2008108 lays out regulation regarding greenhouse gas (GHG) emissions. It requires the United Kingdom to reduce its GHG emissions to 80 per cent below 1990 levels by 2050. The relevant GHGs include carbon dioxide; methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulphur hexafluoride.

There are three primary methods used by the government to restrict GHG emissions: the Climate Change Levy; the Emissions Trading Scheme coupled with the Carbon Price Floor; and Climate Change Agreements.

i Climate Change Levy

Adding approximately 15 per cent to energy bills of businesses and public sector organisations, the Climate Change Levy (CCL) is a carbon tax designed both to encourage the use of energy from renewable resources, and to encourage the use of less energy more generally. There are four categories of taxable commodities that are subject to the CCL: electricity; natural gas as supplied by a gas utility; petroleum and hydrocarbon gas in a liquid state, including liquid petroleum gas; and solid fuels. Solid fuels are categorised as: coal and lignite; coke and semi-coke of coal or lignite; petroleum coke; and low value solid fuel with an open market value of no more than £15 per tonne. However, exemptions were introduced in 2014 for energy used in metallurgical and mineralogical processes, and for solid fuels used in certain gasification processes. The rate of CCL has increased almost every year since 2007, broadly in line with inflation determined with reference to the retail price index.109

ii Emissions Trading Scheme and Carbon Price Floor

The Carbon Price Floor (CPF), introduced in April 2013 as part of the government policy of Electricity Market Reform, places a minimum price on GHGs emitted by the power sector. The CPF is designed to supplement the EU ETS transposed into the United Kingdom's domestic GHG emissions trading regulations, which require companies to buy permits to emit greenhouse gases while generating electricity. Since the price of these permits can fall, the incentive to reduce emissions decreases. The CPF therefore imposes a minimum price that companies must pay in order to pollute, providing a baseline incentive for companies to cut emissions. In the 2014 budget, the government declared that the Carbon Price Support (CPS) rate (i.e., the difference between the future market price of carbon and the floor price that acts as one component of the CPF) would be capped at £18 per tonne/CO2 from 2016 to 2020.110 This cap was extended in the autumn 2018 budget until 2021.111 From 2021 to 2022, the government has indicated that it will seek to reduce the CPS rate if the total carbon price remains high (i.e., the sum of the CPS rate and the EU ETS price).112

In December 2017, the government passed amending regulations to bring forward the 2018 deadlines for UK-issued allowances under the EU ETS.113 As a result of the amendments, UK-regulated operators are required to report their 2018 emissions and surrender allowances for those emissions by 15 March 2019. The amendments were prompted by concerns that the United Kingdom's exit from the European Union would invalidate UK operators' participation in the EU ETS.114

The government has announced that if the United Kingdom departs from the EU ETS in 2019, it will replace the ETS with a carbon emissions tax.115 The tax would apply to all stationary installations currently participating in the EU ETS from 1 April 2019, at a rate of £16 per tonne of carbon dioxide over and above an installation's emissions allowance, based on the installation's free allowances under the EU ETS.116 The government has indicated that it is continuing to develop options for long-term carbon pricing, including remaining in the EU ETS, establishing a UK ETS (linked to the EU ETS or standalone) or a carbon tax.

iii Climate Change Agreements

For energy-intensive businesses looking for discounts on the CCL, climate change agreements (CCAs) were introduced in 2012. These are voluntary agreements made between the Environment Agency and sector associations and their members. The agreements set targets for industries to improve energy efficiency or reduce CO2 emissions. Meeting set targets makes the industry eligible for the discount CCL tax rate. From 1 April 2013, the discount received is 90 per cent on electricity bills and 65 per cent on other fuels. However, failure to meet the set targets under a CCA can result in the imposition of a financial penalty. If operators of CCAs fail to meet their requirements, they can continue to be eligible for the discounted tax if they pay a buyout fee to cover the deficit.

The Committee on Climate Change (CCC), established as part of the Climate Change Act 2008, is an independent body that advises the government on how it should meet its carbon budgets and carries out annual assessments as to whether the government is meeting its requirements. In 2017, UK emissions were 43 per cent below 1990 levels.117 The UK government did meet the first carbon budget and the CCC has predicted that the government will be able to meet its second and third budgets. However, meeting the fourth budget (2023 to 2027) will not be possible without further measures. For the United Kingdom to cut its emissions by 80 per cent below 1990 levels by 2050, domestic emissions must be reduced by at least 3 per cent a year.118

iv The UNFCCC, the Kyoto Protocol and the Paris Agreement

The United Kingdom is also a party to the UNFCCC,119 and accordingly a signatory to the Kyoto Protocol120 and most recently to the Paris Agreement,121 which entered into force on 4 November 2016. The Paris Agreement places various requirements on its signatories. This includes limiting global temperature increases by, among other things: developing and implementing nationally determined contributions (NDC); peaking GHG emissions as soon as possible and progressing towards zero net emissions; minimising the loss and damage from climate change; and supporting climate change adaptation. This also requires that signatories provide financial support to developing countries and cooperate with other signatories to transfer technology, achieve their NDCs, build capacity of developing countries and improve public awareness and transparency.

However, the decarbonisation target under the Paris Agreement was agreed at an EU level, and therefore an allocation must take place to assign an NDC to the United Kingdom that may be affected by Brexit. Nevertheless, the UK government has itself committed to a legally binding target of cutting carbon emissions to 57 per cent below 1990 levels by 2032.122 Further, several of the United Kingdom's decarbonisation initiatives, such as the closure of coal-fired power plants, are domestic in origin and should not be affected by any change in circumstances following Brexit.

VIII OUTLOOK AND CONCLUSIONS

The UK government is planning numerous environmental reforms envisioned to take effect over the coming years. These will define the United Kingdom's future environmental and climate change policy and the mechanisms to apply it. Water abstraction is a key focus, with Defra and the Welsh government concluding a consultation in January 2016 and committing to implement reforms of the current abstraction licensing system by the early 2020s. In December 2017, a Water Abstraction Reform Plan was published that proposes to focus reform on addressing unsustainable abstraction, developing a stronger catchment focus for rainwater and modernising the system for abstractors.123 The intention of the reforms is both to improve flexibility in addressing short-term water availability, and to improve long-term sustainable management supporting growth and investments. In particular, proposals include the introduction of water trading in areas of water scarcity and the incorporation of water abstraction and water impounding into the EP regime.124

The UK government is also undertaking a simplification of the regulatory regime relating to business energy efficiency through the closure of the CRC Energy Efficiency scheme from April 2019 and its replacement with an increased CCL.125 As announced in the autumn budget 2016, the government will increase the main rates of the Climate Change Levy from April 2019 to replace the foregone revenue from the CRC scheme.126

Finally, the regulatory framework for hydraulic fracturing of shale gas continues to develop in response to industry studies as well as community and NGO pressure. On 11 November 2017, following a public consultation process, the government announced that it would create a Shale Wealth Fund,127 which will enable local communities to choose how they spend up to £1 billion in total (up to £10 million per local community) from the proceeds of shale gas extraction on funding for local projects.128 The Shale Wealth Fund will initially consist of up to 10 per cent of tax revenues arising from shale gas production, a proportion of which will be distributed to local communities over a 25-year period.129

The government has also previously proposed that operators making use of underground rights of access to sources of gas, oil and geothermal energy be required to make additional voluntary payments to local communities for lateral wells (with those payments becoming mandatory if operators fail to participate),130 in addition to any payments under the industry Community Engagement Charter.131 Most recently, the government has announced the creation of a Shale Environmental Regulatory Group to coordinate shale regulation, and a Commissioner for Shale Gas to act as a point of contact for the public.132

The future development of UK environmental legislation is to some extent uncertain, as it is likely to be affected by the outcome of the country's Brexit negotiations with the European Union. As described below, the EU Withdrawal Act provides for the creation of a new, independent body for environmental standards that will hold the government to account after leaving the European Union. It is unclear to what extent this body will prove a robust alternative to the work of the European Commission. The European Parliament has resolved that any future agreement between the European Union and the United Kingdom is conditional on the United Kingdom's continued adherence to the European Union's standards and policies on the environment and tackling climate change.133

The EU Withdrawal Act, which was passed by Parliament on 20 June 2018 and received Royal Assent on 26 June 2018, enables the incorporation of all existing EU legislation into domestic law so that it shall remain in force after the United Kingdom departs from the European Union.134 Section 16 of the EU Withdrawal Act requires the Secretary of State to publish a draft Environmental Principles and Governance Bill by 26 December 2018.135 The Environmental Principles and Governance Bill must contain a minimum set of environmental principles and a duty on the Secretary of State to publish a supporting policy statement, as well as a duty for Ministers to have regard to the policy statement; and provisions for the creation of a new independent authority with the ability to take proportionate enforcement action (including legal proceedings) against a Minister where it is considered that the Minister is not complying with environmental law. Defra invited public proposals on the Bill during a consultation period in May to August 2018.136

While it is not anticipated that Brexit will result in any immediate significant alterations to environmental regulation in the United Kingdom,137 there is some speculation that the review of environmental regulation following Brexit may be used by the government as an opportunity to deregulate in certain areas, such as air quality and sewerage, where the United Kingdom has historically struggled to meet EU standards.138 Brexit may, on the other hand, be a 'once-in-a-generation opportunity' for the United Kingdom to make improvements to its environmental policy framework.139 The United Kingdom is a leader among EU Member States when it comes to adopting EU directives; however, ultimately, the fate of UK environmental and climate change legislation may be in a holding pattern for the near future.


Footnotes

1 Tallat S Hussain is environmental counsel at White & Case LLP. The author was assisted by Alex Field and Samantha Sutton, associates at White & Case LLP.

2 Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (Text with EEA relevance); http://ec.europa.eu/clima/policies/ets_en.

3 The Paris Agreement under the United Nations Framework Convention on Climate Change (UNFCC) was adopted on 12 December 2015 and entered into force on 4 November 2016; http://unfccc.int/paris_agreement/items/9485.php.

4 https://www.gov.uk/government/news/global-commitment-at-united-nations-assembly-to-reduce-pollution.

5 Environmental Protection (Microbeads) (England) Regulations 2017.

6 https://www.gov.uk/government/news/commonwealth-unites-to-end-scourge-of-plastic.

7 Treasury, 2018 Budget, p. 48. See https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/752202/Budget_2018_red_web.pdf.

8 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/504777/bis-16-154-crt-review-waste.pdf; https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/504797/bis-16-158-crt-review-energy.pdf.

9 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/484024/epr-consolidation-consult-sum-resp.pdf.

10 Draft Clean Air Strategy, pp. 74–76.

11 www.greeninvestmentbank.com/.

12 http://greeninvestmentgroup.com/news-and-insights/2016/uk-green-investment-bank-privatisation-
process-to-launch/.

13 https://www.gov.uk/government/speeches/sale-of-green-investment-bank.

14 www.publications.parliament.uk/pa/cm201516/cmselect/cmenergy/692/692.pdf.

15 http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/eu-
energy-and
-environment-subcommittee/brexit-environment-and-climate-change/written/45974.pdf.

16 Department for Environment, Food and Rural Affairs 11 January 2018: Policy Paper (Gov't Publication): A Green Future: Our 25 Year Plan to Improve the Environment, p. 9; 36; 139.

17 https://www.gov.uk/government/news/new-environment-law-to-deliver-a-green-brexit.

18 Industrial Emissions Directive 2010/75/EU.

19 https://www.gov.uk/government/publications/industrial-emissions-standards-best-available-techniques-if-theres-no-brexit-deal/industrial-emissions-standards-best-available-techniques-if-theres-no-brexit-deal.

20 https://www.gov.uk/government/organisations/environment-agency.

21 https://naturalresources.wales/.

22 https://www.sepa.org.uk/.

23 https://www.daera-ni.gov.uk/.

24 The NIEA is also responsible for the preservation of the built environment in Northern Ireland, fulfilling a similar role to organisations such as English Heritage.

25 Environmental Protection Act 1990 c. 43.

26 Contaminated Land (England) Regulations 2006/1380, Regulation 2.

27 Lungowe v. Vedanta Resources plc [2016] EWHC 975 (TCC).

28 Supreme Court, Permission to Appeal Results – March and April 2018. See https://www.supremecourt.uk/docs/permission-to-appeal-2018-0304.pdf.

29 Chandler v. Cape plc [2012] EWCA Civ 525.

30 Lungowe v. Vedanta Resources plc [2017] EWCA Civ 1528.

31 R (ClientEarth) v. The Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28.

32 ClientEarth v. The Secretary of State for the Environment, Food and Rural Affairs [2015] EWHC 2740 (Admin).

33 ClientEarth (No. 3) v. The Secretary of State for the Environment, Food and Rural Affairs, the Secretary of State for Transport and Welsh Ministers [2018] EWHC 315 (Admin).

34 R (Friends of the Earth Limited) v. North Yorkshire County Council [2016] EWHC 3303 (Admin).

35 Commission v. United Kingdom [2017] Env LR 6.

36 Large Combustion Plant Directive 2001/80/EC. Superseded by the Industrial Emissions Directive on 1 January 2016.

37 Legal Aid, Sentencing and Punishment of Offenders Act 2012 c. 10, Section 85.

38 Magistrates' powers to impose imprisonment are specified by Section 78 PCC(S)A and Section 133 Magistrates' Courts Act 1980 (MCA): six months for one offence or 12 months for two.

39 R v. Thames Water Utilities Limited [2015] EWCA Crim 960.

40 ibid. Mitting J at para. 46

41 ibid. Mitting J at paras. 38–42.

42 McCombe LJ at para. 20, R v. Ineous Chlorvinyls Ltd [2017] Env LR 7(2016).

43 https://uk.practicallaw.thomsonreuters.com/w-007-0800?origination­Context=document&transitionType=
DocumentItem&contextData=(sc.Default)&navId=BD03341A622FC919A09067153F49E83B&
comp=pluk.

44 https://www.ofwat.gov.uk/pn-22-18-thames-waters-failure-tackle-leakage-results-65m-package-customers/.

45 https://www.gov.uk/government/news/tesco-hit-with-major-8million-fine-for-pollution-incident. Tesco Stores Ltd were also required to pay a further £5 million fine for a health and safety offence in relation to the same incident.

46 https://www.gov.uk/government/news/thames-water-fined-1-million-for-pollution-to-grand-union-canal.

47 https://www.gov.uk/government/news/yorkshire-water-fined-11million-for-illegal-sewage-discharge.

48 https://www.gov.uk/government/news/united-utilities-and-contractors-fined-almost-1m-for-polluting-brook-with-corrosive-bleach.

49 https://www.gov.uk/government/news/leeds-businessman-receives-record-jail-sentence-over-22m-recycling-fraud.

50 Bamford v. Turnley (1860) 122 ER 25; Cambridge Water Co Ltd v. Eastern Counties Leather plc [1994] 1 All ER 53.

51 Rylands v. Fletcher [1868] UKHL 1.

52 Regulatory Enforcement and Sanctions Act 2008 c. 13, Part 3.

53 https://www.gov.uk/government/news/water-company-to-pay-a-record-975000-towards-environmental-improvements-following-sewage-spills-on-dorset-coast.

54 Companies Act 2006, Section 172. Note that the Companies Act applies to all UK companies.

55 Directive 2014/95/EU.

56 The regulations came into force on 26 December 2016. The amendments apply in relation to the financial years of companies and qualifying partnerships on or after 1 January 2017. www.legislation.gov.uk/uksi/2016/1245/regulation/1/made. The Companies Regulations 2016 amend the Companies Act 2006 to implement the Directive in the text – see Part 15 of the Companies Act 2006, which has now been amended.

57 Public Interest Disclosure Act 1998 c. 23.

58 ibid., Section 1.

59 Wharton v. Ward Recycling Ltd ET/2800817/2008; BP plc v. Elstone and another UKEAT/0141/09.

60 Environmental Permitting (England and Wales) Regulations 2016/1154.

61 Environmental Permitting (England and Wales) Regulations 2010/675.

62 Water Act 2014 c. 21.

63 Industrial Emissions Directive 2010/75/EU.

64 Energy Efficiency Directive 2012/27/EU.

65 Part IV Environment Act 1995 c. 25.

66 ibid.

67 Air Quality Directive 2008/50/EC.

68 Air Quality Standards Regulations 2010/1001.

69 Air Quality Standards (Amendment) Regulations 2016/1184.

70 Fourth Daughter Directive 2004/107/EC.

71 See footnotes 35 to 37.

72 https://www.gov.uk/government/consultations/air-quality-draft-clean-air-strategy-2018.

73 Department for Environment, Food and Rural Affairs May 2018: draft Clean Air Strategy 2018. https://consult.defra.gov.uk/environmental-quality/clean-air-strategy-consultation/.

74 Draft Clean Air Strategy 2018, p. 72.

75 Draft Clean Air Strategy 2018, p. 71.

76 Directive 2016/2284/EU of the European Parliament and the Council on the reduction of national emissions of certain atmospheric pollutants. The Directive was implemented in the UK by the National Emission Ceilings Regulations 2018/129.

77 Industrial Emissions Directive 2010/75/EU.

78 Medium Combustion Plant Directive 2015/2193/EU.

79 https://www.gov.uk/government/news/260-million-of-clean-air-funding-launched-by-government.

80 Treasury, 2018 Budget, p. 64.

81 Part I Clean Air Act 1993 c. 11.

82 Smoke control orders have now been implemented in most of the UK's major towns and cities.

83 Draft Clean Air Strategy 2018, p. 6.

84 Water Resources Act 1991 c. 57.

85 Water Industry Act 1991 c. 56.

86 Priority Substance Directive 2008/105/EC.

87 Water Framework Directive 2000/60/EC.

88 The Water Environment (Water Framework Directive) (England and Wales) Regulations 2017/407 revoke and replace the Water Environment (Water Framework Directive) (England and Wales) Regulations 2003/3242.

89 Water Environment (Water Framework Directive) (England and Wales) Regulations 2017/407, Regulations 12(6), 13 and 22(6). Note that the relevant EU instruments are listed in Schedule 3.

90 Regulation (EC) 1907/2006.

91 REACH Enforcement Regulations 2008/2852.

92 REACH Enforcement Regulations 2008/2852, Schedule 1.

93 https://www.gov.uk/government/publications/regulating-chemicals-reach-if-theres-no-brexit-deal/regulating-chemicals-reach-if-theres-no-brexit-deal.

94 Waste (England and Wales) Regulations 2011/988.

95 Environmental Protection Act 1990 c. 43, section 34.

96 https://www.gov.uk/government/consultations/reducing-crime-at-sites-handling-waste-and-introducing-
fixed-penalties-for-waste-duty-of-care/outcome/government-response.

97 Hazardous Waste (England and Wales) Regulations 2005/894.

98 Waste Framework Directive 2008/98/EC.

99 Commission Decision on the European List of Waste (COM 2000/532/EC), as amended by Commission Decision 2014/955/EU.

100 Environmental Protection Act 1990 c. 43, section 62A.

101 Note that registration is still required for hazardous waste producers in Wales. See https://naturalresources.wales/permits-and-permissions/waste/register-as-a-producer-of-hazardous-waste/?lang=en.

102 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/466879/waste-crime-consult-sum-resp.pdf.

103 Environmental Protection Act 1990 c. 43, Part IIA.

104 ibid.

105 Waste Enforcement (England and Wales) Regulations 2018/369.

106 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/223705/pb13735cont-land-guidance.pdf.

107 Environmental Protection Act 1990 c. 43, Part IIA.

108 Climate Change Act 2008 c. 27.

109 https://uk.practicallaw.thomsonreuters.com/Document/I2cc9bcc0e67f11e398db8b09b4f043e0/View/FullText.html.

110 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/293759/37630_Budget_2014_Web_Accessible.pdf.

111 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/508193/HMT_Budget_2016_Web_Accessible.pdf.

112 Treasury, 2018 Budget, p. 47.

113 Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2017/1207.

114 https://www.gov.uk/government/publications/carbon-emmisions-tax/carbon-emmisions-tax; https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/686052/Government_Response_to_EU_ETS_2018_compliance_deadlines_consultation.pdf.

115 https://www.gov.uk/government/publications/carbon-emmisions-tax/carbon-emmisions-tax. The Carbon Emissions Tax is included in the Finance Bill 2018-19. See clauses 68–78.

116 Treasury, 2018 Budget, pp. 47–48.

117 https://www.theccc.org.uk/tackling-climate-change/reducing-carbon-emissions/how-the-uk-is-progressing/.

118 https://uk.practicallaw.thomsonreuters.com/Document/I2cc9bcc0e67f11e398db8b09b4f043e0/View/FullText.html.

119 http://unfccc.int/2860.php.

120 http://unfccc.int/kyoto_protocol/items/2830.php.

121 http://unfccc.int/paris_agreement/items/9485.php.

122 The Carbon Budget Order 2016/785.

123 https://www.gov.uk/government/publications/water-abstraction-plan-2017/water-abstraction-plan#addressing-unsustainable-abstraction.

124 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/492411/abstraction-reform-govt-response.pdf.

125 https://www.gov.uk/government/collections/crc-energy-efficiency-scheme.

126 https://www.gov.uk/government/publications/climate-change-levy-main-and-reduced-rates/climate-change-
levy-main-and-reduced-rates.

127 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/544241/shale_wealth_fund_final_pdf-a.pdf.

128 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/658793/shale_wealth_fund_response_web.pdf.

129 https://www.gov.uk/government/publications/about-shale-gas-and-hydraulic-fracturing-fracking/developing-shale-oil-and-gas-in-the-uk#community-and-public-engagement.

130 https://www.gov.uk/government/news/government-proposals-to-simplify-deep-underground-access-for-
shale-gas-and-geothermal-industries.

131 http://www.ukoog.org.uk/community/charter.

132 https://www.gov.uk/government/publications/about-shale-gas-and-hydraulic-fracturing-fracking/developing-shale-oil-and-gas-in-the-uk#community-and-public-engagement.

133 European Parliament resolution of 14 March 2018 on the framework of the future EU–UK relationship (2018/2573(RSP).

134 European Union (Withdrawal) Act 2018.

135 European Union (Withdrawal) Act 2019, section 16(1).

136 https://consult.defra.gov.uk/eu/environmental-principles-and-governance/.

137 https://uk.practicallaw.thomsonreuters.com/Document/Id4af1a371cb511e38578f7ccc38dcbee/View/FullText.html.

138 https://uk.practicallaw.thomsonreuters.com/Document/I3351a6a6e8da11e398db8b09b4f043e0/View/FullText.html.

139 Department for Environment, Food and Rural Affairs 11 January 2018: Policy Paper (Gov't Publication): A Green Future: Our 25 Year Plan to Improve the Environment, p. 129.