893: Environmental principles, air quality and ‘based on’
Today’s entry covers the government’s recent draft environmental principles, an EU judgment on air quality in the UK and a case on what ‘based on’ a scoping opinion means.
In anticipation of the Environment Bill becoming law, whenever that might be – it has been delayed for a third time since its initial introduction in October 2019 – the government has set out a draft ‘policy statement on environmental principles’ that the bill requires, which can be found here.
The statement is the subject of a consultation that runs until 2 June – details here.
The statement expands on the five principles that are also in the Environment Bill:
- rectification at source;
- polluter pays; and
The statement will apply when any government policy is being decided; it does not apply directly to eg individual infrastructure projects but will apply to eg National Policy Statements.
It sets out steps that should be undertaken. Step one is understanding environmental impact – a proportionate approach should be taken. Step two is understanding which of the five principles are relevant. Here I think it mis-states the prevention principle, which it says ‘means that government policy should aim to prevent, reduce or mitigate environmental harm’. I would say that is a hierarchy – prevent first, then if you can’t, reduce as much as possible and mitigate what is left – rather than equivalent options.
Step three is then applying the principles. What might not go down well with environmental groups is that it says the principles should be applied proportionately, balancing social, economic and environmental considerations.
The paper goes through each of the five principles and suggests how it might apply. Two of the sections stood out to me because they seem to go against the principles they are espousing. The one on the polluter pays principle suggests that parties other than the polluter might in fact pay, eg consumers, or an industry sector as a whole. The precautionary principle section suggests that you should be less cautious about new technologies where you don’t know as much, which seems to be the opposite of the principle, although I can understand the desire not to stifle innovation.
More reassuringly a colleague recommended a BBC Radio 4 podcast featuring Dame Glenys Stacey, the prospective head of the Office for Environmental Protection (OEP) that will step into the shoes of the European Commission to police the government’s performance on environmental protection. It is worth a listen.
Air quality news
While on the subject of the European Commission’s policing role, the Court of Justice of the European Union has delivered a scathing judgment on the UK’s performance on air quality, which can be found here. The UK’s defence was that other countries were just as bad and it all comes from the Volkswagen cheating scandal. Unsurprisingly the court said that did not exonerate the UK, neither because other countries are also in breach nor because vehicle standards were being breached.
The UK also contended that only the (admitted) breaches between 2010 and 2017 should be considered, because it issued new air quality plans then that are sorting everything out and they haven’t been taken into account. The court said that the 2017 plans were worse because they lengthened the time for compliance and concluded that:
‘the United Kingdom has manifestly failed to adopt in good time appropriate measures to ensure that the time period during which the limit values in question are exceeded is kept as short as possible in the zones concerned’.
The UK is likely to receive a large fine as a result. Would the OEP be as hard on the government?
In some good news, the first Clean Air Zone outside London comes into force in Bath on Monday 15 March. It does not apply to private cars but taxis and lorries will have to pay £9 and £100 respectively if they don’t meet emissions standards. We are doing a lot of Clean Air Zone work and this is but one example that has finally come to fruition. I like Bath’s slogan for clean air: BreATHe – geddit?
Finally, I came across a case last month because it was the one where the BBC were fined £28,000 for contempt of court for filming and broadcasting part of it – I wondered what planning case could be so interesting as to break the law to report it. The case is about fracking but also contains useful commentary on the new requirement that an environmental statement must be ‘based on’ a scoping opinion if there is one. The judgment can be found here.
The main point at issue is also relevant to DCOs – where something inevitably leads to greenhouse gases (here, extraction of hydrocarbons via fracking that will eventually be burnt as fuel), should that impact form part of the environmental assessment? Answer: no.
The case also covers in passing the requirement that was introduced in the 2017 Environmental Impact Assessment Regulations that an environmental statement must be ‘based on’ any scoping opinion that was obtained (regulation 14(3)(a) if you really want to know). The claimants had said it wasn’t based on it closely enough. The judge pooh-poohed that idea and said that ‘the mere fact that an applicant produces an ES which does not comply with the terms of a scoping opinion does not of itself amount to a breach of the 2017 Regulations’. So I think we can all breathe a sigh of relief that the 2017 regulations haven’t changed much at all in this regard.