Environmental law: the next big talking point

Our panel of experts, Emma Feeney, Catherine Davey, Simon Tilling, Robert Biddlecombe, Anita Lloyd, Professor Karen Morrow, Helen Simm and Victoria Turner consider what the ‘next big talking point’ will be in environmental law.

What do you think the ‘next big talking point’ will be in environmental law?

Emma Feeney: In recent years the debate around business sustainability has been gaining considerable momentum and we expect that this will continue to be the case for the years to come—even more so as environmental lawyers begin to grasp the importance of law in developing sustainable organisations.

In its recent Waste Prevention Programme for England the government emphasised the importance of moving towards a more ‘circular economy’ with the purpose of ensuring the sustainable development of the manufacturing sector. Under this new model, the manufacturing sector will need to consider the financial and environmental benefits of moving away from traditional manufacturing processes to processes that produce material with longer life expectancy.

In the same vein, the recently consulted upon Scottish Climate Change Adaptation Programme, highlighted the implications of climate change for businesses (ie transport and supply chain disruptions, flooding of buildings) and urged businesses to take measures in order not only to reduce their carbon footprint but also to proactively adapt to these challenges. A similar approach has been adopted by England’s first National Adaptation Programme, which proposed the roll out of a Business Resilience Health Check tool to help business identify the parts that are most vulnerable to climate change and prompt the necessary action. Recognising that business sustainability is not only dependent upon the environmental and financial performance of organisations but also on their engagement with society, BIS consulted on the development of a framework of actions on corporate responsibility. Under the proposals businesses are encouraged to integrate internationally recognised principles and guidelines in their individual corporate responsibility strategies.

Catherine Davey: In the short term, I think it has to be flooding—there are so many issues. Department for Environment, Food and Rural Affairs needs urgently to revisit land drainage legislation and funding for flood protection works, as the current arrangements just aren’t working. We also need to have a proper debate within the UK on what we save and protect and what we let go—and how and if we compensate those whose property is sacrificed ‘for the greater good’ (whatever that is). That issue takes me neatly on to global climate change.

Clearly the recent report from the Intergovernmental Panel on Climate Change (IPCC), the UN’s intergovernmental panel on climate change, is going to have a massive impact on the whole world—from today. It is, we are told, both the most sobering so far from the UN climate panel and, the most definitive. The report—a three year joint effort by more than 300 scientists—amounts to 2,600 pages and 32 volumes. The reports suggest that it raises the threat from climate change to a whole new level, concluding that climate change was already having effects in real time—melting sea ice and thawing permafrost in the Arctic, killing off coral reefs in the oceans, and leading to heat waves, heavy rains and mega-disasters. Climate change poses a threat to global food stocks, and to human security. ‘Nobody on this planet is going to be untouched by the impacts of climate change,’ said Rajendra Pachauri, chair of the IPCC.

Helen Simm and Victoria Turner: Fracking, or hydraulic fracturing, is a technique used in the extraction of gas from shale rock. Fracking in the UK has been widely reported in the media in recent times and the government has been keen to express the view that there is robust and effective regulation of the fracking industry in the UK which will ensure that any health, safety and environmental risks are effectively managed. This has been a controversial area.

Regulation in the UK requires operators of sites to have permits and consents in place, including environmental permits from the Environment Agency and consent from the Health and Safety Executive and the Department of Energy & Climate Change. There are also planning requirements which must be met.

This is a fast developing and interesting area. Some members of the European Union (for example, France and Germany) have been lobbying for stronger EU-wide controls and regulations to be implemented to ensure that there is consistent and effective EU-wide regulation of the industry. The government has been opposed to the implementation of any EU regulations (and reportedly recently defeated an EU attempt to impose a binding directive on member states) on the basis that the regulatory regime in the UK is already sufficiently robust to ensure that the health, safety and environmental risks are addressed and controlled. There has been heavy opposition to the government’s approach to this, from within the UK and the EU more generally, and it would seem likely there will eventually be greater EU input to the regulatory regime of the fracking industry. This is certainly an area to watch.

Robert Biddlecombe and Anita Lloyd: In recent years, we have grown almost accustomed to hearing reports of flooding causing damage and disruption around the country, and the news headlines in January and February were dominated by the plight of hundreds of people in Somerset whose homes and businesses had been devastated. The Environment Agency estimates one in six homes are at risk from the various types of flooding (whether groundwater, pluvial, fluvial, coastal, etc). Although the cost of the most recent floods has not been calculated, those that affected the UK in 2007 were estimated to have led to £3bn worth of claims against insurers.

Awareness of the threat posed by flooding appears to be increasing. For example, the Law Society has published its Flood Risk Practice Note which provides solicitors with information to help their clients investigate the terms on which flood risk insurance cover is available and also gives general information in relation to flood searches and other means of investigation. Real estate lawyers should be aware that desktop environmental search products can vary greatly in terms of the level of coverage and detail afforded to flood risk in relation to a property.

Next year, it is expected that the Flood Re scheme will be introduced. Flood Re will be an industry-run, not-for-profit scheme designed to support around 500,000 of the households at highest risk of flood in the UK by capping the premiums payable for cover. If a high risk policy had been ceded to Flood Re and the policyholder needed to claim for flooding, their insurer would pay the claim directly and Flood Re would then reimburse the insurance company. However, there are some notable exclusions to Flood Re. For example, it will not cover commercial properties, homes with the highest council tax bracket, homes built after 1 January 2009 or ‘catastrophic’ events.

In the same way that the liabilities associated with contaminated land rose to the fore of public awareness in the early 2000s (following the introduction of Part IIA of the Environmental Protection Act 1990), it is likely that flood risk will assume an equivalent position in the coming years.

Simon Tilling: The next big issue will be product stewardship in global supply chains. Most businesses have got to grips with emissions from their facilities and many are on the path to resource efficiency (although clearly there is more work to be done - and more work for lawyers - on both issues). The more progressive businesses are already considering the environmental impact of their products throughout the life of the products, and we are starting to see some interesting litigation against suppliers of products for the environmental consequences of the use of those products. For example, we are acting on a major High Court claim arising from the use of a product and its consequences on a major drinking water aquifer in a foreign country. We are also advising on product regulation and compliance, the most high-profile example being the Regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals.

Karen Morrow: In Wales, the prospect of the Future Generations Bill, with its long term vision for social, economic and environmental goals extending to 2050 becoming law, has potentially enormous ramifications for developing a more sustainable framework for government. In a political environment where ‘long term’ usually means ‘until the next election’, such a development could do a great deal to extend political time scales into ecologically meaningful periods that could facilitate more informed and viable decision-making. The prospect on an Environment Act, supporting NRW in its stewardship of Wales’ natural resources is also an inviting one for the environmental lawyer.

Interviewed by Nicola Laver.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This article was written by a panel of experts and was first published in LexisPSL Environment on 2 May 2014.

Filed Under: Environment

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