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In this latest podcast of 2019, Mark Davies and Charles Morgan of 6 Pump Court consider and discuss:
- legal action brought by Friends of the Earth (FoE) against Shell, for its alleged role in climate change
- progress under the Government's 25 Year Environment Plan, and
- the potential prosecution of up to 1130 climate protesters following Extinction Rebellion
To listen to the podcast click here
Shell's alleged role in causing climate change - listen from 0.30 mins
FoE have recently commenced legal action against Shell, in the Court of Appeal in the Hague. Is it surprising that a multi-national oil producer responsible for a possible 1.8% of all carbon dioxide emitted by human activity would be of interest to FoE, asks Charles? The allegation is that, because of its early knowledge of climate change and its role in causing it, Shell is in breach of its duty of care and threatens Articles 2 and 8 of the European Convention on Human Rights by essentially posing a threat to the climate goals of the Paris Agreement. According to FoE Shell is 'knowingly undermining the prospect of global temperatures being kept below 1.5 degrees Celsius. As Charles points out, the case is likely to be a lengthy one. Why choose the Dutch court? Mark explains FoE's claim that as Shell's climate change policy is set by its HQ in the Hague, then dutch law will apply. Under dutch law Shell is not allowed to 'cause a danger to others where measures can be taken to prevent that danger from occurring'. Mark and Charles go on to discuss the similarities this case has with the successful Urgenda Case which largely relied on the same principles of the dutch civil code and which was headed by the same prosecution lawyer. Are FoE likely to succeed here? Mark suggests that much will depend on establishing 'unlawful endangerment'. Finally, note that the target remedies sought by FoE are very different to those targets for lowering carbon emissions currently set by Shell.
25 Year Environment Plan Progress Report - listen from 4.0 mins
Next, Mark and Charles discuss the recently published Progress Report on the Government's 25 Year Environment Plan (25 YEP). This Report comes 15 months after publication of the 25 YEP itself. Mark notes that of the 40 priority actions expected to make the most significant contribution to the 10 goals of the 25 YEP, 4 have actually been delivered. According to Charles these are a step in the right direction in that they mandate or enable practical action to be taken for the environment, for example the Clean Air Strategy which is already producing some tangible results. According to the Report a further 4 actions are subject to minor delays and 32 are 'on track for timely delivery'. But, as Charles points out, the 25 YEP doesn't contain any discernible list of 40 priority actions, rather 168 'actions we will take' and a Table showing Status for Priority Actions containing 4 items completed 2018/2019 and 4 further items ' in progress minor delay'. All slightly confusing? Charles asks what other priority actions exist, and what real progress has been made? Answers on a postcard please.
Potential Prosecution of Climate Change Protesters - listen from 7.50 mins
In the final part of the podcast, Mark and Charles discuss the apparently low number of prosecutions following Extinction Rebellion in London in April this year. Of 1130 protesters arrested, only 70 have, so far, been charged. Until now those arrested were 'under investigation' but the Deputy Assistant Commissioner has now said that the police anticipate 'putting all of those arrested to the Crown Prosecution Service'. Won't this drown the Court System? It will certainly test the Courts. Mark explains that at present there is a right to 'protest in a peaceful way even if it causes some obstruction'. But Charles suggest that there may be another agenda here - the proposed review by the Metropolitan Police of Public Order legislation to discourage similar style protests in the future. Maybe mass prosecutions are a means to achieve this?
For more information on these stories, see:
- Lexis PSL News: State of Netherlands v Urgenda Foundation
- Lexis PSL News: New report outlines government’s progress in improving the environment
- Lexis PSL News: Net Zero—will the UK lead the way in combating climate change?
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