It’s safe to say the impact of Covid-19 on society and the business world has been nothing short of devastating, and a side-effect of industry coming to a standstill has been putting human-enhanced climate change under the microscope again.
The legal industry has caught onto this spiked interest in the environment: the Financial Times reported that climate change shareholder resolutions jumped by 23% in May, and firms like A&O and Slaughter & May have been among those setting up a new climate change advice service involving new model contracts and helping businesses follow climate-friendly practices. However, more broadly the story is less rosy: judicial reviews and Brexit have electrified the battle over environmental protections.
So what exactly is changing?
George Eustice in the Commons after the Bill passes its Second Reading. Image
Now Britain is leaving the European Union, the former’s obligation to follow the latter’s treaties, regulations and directives has been replaced by the Withdrawal Agreement, meaning that the government needs to bridge the ‘legal vacuum’ for when the the transition period ends on 31st December 2020. The UK government’s new Environment Bill sets out to do this. Minister George Eustice has lauded it as a tool that will “free” the country from “spirit-crushing” EU directives, in the biggest shake-up to environment law since the emission-reducing Energy Act (2011).
The bill sets out i) a new office for environmental protection ii) a long-term environmental plan and iii) the setting of air quality targets, among other things. But eighteen charities including the Wildlife Trust and the Campaign to Protect Rural England have sent a letter to the Prime Minister expressing concern that the government is more concerned about “rip[ping] up the red tape” than environmental protections.
Thus, there is concern this new bill is being influenced by the Government’s anti-EU rhetoric. And the gap between the UK and the Union is already noticeable: the latter has introduced green finance rules, and a ‘Green Bond Standard’ to attract private capital to environmentally sustainable investments in a Covid deal that the UK, having just left the EU, was not a part of.
The Legal Battle: UK Government vs. CJEU and Judicial Review
Another effect of Brexit is that the UK will no longer be compelled to follow rulings of the European Court of Justice (CJEU) after 2024. The government has faced many legal challenges over complying with environment law at the CJEU, and these will continue until 2024, which is still quite some time. In 2015, the EU took the UK to court over power plant emissions. The UK is currently facing up to eleven other pending infringement violations. (Image)
And even without the EU, the government is facing judicial review. For example, the High Court in Stephenson v. Secretary of State for Housing, Communities & Local Government (2019) ruled that the government’s policy framework on shale gas was “unlawful”. The government suffered another defeat earlier this year when the government decision to expand Heathrow Airport was challenged by the Mayor of London, and ruled unlawful by the Court of Appeal back in February.
It’s no wonder then why the government announced just at the start of this month, an independent review into possible changes to judicial review to ensure it is “not abused to conduct politics by another means or to create endless delays”.
But the main point is that these legal challenges represent two frontiers: both domestically and in Brussels, where the UK government has been put on the defensive on environmental law. The government’s framing of their new environment bill as a positive split from the EU and the CJEU highlights that the UK government is willing to be the striker on the football field rather than the goalkeeper, even though the CJEU has been the body compelling the UK to adhere to strict environmental protections for years.
Conclusion
EU imprint on our law is huge. In R (Shirley) v. Secretary of State for Housing, Communities & Local Government, the appellants, two local Canterbury residents, claimed that an EU air quality directive, brought into UK domestic law in a 2011 Act, compelled the Secretary of State to intervene to stop a house planning decision by the Council that would breach air levels. The Secretary of State’s decision to not intervene to stop the planning decision was put under judicial review. Although the local residents lost, directives like this from the EU hold considerable sway in matters like house planning.
So much of our environment law is of EU origin, and it is likely that much of CJEU’s case law will still be used to “assist in matters of interpretation”. The “broad statements of principle” in EU directives has invited legal challenges like outlined above, so the government’s change in bringing in a new Environment Bill with its new ‘Office for Environmental Protection’ and more precise clauses, is probably a welcome decision.
Environment law is not suffering an open assault; if anything it has been bruised by legal battles, and government rhetoric has defined it as a political battle with the European Union. This will haunt the new environment bill even if it’s scope is expansive and beneficial to environmental protections.
In other news…
The assault on the environment is in full swing in the USA.
In July, the New York Times reported that the Trump administration is rolling back 100 environmental regulations. This involves the 50-yr old National Environment Policy Act, which is used by minorities to fight pipeline and mine polluters.
Dan is a second-year politics student from Warwick, and is planning to pursue commercial law. He enjoys golf, and is currently learning German. He is also taking a course on Successful Negotiation.
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