Category: Environmental law – EU

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Harris ea v Environment Agency. The remedy for an Agency’s breach of statutory obligations, with lessons for climate litigation remedies.

Harris ea v Environment Agency [2022] EWHC 2606 (Admin) I fear is another case I let slip on the blog. It is a judgment which discusses to right to an effective remedy following the earlier finding in Harris & Anor v Environment Agency [2022] EWHC 2264 (Admin) that the Agency’s allowing water extraction in three Sites of Special Scientific Interest was in breach of retained EU law, namely Article 6(2) Habitats Directive (measures designed to prevent the deterioration of habitats and species) and of the equally retained EU law precautionary principle.

The issue at stake in current case is the appropriate remedy, a classic challenge in judicial review cases in instances where the authorities have been found in breach of an obligation of effort rather than one of result. Those of us involved in climate litigation will appreciate the difficulty.

The Agency suggests the finding that there was a breach is enough of a remedy. Claimants disagree, seeking an order in the nature of [2018] EWHC 315 (Admin) which the Agency says must be distinguished on the grounds that the regulatory requirements relevant to that order, they argue, is more prescriptive.

Johnson J holds [7] that ‘the claimants have not just a presumptive common law right to a remedy, but also a statutory right’, given Article 19(1) TEU’s right to an effective remedy. A mandatory order that the Environment Agency must formulate a plan is issued [10], a plan which must be produced within 8 weeks [13]; that deadline has passed at the time of posting], disclose that plan to claimants [17] and with the precise formulation of the order [26] being

“The defendant shall, by 4pm on 7 December 2022, provide to the claimants details of the measures it intends to take to comply with its duties under Article 6(2) of the Habitats Directive (“Art 6(2)”) in respect of The Broads Special Area of Conservation. The details shall include an indication as to the time by which the defendant intends to have completed those measures. It shall also include, so far as practicable, the scientific and technical basis for the defendant’s assessment of the measures that are necessary to comply with Art 6(2).”

More on the nature of the kind of orders judges may give to authorities is currently discussed in a wide range of environmental law, including climate law litigation. It is an interesting application of the nature of judicial review and trias politica..

Geert.

Monash University, Law 5478 Strategic and Public Interest Litigation.

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The CJEU in CIHEF on French restrictions to marketing and advertising of rodenticides and insecticides. A masterclass on exhaustive legislation, and on Trade and Environment.

I am hoping for a few gaps in yet again a mad diary this week, to catch up on quite a few developments I tweeted on earlier. First up is judgment in C‑147/21 Comité interprofessionnel des huiles essentielles françaises (CIHEF) et al v Ministre de la Transition écologique ea. The case concerns the possibility for Member States to adopt restrictive measures on commercial and advertising practices for biocidal products. It is a good illustration of the mechanism of precaution or pre-emption in EU law, and of the classic application of Article 36 TFEU’s exceptions to free movement of goods.

Applicants contest the French restriction of commercial practices such as discounts and rebates, as well as advertising, for two specific biocides categories: rodenticides and insecticides. The secondary law benchmark is Biocidal Products Regulation 528/2012.

As for the first category, commercial practices such as discounts, price reductions, rebates, the differentiation of general and specific sales conditions, the gift of free units or any equivalent practices, the Court, also seeking report in the AG’s Opinion, held [33] that the Regulation’s definitions of ‘making available on the market’ and ‘use’ of biocidal products are as such sufficiently broad to cover commercial practices linked to the sale of those products, however [34] that the Regulation does not seek to harmonise the rules relating to commercial practices linked to the sale of biocidal products.

That leaves the classic CJEU Case 8/74 Dassonville test (all measures of a Member State which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union are to be considered as measures having an effect equivalent to quantitative restrictions within the meaning of that provision), tempered by Joined cases C-267/91 and C-268/91 Keck et Mithouard : there is no direct or indirect hindrance, actually or potentially, of trade between Member States, in the event of:

  • the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements [[39] of current judgment the CJEU confirms this is the case here]
  • on condition that those provisions apply to all relevant traders operating within the national territory [41 held to to be the case here] and that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States [[42] held to have to be judged by the national court but 43 ff strongly suggested to be the case here (i.e. there not being distinctive affectation of domestic cq imported products)].

Should the national court decide that (unlike what the CJEU indicates) the French measures are not selling arrangements, carved out from Article 34’s scope altogether, the CJEU [48] ff holds that the French measures most likely  (the final arbiter will be the French judge) enjoy the protection of both Article 36 TFEU’s health and life of humans exception, and the Court’s Cassis de Dijon-inserted ‘overriding reason in the public interest’ aka the rule of reason aka the mandatory requirements exception: strong indications are that the measures are justified by objectives of protection of the health and life of humans and of the environment, that they are suitable for securing the attainment of those objectives and that they do not not go beyond what is necessary in order to attain them. The referring court will have to confirm.

As for the French obligations relating to advertisements addressed to professionals (which includes in particular adding a specific statement), here the Court holds [60] ff that the Regulation does exhaustively harmonise the  wording of statements on the risks of using of biocidal products which may appear in advertisements for those products. This precludes the relevant French rules.

[68] ff however the French prohibition of advertising addressed to the general public, is held not to have been regulated by the Regulation, with the Court coming to the same conclusions as above, viz Article 34’s selling arrangements carve-out and, subsidiarily, Article 36 TFEU’s and the rule of reason exceptions.

A final check therefore is to be done by the referring court however it seems most likely the French restrictions will be upheld.

Geert.

EU Environmental Law, 2017, Chapter 17, p.308 ff.

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Dutch judge gives green light to export ban for fuels banned under EU law. Gives short shrift to extraterritoriality and leakage arguments.

In Zenith Energy Amsterdam B.V. and Exolum Amsterdam BV v The Netherlands a Dutch judge last week rejected the challenge by fuel traders of the Dutch ban on export of fuels to non-EU (particularly Ecowas) countries of fuels falling short of the EU requirements under Directive 98/70. The Dutch Statute is the culmination of established Dutch studies of the sector (The Netherlands being a prime tank storage country) and of repeated EOWAS calls that the export causes issues on their territories.

A first test is the duty of care under the Dutch environmental laws, which in summary obliges industry et al to prevent and /or limit the environmental and public health impacts of their production. The judge [4.10] refers to the travaux and recitals of the Act which contains the duty of care, as having recognised the global, one might say ‘extraterritorial’  impact of Dutch and European industrial activities, and emphasises that the duty of care requires a dynamic interpretation in line with societal and technical developments.

In 4.13 the judge emphasises that Directive 98/70 does not harmonise export outside of the EU and that the Directive therefore does not impede national rules on export and in 4.14 the rule is said not to force duties upon third States who themselves have signalled the difficulties. The judge also explicitly refers to Urgenda and UNEP to emphasise that looking after the environment and public health elsewhere, is an expression of the State’s own duty of care. 4.16 ‘fuel leakage’ (the drug dealer defence: trade will just move elsewhere, Antwerp in particular) has not been made out on the facts, quite the opposite, the State can show that the majority of traders already export cleaner fuel from Dutch ports.

Of note is also that the judge, Vetter J, in commendable Dutch style, does not exhaust himself in the arguments, rather cutting straight to the chase.

A judgment of note. Geert.

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Third party funding for climate change litigation.

A short note to refer to this post on the Wave News which focuses on third party litigation funding and how it might be used in climate change litigation, with input by Yours Truly. A good introductory summary of the opportunities and points of attention of third party funding generally, too.

Geert.

 

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JP v Ministre de la Transition écologique. The CJEU unlike its AG, rules out Frankovich liability for the EU air quality Directives.

Update 02 02 2023 see further analysis by Mario Pagano here.

A disappointing judgment was issued just before end of year 2022, when the Court, unlike its Advocate General Kokott, held that the ambient air quality Directives do not directly grant a right to compensation in the event of an infringement of the limit values.

In Case C-61/21 Ministre de la Transition écologique and Premier ministre, the CJEU essentially insisted ‘Frankovich’ liability (the power for individuals to claim compensation, on the basis of EU law, of EU Member States when the latter fail properly to implement EU law; Such liability is subject to three conditions: namely that the rule of EU law infringed is intended to confer rights on them, that the infringement of that rule is sufficiently serious and that there is a direct causal link between that infringement and the damage suffered by those individuals) can only be extended to cases where the EU secondary law at issue, grants individual rights.

The Court held however that even though [54] the air quality Directives impose clear and precise duties which the Member States need to achieve, these are aimed at protecting the environment and public health as a whole, not individuals’ right to health and environmental protection [55].

Some might see in this reasoning a strict schism suggested by the Court between the collective enjoyment of public health and a healthy environment on the one hand, and the individual availability of same. I do not think though that this is what the Court had in mind, rather, one assumes, an ambition to cap the amount of cases that might otherwise reach the CJEU.

The Court then directs individuals to the national level, so as to obtain if necessary a court order forcing the authorities to draw up relevant plans (a route confirmed by Case C‑404/13 Client Earth) and it of course confirms that national law may be more generous [63].

The unfortunate consequence of the judgment is that there will not be a level playing field for individuals when it comes to employing the right to compensation for infringement of EU law, and of course an encouragement of a certain amount of forum shopping.

Geert.

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Dutch court denies RWE, UNIPER damages for coal phase-out. Rejects ia ‘permit defence’ under the EU Emissions Trading Scheme ETS.

RWE’s case (seeking huge damages for the impact on its assets following the Dutch coal phase-out) under investor-State dispute settlement (ISDS) continues I understand (I would also suggest it is problematic given the ECT’s fork in the road provisions), while Uniper’s will be dropped as part of its bail-out conditions. Yet this post is about yesterday’s first instance Uniper judgment and RWE judgment in the Dutch courts. I use the Uniper judgment for this post, the RWE judgment is not materially different as to its legal analysis.

Of note is first of all that these judgments are by the ‘commercial’ chamber at the Den Haag court, not an ‘environmental’ chamber. This might be relevant for those wishing to present the judgment as one of a maverick band of environmental crusaders.

RWE and UNIPER’s claims are based on ‘A1P1‘ (Article 1 of the First Protocol to the European Convention on Human Rights) and Article 17 of the Charter of Fundamental Rights of the EU, both of which protect the right to property.

[5.6] the court lays out the benchmarks (translation courtesy of DeepL and double-checked by me):

( a) is there “possession” (property)

( b) is there “interference,” that is, deprivation or regulation of the right to property?

If both these conditions are met, then the following requirements are examined:

( c) is the interference “lawful,” that is, provided for by law;

( d) if so, does the infringement have a legitimate objective that serves to promote the “general interest,” and

( e) if so, is there a “fair balance,” that is, a reasonable balance, between the requirements of the general interest and the protection of the fundamental rights of the individual?

The latter “fair balance test” is not satisfied if there is an individual and excessive burden on the person concerned.

[5.9] the State had argued that uncertain future earnings are not caught by A1P1 however the court [5.10] disagrees. The corporations have a long-term guarantee to use of the site, ia via a long-term lease. That the earnings might potentially not qualify as possessions, does not diminish the qualification of the guaranteed economic interest as ‘property’.

Interference, lawfulness and general interest are established each in one para [5.11 ff] , and did not seem to be the focus of much discussion even by the parties.

Fair balance is discussed extensively [5.14] ff. [5.15.3] the court qualifies the measure as regulatory interference and not de facto expropriation (the latter would have triggered guaranteed compensation rights). Even if electricity generation using coal will be phased-out, after the end of the transition period, Uniper will continue to have use of the site and has indeed already assumed such use in announced coal-free business plans.

The court then discusses the foreseeability at length, concluding [5.16.31] that although the Dutch Government frequently expressed support for modern facilities generating electricity using coal, this was always done with the caveat that that method had to be compatible with the Dutch climate commitments. [5.16.35] the ETS permit defence is dismissed.

[5.17.9] the court, having studies the various scientific reports presented to it, holds that there are most definitely alternative uses for the site. That their profitability is uncertain, is simply also a feature of energy markets as a whole.

[5.18] the court holds that the Dutch coal phase-out does have an effect on reduced CO2 emissions (carbon leakage is not accepted as being of much relevance to that conclusion). For the measure to be considered not the least trade-restrictive, the Dutch State is held to have a wide margin of manoeuvre and it is not established that the State gravely erred in opting for a coal phase-out [5.18.7]. The long transition period is held to substantiate enough room for compensation [5.19.6], again with reference to the volatility of market returns as being part and parcel of energy markets full stop.

Like the Dutch judgments eg in Urgenda, this judgment on protection of property rights viz GHG emission reduction policies, is likely to serve as an international benchmark. It can be appealed, of course.

Geert.

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Porr Bau: The CJEU encourages the circular economy and resource efficiency in its approach of waste law and excavated, uncontaminated soil.

The Court yesterday held in C-238/21 Porr Bau. I reviewed Medina AG’s Opinion here.

The Court notes ia [27] Austria’s contention that, under Austrian law, where materials are excavated or demolished in the course of a construction project, the main purpose of the construction developer is usually to carry out that project without being hindered by those materials, with the result that they are removed from the site in question with the intention of discarding them.  That sentence already holds the key to the eventual judgment in the word ‘usually’.

The Court like, as I noted, the AG, repeatedly refers to Sappi Austria. [47] following from the various elements considered in Sappi Austria (which itself cross-refers to eg CJEU Shell), the national court is instructed to determine whether the excavated materials constituted a burden which that construction undertaking sought to discard, with the result that there would be a risk that that undertaking would discard them in a manner likely to cause harm to the environment, particularly by dumping them or disposing of them in an uncontrolled manner. [49]:

In the present case, it is apparent from the information before the Court that, even before the excavation of the materials at issue in the main proceedings, local farmers had made an express request for the supply of such materials. After appropriate construction projects had been found, making the requested excavated materials available, that request, it is stated, led to a commitment by Porr Bau to make those excavated materials available, alongside an agreement under which that undertaking would carry out, by means of those materials, the works to adapt and improve the land and cultivation areas duly identified. Such factors, if proven which it is for the referring court to determine, do not appear to be such as to establish the intention of the construction undertaking concerned to discard those materials.

The Court then leaps to an assessment of whether the soil may be considered a by-product under Article 5 WFD, in a logical sequence which I still do not quite get: [50]

It is, therefore, necessary to examine whether the excavated materials at issue in the main proceedings must be classified as a ‘by-product’ within the meaning of Article 5(1) of Directive 2008/98.

It is the ‘therefore’ which I do not understand. If a party does not ‘discard’ the materials which the Court seems to suggest is the case here, then the ‘waste’ definition is not met. There is then no need to consider whether the materials might be ‘by-products’, for this would mean that if the scenario does not meet with the A5 ‘by-products’ definition, they might nevertheless have to be regarded as waste despite the earlier determination of there not being an element of discarding.

The Court nevertheless assesses all A5 criteria leading it strongly to suggest that these products are indeed by-products. It repeats in my view its fallacy of the waste-by products relationship in the dictum of the judgment:

Point 1 of Article 3 and Article 6(1) of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives,

must be interpreted as precluding national legislation under which uncontaminated excavated materials, which, pursuant to national law, are in the highest quality class,

–      must be classified as ‘waste’ where their holder neither intends nor is required to discard them and those materials meet the conditions laid down in Article 5(1) of that directive for being classified as ‘by-products’, and

–      only lose that waste status when they are used directly as a substitute and their holder has satisfied the formal criteria which are irrelevant for the purposes of environmental protection, if those criteria have the effect of undermining the attainment of the objectives of that directive.

It also rebukes the Austrian regime from the point of view of end of waste status, dismissing some of the Austrian requirements for a material to be able to reach that status, as irrelevant and counter-productive to the objectives of the WFD. These requirements are said to be “formal criteria (in particular record-keeping and documentation obligations) which have no  environmentally relevant influence” however neither the CJEU nor the referring court give any further detail.

This is a first chamber, in a five -judge composition. I don’t think it has definitively solved the relationship between ‘waste’ and ‘by-products’.

Geert.

EU Waste law, 2nd ed 2015, 1.20 ff.

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Porr Bau. Medina AG on waste and end-of-waste status of excavated soil.

Medina AG’s end June Opinion in C-238/21 Porr Bau GmbH v Bezirkshauptmannschaft Graz-Umgebung will delight waste lawyers for the case once again evolves around the definition of ‘waste’ as applied to excavated soil. Statute to be interpreted is the WFD or the Waste Framework Directive 2008/98. CJEU SAPPI is a recent judgment  often referred to by the AG.

Porr Bau, the applicant in the main proceedings, is a construction undertaking established in Austria. In July 2015, certain local farmers asked it to supply them, against payment, with excavated soil and to distribute it over their properties. The purpose of the farmers’ request was to level their agricultural land and improve their cultivation areas, thereby increasing yields. Porr Bau applied to the relevant authorities for a statement that the soil was not to be considered waste so as it could avoid a number of taxes. That authority disagreed and also held that the soil, which it considered to be waste, had not yet reached end-of-waste status.

The AG (36) opines that it should not be assumed that all excavated soil by a construction undertaking is by default to be discarded, and that it is difficult to conclude that, under circumstances such as those of the present case, the intention of a construction undertaking is to discard excavated soil that has been carefully selected, subjected to a quality control and supplied as uncontaminated top-quality material in order to attend to a specific request from local operators in need of that material. He also suggests, less convincingly in my view, (38 ff) that such soil may be considered a by-product of the construction sector. 

Should he not be followed on the waste definition issue, the AG suggests and he is right in my view that national law must not deny end-of-waste status until the holder fulfils certain formal requirements with no environmental relevance such as record-keeping and documentation obligations.

Geert.

EU Waste law, 2nd ed 2015, 1.20 ff.

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A primer on the latest climate litigation judgment: Friends of the Earth et al v UK Government. Victory on transparency and data grounds.

Others will no doubt analyse Friends of the Earth Ltd & Ors, R (On the Application Of) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin) at much more length. I just thought I would pen down my thoughts when reading the judgment.

The case is a further judgment holding Governments to account for not addressing climate change challenges properly. The United Kingdom being a dualist country (all the more so following Brexit), the arguments do not much feature the Paris Agreement directly. Rather, claimants aim to hold Government to how Parliament said it should act in addressing climate change  in the Climate Change Act 2008 – CCA 2008, and, additionally, through the requirements of the European Convention on Human Rights, whether or not in combination with the UK Human Rights Act. The core of the exercise and judgment therefore is one of statutory interpretation.

Of note first of all is that most of the claimants’ arguments were rejected and one assumes therefore that they will be seeking permission to appeal (just as the Government will).

The judgment kicks off with the oblique reference to trias politica. Holgate J [22] cites R (Rights: Community: Action) v Secretary of State for Housing Communities and Local Government [2021] PTSR 553 at [6]: –

“It is important to emphasise at the outset what this case is and
is not about. Judicial review is the means of ensuring that public
bodies act within the limits of their legal powers and in
accordance with the relevant procedures and legal principles
governing the exercise of their decision-making functions. The
role of the court in judicial review is concerned with resolving
questions of law. The court is not responsible for making
political, social, or economic choices. Those decisions, and those
choices, are ones that Parliament has entrusted to ministers and
other public bodies. The choices may be matters of legitimate
public debate, but they are not matters for the court to determine.
The court is only concerned with the legal issues raised by the
claimant as to whether the defendant has acted unlawfully.”

And [194]: judicial review in this case must not be merits review and the judge must adopt a ‘light touch’.

Starting with the ECHR arguments, there were summarily dismissed [261] ff. They engaged with Article 2 ECHR’s right to life, Article 8’s right to family life (these two being the classic anchors for environmental rights in the ECHR) and Article 1 of the first protocol (‘A1P1′)’s right to [protection of property. Holgate J holds that the claimants’ argument on the ECHR ‘goes beyond permissible incremental development of clear and constant Strasbourg case law’ [275] and [269-270] that the Dutch Urgenda decision offers a narrow window of ECHR relevance to climate law which does not open in the current case (with [270] in fine an explicit warning that Dutch authority, it being a monist country, should not hold much sway in England and Wales).

A first ground discussed the role of quantitative v qualitative assessment and whether and the degree to which the Minister was to show the targets could be met quantitatively. The judge held that ‘the CCA 2008 does not require the Secretary of State to be satisfied that the quantifiable effects of his proposals and policies will enable the whole of the emissions reductions required by the carbon budgets to be met. The [statutory] obligation …does not have to be satisfied by quantitative analysis alone.’ [193].

However one of the grounds on which the challenge did succeed is the quality of the input for the Minister’s decision: this overall briefing was held to have omitted data the minister was legally obliged to take into account, and which was not insignificant. As a result the Minister failed to take it into account as a material consideration, so that his decision was unlawful (compare [200]). [221] the briefing was held to have been wanting, in that it failed to identify under the quantitative analysis the contribution each quantifiable proposal or policy would make to meeting the UK’s carbon budgets; and it failed to identify under the qualitative analysis which proposals and policies would meet the 5% shortfall for one of the carbon budgets and how each would do so.

[246] ff (where Holgate J does refer, albeit with statutory distinguishing, to relevant Irish cases), another partial ground is upheld namely that of proper information given to Parliament (and therefore also the public; both a sore point in the current UK Government) on the data reached for the Ministerial conclusion and data on the pathways for delivery themselves. [257]: ‘contributions from individual policies which are properly quantifiable must be addressed in’ the report given to Parliament and hence the public.

The result therefore is important in terms of accountability and transparency (where unfortunately no mention was made of the Aarhus Convention which continues to apply to the UK), with the latter element also being inspirational for other jurisdictions where Governments have been told to go back to the climate change drawing board.

Geert.

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PH v Venezia Giulia. CJEU confirms room for Member States under the GMO Directive to restrict approved GMOs with a view to preventing contamination.

In Case C-24/21 PH v Venezia Giulia, the Court has confirmed the room for Member States under Directive 2001/18 to restrict or prohibit by law the cultivation of Genetically Modified Organisms crops approved at the EU level.

Article 26 bis of the Directive says in so many words “Member States may take appropriate measures to avoid the unintended presence of GMOs in other products”.

It is the ‘unintended’ presence of GMOs in other products that can be regulated ([53] this is to ensure the proper choice for consumers between organic, conventional and GMO products, and [47] these must not relate to the environmental or public health implications if GMOs, the latter already having been included in the risk assessment that leads to EU approval.

Of note is that the judgment did not yet discuss the wider room, introduced later, for Member States to restrict GMOs on the basis of ‘environmental or agricultural policy objectives, or other compelling grounds such as town and country planning, land use, socioeconomic impacts, coexistence and public policy’.

Geert.

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