Armin Solimani

Winston Churchill once remarked that “[for] my own part, I see little glory in an Empire which can rule the waves and is unable to flush its sewers”. Had he been alive today, he may have lamented that modern Britain now does neither. 

Jonathan Welch

On 2 July, the High Court handed down an important judgment: the first to consider s.19 of the Environment Act 2021, which requires a Minister to have due regard to the Environmental Principles Policy Statement when making policy. 

Claire Nevin

On 09 April 2024, the European Court of Human Rights (“ECtHR”) handed down its long-awaited judgment in three seminal climate cases: Carême v France (ECHR no 7189/21), Duarte Agostinho v Portugal and 32 others (ECHR no 39371/20), and Verein Klimaseniorinnen v Switzerland [2024] ECHR 304, no 53600/20. See Jonathan Welch’s previous blog post on Duarte Agostinho v Portugal.

Esther Drabkin-Reiter

The diminutive sand eel – a small, eel-like fish most commonly photographed hanging out of a puffin’s beak – has become the centre of the first UK-EU dispute under the Trade and Co-operation Agreement (TCA), which governs the post-Brexit relationship between the UK and the EU.

Armin Solimani

On the 3rd May 2024, the High Court held that the government’s Carbon Budget Delivery Plan (“the CBDP”), which the Secretary of State for BEIS had devised pursuant to section 13 of the Climate Change Act 2008 (“the CCA”), was unlawful. 

Gabriel Nelson

Famously, the legal philosopher HLA Hart described the system of international law as ‘primitive,’^[1] given its distinct lack of secondary rules: the rules which dictate how primary rules (those imposing obligations) are identified, changed and adjudicated upon.^[2]

Armin Solimani

In 2011, the government published its first National Policy Statements for Energy Infrastructure (“EN 2011”). These were important documents, setting out the government’s policy for energy-related Nationally Significant Infrastructure Projects (“NSIPs”). 

Claire Nevin

In November 2023, the Advertising Standards Authority (“the ASA”) made the unprecedented decision to ban two Toyota SUV advertisements on the basis that they had “not been prepared with a sense of responsibility to society.”

Shea Anderson

The island of Ireland represents a potentially influential staging ground for strategic climate litigation that could raise ambition and ensure implementation at both domestic level and internationally.

Imogen Smalley

The long-awaited Biodiversity Net Gain (BNG) requirements for planning developments became mandatory for larger developments on 12 February 2024.[1]

Stephanie Bruce-Smith

When is specific disclosure of ministerial submissions appropriate in the context of a section 288 appeal? This was the question with which the court had to grapple in Friends of the Earth Ltd v SSLUHC and others [2023] EWHC 3255 (KB).

Horatio Waller

Regulators must meet reasonable standards of transparency and proportionality when exercising their functions. Those standards have to some extent always been present in the common law.

Claire Nevin

Dr Richard Caddell

Happy New Year from FTB’s Environmental Law Blog! We are delighted to announce two new members of the Editorial Board – Dr Richard Caddell and Claire Nevin, whose biographies are provided below.

Richard Honey KC

ClientEarth’s judicial review of the Financial Conduct Authority’s decision to approve the prospectus of Ithaca Energy plc has been refused permission by Lang J after a renewed application.  The Judge also held that the challenge was not an Aarhus Convention claim.

Stephanie Bruce-Smith

On 26th October 2023, the Levelling Up and Regeneration Act 2023 and the Energy Act 2023 received royal assent.[1]  Both Acts will implement significant changes to existing environmental law or include powers to do this by way of regulations. In particular, their enactment is likely to result in changes to existing protection under the Conservation of Habitats and Species Regulations 2017 (the ‘Habitats Regulations 2017’). 

Stephanie Bruce-Smith

On 26th October 2023, the Levelling Up and Regeneration Act 2023 and the Energy Act 2023 received royal assent. Both Acts will implement significant changes to existing environmental law or include powers to do this by way of regulations. 

Claire Nevin

This blog is the second of a two-part series on Per- and poly-fluoroalkyl substances (“PFAS”), or so-called “forever chemicals”. Part 1 provided an overview of the environmental and public health risks associated with PFAS and explored the potential legal avenues for providing redress in the courts. Part 2 considers in more detail the regulatory regimes governing the use of PFAS.

Helen Mitcheson

The marine environment is important in many ways. It is vital, therefore, that it is protected.  This article explores the current policy and targets in relation to the marine environment around England, both in respect of nature protection and recovery, and targets for renewable energy.  It then discusses mechanisms to meet these targets and how these will potentially work together.  

Anurag Deb

A functioning government may be a given in most parts of the world, but it has become somewhat of a luxury in Northern Ireland.

Gabriel Kocjancic Nelson

The Government recently announced plans to expand oil and gas drilling in the North Sea. The decision has been subject to wide-spread controversy, including criticism from conservative MP Chris Skidmore and several NGOs. Currently, the North Sea Transition Authority (NSTA), the regulatory body overseeing the licensing and exploration of oil and gas, is undertaking the 33rd offshore oil and gas licensing round. A total in excess of 100 licences is expected to be awarded in the autumn.

Andrew Fraser-Urquhart KC

Andrew Fraser-Urquhart KC reflects on last week’s policy announcements about onshore wind.
I used to love windfarm inquiries. They were inevitably in remote and scenic places, the passionate views on both sides of the argument always made them lively encounters, and the advocates’ task in weighing up the nuances of energy policy against the Marmite views on visual impact was always a great challenge.  

Richard Honey KC

Tobin Byers

This article explores the recent High Court decision of Mr Justice Trower to refuse permission for ClientEarth to proceed with an application against Shell for alleged breaches of directors’ duties relating to climate change (ClientEarth v Shell Plc [2023] EWHC 1897 (Ch)). It looks at the background to the claim and the judgment itself, before considering the lessons for future climate litigation.

Niall McLean, Rebecca Morrison

Post Brexit, the Scottish environmental law landscape looks a bit different. In this blog we summarise some of the current challenges and opportunities in Scotland. We've chosen to describe those as being about continuity, consistency and court reform. 

Claire Nevin

This blog is the first of a two-part series on PFAS, or so-called “forever chemicals”. Part 1 provides an overview of the environmental and public health risks associated with PFAS and explores the potential legal avenues for providing redress in the courts. Part 2 will consider in more detail the regulatory regime governing the use of PFAS in the EU and UK.

Richard Honey KC

It is now two years since the ‘Independent Expert Panel for the Legal Definition of Ecocide’ published its definition and commentary on ecocide.  Since then there has been much discussion about whether a new crime of ecocide should be created within the framework of the International Criminal Court Rome Statute. 

John Jolliffe

The Supreme Court has given a significant judgment about nuisance, civil procedure and the law of limitation in Jalla v Shell [2023] UKSC 16. 

Kate Tandy

In this blog post, I set out the key functions of the Office for Environmental Protection and highlight a selection of its work under its scrutiny of environmental law and enforcement functions during its first 18 months.

Merrow Golden

Dr Hannah Blitzer

On 7 December 2022, the Department for Levelling Up, Housing & Communities released the Secretary of State, Michael Gove’s, highly anticipated called-in Decision Letter on a coal mine located in Whitehaven, West Cumbria. The decision granted planning permission to West Cumbria Mining Ltd under s 77 of the Town and Country Planning Act 1990 for a metallurgical coal mine. The mine will produce “coking” coal, which is used for steel production (as opposed to thermal coal which is used for power generation).  

Merrow Golden

Hannah Blitzer

On 7 December 2022, the Department for Levelling Up, Housing & Communities released the Secretary of State, Michael Gove’s, highly anticipated called-in Decision Letter on a coal mine located in Whitehaven, West Cumbria. The decision granted planning permission to West Cumbria Mining Ltd under s 77 of the Town and Country Planning Act 1990 for a metallurgical coal mine. The mine will produce “coking” coal, which is used for steel production (as opposed to thermal coal which is used for power generation).  

Dr Michael Imran Kanu

‘The ship has reached the shore’ were the famous words of Ambassador Rena Lee of Singapore, the President of the Intergovernmental Conference (IGC) on an international legally binding instrument under the United Nations Convention on the Law of the Sea (UNCLOS or the Convention) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). 

The Editorial Board are pleased to announce an afternoon seminar and early evening drinks reception to mark the 2nd year anniversary of chambers’ Environmental Law Blog on the 20 April 2023.  

Claire Nevin

The Paris Agreement, which entered into force on 04 November 2016, created a legally binding framework on state parties to substantially reduce global greenhouse gas emissions and limit the global temperature increase to 2 degrees Celsius above pre-industrial levels while pursuing efforts to contain it to 1.5 degrees. 

Horatio Waller

In its Levelling Up and Regeneration Bill, the Government proposes a regime of Environmental Outcome Reports (‘EORs’) to replace the current system of Environmental Impact Assessments (‘EIAs’). 

Keith Oliver

Transition to net zero in the UK and in many other jurisdictions relies heavily upon consumer and investor pressure, combined with Environmental Social Governance (“ESG”) disclosure requirements. 

Stephanie Bruce-Smith

On 13 January 2023, the High Court held that the right to access Dartmoor Commons for ‘open-air recreation’ under the Dartmoor Commons Act 1985 did not include a right to camp there overnight. Many, including the National Parks Authority for Dartmoor (“the DNPA”), had long considered that such a right existed.

Mark O’Brien O’Reilly

English lawyers would be well advised to cast their eyes south of Dover and across the water to the Court of Justice of the European Union (“CJEU”). Although the United Kingdom has left the European Union, the caselaw of the CJEU still has an important role to play in environmental litigation within domestic courts. 

Michael Rhimes

When granting planning permission, can it be assumed that the systems for controlling carbon emissions will be effective?  

This was an issue when a Panel appointed by the Secretary of State granted planning permission to an extension of Bristol Airport (“the Decision”). 

FTB’s Environmental Law Blog now has a dedicated page on LinkedIn – please follow us here. 

We also are delighted to announce that recent tenant Mark O'Brien O'Reilly has accepted an invitation to join the Editorial Board. Flora Curtis has taken over as acting commissioning editor while Jonathan Welch is on parental leave. Their biographies are provided below.

Michael Feeney

On 16 December 2022 DEFRA published the first environmental targets pursuant to the Environment Act 2021 [1].  The Environment Act requires that at least one ‘long-term’ target is set for each of the four priority areas: air, water, biodiversity and resource efficiency and waste reduction [2].  

Robert McCracken KC

Overlooking can be a Nuisance

The Supreme Court has at last delivered its long awaited judgement in Fearn v Tate [2023] UKSC 4. It has overturned the Court of Appeal, and held that overlooking into luxury flats from the neighbouring Blavatnik Building public gallery on the South Bank was a private (amenity) nuisance. 

Esther Drabkin-Reiter

In December 2022, at the second part of the Fifteenth Session of the Conference of the Parties to the United Nations Convention on Biological Diversity (“COP15”), the Kunming-Montreal Global Biodiversity Framework (“the KMGBF”) was adopted. 

Esther Drabkin-Reiter

In December 2022, at the second part of the Fifteenth Session of the Conference of the Parties to the United Nations Convention on Biological Diversity (“COP15”), the Kunming-Montreal Global Biodiversity Framework (“the KMGBF”) was adopted.

Stephanie Bruce-Smith

The Torres Strait Islands, a group of islands situated between Australia and New Guinea, are home to one of the most vulnerable populations to the impact of climate change.

Mark O’Brien O’Reilly

The COP27 Summit in Sharm el-Sheikh, which took place in the midst of conflict in Ukraine and an energy crisis, concluded in late November 2022 with a number of notable developments, despite the fact that the State parties failed to commit to phasing out fossil fuels. 

Charles Forrest

Conservation Covenants under Part 7 of the Environment Act 2021 (“EA 2021”) came into force on 30 September 2022. 

Jeremy Phillips KC, Horatio Waller

As a means of resolving environmental disputes, mediation can be shown to offer many really significant benefits to regulators, be they local authorities, the Environment Agency or central Government. 

Mark O’Brien O’Reilly

In my blogpost dated 23 September 2022, I analysed the judgment in Harris v The Environment Agency [2022] EWHC 2264 (Admin) of 6 September 2022, which illustrated the application of the EU Habitats Directive, and of European law more widely, post-Brexit.

Robert McCracken KC, Ned Westaway

The Retained EU Law (Revocation and Reform) Bill that was introduced into Parliament on 22 September 2022 goes to Committee stage in the House of Commons next week.  The Bill is of enormous significance and will require careful scrutiny by Parliament.

Claire Nevin

In April 2022, the Irish Citizens’ Assembly on Biodiversity Loss (“the Assembly”) held its inaugural meeting in Dublin Castle. Since then, the Assembly, which is made up of 99 randomly-selected members of the public and an independent Chairperson, has been examining how the state can improve its response to biodiversity loss. On completion of its work in December 2022, the Assembly will present a report and recommendations to the Houses of the Oireachtas (the Irish Parliament).

Esther Drabkin-Reiter

On 18 October 2022, a reserved judgment was handed down by Mr Justice Bourne refusing permission to apply for judicial review in a claim issued by Wild Justice against the Water Services Regulation Authority (“Ofwat”), following an oral permission hearing on 27 September 2022.

Brendan Brett

The discharge of considerable quantities of untreated sewage into rivers and coastal waters, has, understandably, caused outrage in recent months in England and Wales.

Anurag Deb

On 6 June 2022, the Climate Change Bill (No. 2), passed by the Northern Ireland Assembly in March 2022, was granted royal assent. Northern Ireland had finally enacted its own climate change statute after discussing the need for such a statute for over a decade.

Mark O’Brien O’Reilly

Johnson J has handed down judgment in Harris v The Environment Agency [2022] EWHC 2264 (Admin). The judgment illustrates the application of the EU Habitats Directive, and of European law more widely, post-Brexit. 

Michael Feeney

After one of the driest summers on record, 11 of the 14 Environment Agency (“EA”) areas in England are now in drought. As the EA has explained on its website, this change in status ‘does not automatically trigger actions itself, but moving to drought status means that the Environment Agency and water companies will step up their actions to manage the impacts and press ahead with implementing the stages of their pre-agreed drought plans.’

Jonathan Welch

The magnitude of the issue of climate change is reflected in its ever-increasing invocation and appearance in litigation across diverse jurisdictions, and its frequent reference in legislation and administrative decisions as a material consideration. 

Dr Ciara Brennan

There is growing interest in the concept of ‘rights of nature’ and the legal possibilities it offers as a means of protecting the natural world when regulatory efforts fail. In a practical and legal sense, this is centred on the premise that nature has the right to defend itself in a court of law against harms.

Merrow Golden

In what has been described as a “landmark ruling”, the High Court has held that the Net Zero Strategy 2021 (“NZS”) was unlawful due to a failure by the Secretary of State to comply with sections 13 and 14 of the Climate Change Act 2008 (“CCA 2008”).

Michael Feeney

On June 23rd the Office for Environmental Protection (“OEP”) published its first Strategy and Enforcement Policy. 

Jonathan Welch

ESG has become a much mused over acronym in recent years, but what does it mean? In this short post I intend to sketch a few introductory remarks with a focus on why the topic may be of interest to environmental lawyers. What follows is taken from a paper I delivered at the FTB Quarterly Environment Update Seminar in May.

Mark O’Brien O’Reilly

The government, with much fanfare, has published the Levelling-up and Regeneration Bill. The government says that the Bill, which will deliver widespread reforms to the planning system, will result in improved environmental outcomes and stronger protections for the environment in local plans.

FTB’s Environmental Law Blog (ELB) recently celebrated its 1st birthday. We are delighted to announce two new members of the Editorial Board – Dr Ciara Brennan and Flora Curtis, whose biographies are provided below.

Michael Feeney

In March 2022, DEFRA published a consultation paper entitled the Nature Recovery Green Paper: Protected Sites and Species (“the Green Paper”). The aim of the Green Paper is to propose and consult on reforms that are needed to meet the species target that will be introduced under the Environment Act 2021 and the government’s commitment to protect 30% of land and sea by 2030 (30 by 30).

Michael Rhimes

This is a further post on the Environment Act 2021 (“the Act”) dealing with the new provisions on biodiversity net gain (“BNG”), found in Part 6 of the Act, and the ongoing consultation on BNG that is being carried out by the Department for Environment, Food & Rural Affairs (“Defra”). These provisions are not yet in force. This article is therefore forward-looking, and considers what is on the horizon for environmental law.

Richard Honey KC, Mark O’Brien O’Reilly

Local authorities across the UK have made climate emergency declarations in large numbers. These are generally declarations which say that humanity is facing a climate emergency and that urgent action to address climate change and its effects is needed.

Michael Feeney

Case Note: Judgment of the Court of Appeal on 17 January 2022

Jeremy Phillips KC

The legislation relating to statutory nuisance can be a powerful tool to bring recalcitrant operators, or inconsiderate neighbours, into line. It is, however, a field fraught with technical traps for the unwary and, in even the most straightforward case, significant cost.

Ned Westaway

The new Office for Environmental Protection (“OEP”) came into existence in November 2021 (and existed in ‘embryonic’ form for some considerable time before then), but this week is momentous for two reasons: on Monday 24 January 2022, the OEP was given its powers (by virtue of the Environment Act 2021 (Commencement No. 2 and Saving Provision) Regulations 2022) and on Tuesday 25 January – wasting no time – the OEP launched a consultation on its draft strategy and draft enforcement policy.

Michael Rhimes

The Act was billed as “the most ambitious environmental programme of any country on earth” – admittedly in the Conservative Party Manifesto in 2019 (see here, p. 5 of the PDF), where understatements are rare. But the Act as a whole was clearly envisaged as a watershed moment for the protection of the environment in the UK.

Caroline Daly

Case Note: Judgment of the Court of Appeal on 9 November 2021

The Court of Appeal has handed down judgment in an appeal brought by the RSPB and Dr Mark Avery regarding the lawfulness of the grant of a licence by Natural England to “take and disturb” hen harriers for “scientific, research or educational purposes” pursuant to section 16(1)(a) of the Wildlife and Countryside Act 1981. The licence facilitated a scientific trial of hen harrier brood management in the northern English uplands.

Anurag Deb

The Earth’s climate has been changing at an alarming rate, with the IPCC confirming earlier this year the scale of the problem. The 26th UN Climate Change Conference of Parties recently concluded in Glasgow, with a draft text which has proved divisive on the issues of fossil fuels, equity, loss and damage.

Michael Rhimes

COPs are a mixed bunch. Some have lead to significant success. The 2015 COP led to the Paris Agreement, which spells out a large part of the international legal framework to combat climate change. Some have been much less successful. The COP in Copenhagen in 2009 (COP15) all but disintegrated, with one chief negotiator lambasting the resultant agreement as “the lowest level of ambition you can imagine”

Michael Rhimes

The Sixth Report of the Intergovernmental Panel on Climate Change makes for grim reading. It concludes that it is “unequivocal” that human influence has warmed the earth; that “widespread and rapid” changes have occurred; and that this pace of change is unprecedented in the last 2000 years (See Summary for Policy-makers here, August 2021, A.1;

Merrow Golden

Over the past five or so years, there has been what can only be described as a soar in the number of cases being brought around the world relating to climate change.

Morag Ellis KC

Faith groups are taking an interest in COP 26 and the Archbishop of Canterbury, the Pope and the Ecumenical Orthodox Patriarch are all due to attend, with their teams of advisors. These three leaders have recently issued an unprecedented joint statement calling on people “whatever their belief or worldview, to endeavour to listen to the cry of the earth and of people who are poor, examining their behaviour and pledging meaningful sacrifices… 

Esther Drabkin-Reiter

Judgment of Mr Justice Fordham handed down on 16 September 2021. Following an expedited rolled up judicial review hearing, the High Court has issued a declaration in terms that, in order to comply with its legal obligations, the Environment Agency (EA) must:

Mark O’Brien O’Reilly

In March 2021, a joint statement, endorsed by 69 States, was delivered to the UN Human Rights Council calling for the recognition of the right to a healthy environment at the international level.  This was complemented by another joint statement to the Human Rights Council, endorsed by fifteen UN Entities, led by the UN Environment Programme, which argued that the time for recognition of the right is now.

Horatio Waller

Biodiversity is presently a key consideration in the planning system only where development is proposed on or nearby a site that is specifically protected, such as a SSSI. The Environment Bill proposes to make biodiversity an overriding consideration throughout the vast majority of the country which is not subject to site specific protection. 

Robert McCracken KC, Meyric Lewis KC

This post is an abridged version of a longer article first published in the February 2021 issue of the Journal of Planning and Environmental Law (Public Authorities and Environmental Information [2021] 2 JPL 160).

Ned Westaway

The Conservation of Habitats and Species Regulations 2017 (“the Conservation Regulations”) (and the equivalent offshore SI) is “retained EU law” under the EU Withdrawal Act 2018 (“EUWA 2018”) and, more specifically, “EU-derived domestic legislation”.  This post briefly examines what that means, what further changes may be expected and some issues arising.

Richard Honey KC

Mr Justice Holgate handed down judgment on 26 July 2021 in the case of R (Transport Action Network Ltd) v Secretary of State for Transport [2021] EWHC 2095 (Admin). The case was a climate change focussed judicial review of the Government’s second Road Investment Strategy (RIS2) set under s3 of the Infrastructure Act 2015.  Highways England is to develop and construct the road schemes identified in RIS2.  RIS2 covered 45 road schemes rolled forward from RIS1 and five new schemes, including the Lower Thames Crossing.  

Richard Honey KC

Much of the UK’s domestic environmental law is derived from EU law.  This covers strategic environmental assessment, environmental impact assessment and the protection of habitats and species, amongst many other areas.  The domestic regulations covering these areas qualify as retained EU law and now need to be considered and applied in light of the arrangements for dealing with EU exit. 

Professor Pavlos Eleftheriadis

The Queen’s Speech of December 2019, i.e. that of the second Johnson government, announced a new Environment Bill, which would ‘enshrine in law environmental principles and legally-binding targets’. It was notable modification of the earlier statement about the same Bill made in October 2019 in the Queen’s Speech of the first Johnson government, which had stated that: ‘for the first time, environmental principles will be enshrined in law’.

Richard Honey KC

Alexis Norris

The Office for Environmental Protection (“OEP”) is to be a new, independent, statutory body created under the Environment Bill to support environmental protection, improve the natural environment and hold public bodies to account. It is expected that the OEP will begin implementing its non-statutory functions in July.  

Horatio Waller

This is the first of a two-part series on the net biodiversity gain provisions set out in the Environment Bill. They would make it a mandatory condition for most development to achieve a 10% biodiversity net gain in order to proceed.

Anurag Deb

On 10 May 2021, after six hours of plenary debates, the Climate Change Bill (Northern Ireland) 2021 (the Bill) passed its second stage, with 58 votes in favour and 29 against. Introduced on 22 March by Clare Bailey MLA, it remains the only attempt by the Assembly to put Northern Ireland’s climate change policy on a statutory footing.

Charles Forrest

This is Part 2 of our blog posts on Conservation Covenants (“CC”).

Charles Forrest

Background of the Environment Bill 2019-21

The previous version of the bill- the Environment Bill 2019- fell at the dissolution of Parliament for the General Election in December 2019. It was reintroduced in substantially the same form in the current Parliament and is called The Environment Bill 2019-21.

Dr Richard Caddell

Since the mellifluous narration of Sir David Attenborough in Blue Planet II alerted millions of horrified viewers to the shocking ubiquity of plastic pollution in the global oceans, there has been a vociferous popular demand for regulators to tackle the rising tide of marine litter.

Richard Honey KC

Alexis Norris

The Environment Bill is intended to replace some aspects of the EU environmental regulation structure and to set long-term, legally binding environmental targets to build a ‘fairer, greener, more resilient future’.[1].

Professor Áine Ryall

On 31 July 2020, a seven-judge Supreme Court delivered judgment in Friends of the Irish Environment CLG v Government of Ireland [2020] IESC 49.

Esther Drabkin-Reiter, Jonathan Welch, Richard Honey KC, Ned Westaway, Merrow Golden, Conor Fegan