Stephanie Metzger opened the discussion by giving an overview of the issues with Per- and poly-fluoroalkyl substances (“PFAS”), or so-called “forever chemicals”. She explained that PFAS are a group of chemicals, of which there are over 10,000, that are chemically very stable. This means that they do not break down easily once in the environment, hence the name “forever chemicals”. As well as being long-lasting, some PFAS are also toxic. However, as there has not historically been adequate testing, record keeping and regulation, it is not known which PFAS are toxic nor how many there are. This problem is confounded by the difficulty in detecting and remedying the effects of their toxicity. A more detailed explanation of the issues with PFAS can be found on this blog post by Claire Nevin.
After this brief overview of the background on PFAS, Stephanie Metzger set out some of the difficulties with regulating PFAS. In particular, she highlighted the difficulty with identifying the many uses of PFAS and keeping track of their use in supply chains. This prompted an engaging discussion with the audience about why the uses of PFAS are not always known. Stephanie Metzger explained that there has been a historic record of manufacturers of chemicals passing inadequate or limited information down the supply chain to end-users.
After this insightful conversation led by Stephanie Metzger, James Pereira KC took over and led a discussion on how the law of nuisance might be receptive to claims arising out of chemical pollution. The over-arching difficulty that James Pereira KC identified was that nuisance law has developed as a common law way to deal with environmental issues. However, the concerns surrounding PFAS and chemical pollution are as much about their health consequences as their environmental impacts.
Next, James Pereira KC discussed what could be learnt from Manchester Ship Canal Company Ltd v United Utilities Water Ltd (No. 2) (“Manchester Ship Canal case”) [2024] UKSC 22 about the scope of nuisance law to accommodate actions concerning chemical pollution. FTB member Armin Solimani has written a helpful overview of this case on the FTB environmental law blog which can be found here.
James Pereira KC identified two key points from the Manchester Ship Canal case that were relevant in the chemical context. First, in paragraph 50(1) of the judgment, the UKSC identified that “[a]t common law the pollution of a watercourse is an actionable nuisance, and may also constitute a trespass”. James Pereira KC noted that this nugget is helpful because it sows the seeds for a common law pollution action. Second, James Pereira KC noted the UKSC’s emphasis that common law nuisance is concerned with property rights and not personal injury. The effect of this is that nuisance will only be helpful in combatting chemical pollution if it affects the use and enjoyment of land, not where the harm that one is seeking damages for is personal injury.
In addition to common law nuisance, James Pereira KC identified the potential for a claim under statutory nuisance (s. 79 Environmental Protection Act 1990). He explained that under statute, actions can be taken under two bases: either by a public authority with an abatement notice (s. 80 Environmental Protection Act 1990), or by an individual complaining to the magistrates’ court (s. 82 Environmental Protection Act 1990). Whilst harm to health is within the scope of statutory nuisance, James Pereira KC took the view that statutory nuisance is unlikely to provide a successful avenue for bringing a claim for chemical pollution.
Following on from James Pereira KC, Claire Nevin led a discussion on the current regulatory framework of PFAS with a focus on water. She made three main points in this respect.
First, drawing on Stephanie Metzger’s discussion earlier in the event, Claire Nevin explained that the many disparate uses of PFAS means that there is not a single regulator of PFAS, rather there is a collection of regulators each of whom have a role to play in managing PFAS. Regarding water, these include Ofwat, the Environment Agency, and the Drinking Water Inspectorate.
Second, Claire Nevin identified some of the recent and potentially imminent changes on the horizon regarding the regulation of PFAS in water. The first of these was the Drinking Water Inspectorate’s new guidance issued in August 2024. This guidance adopts a precautionary approach to the use of PFAS in water. This led to a discussion with the audience on how the precautionary approach has been used in different regulatory regimes. For instance, Claire Nevin explained that under the REACH regulation, some PFAS require permission to be used.
The second change to the regulatory regime concerns the lack of statutory limits on PFAS in drinking water. There are ongoing attempts to address this gap: a private member’s bill requiring the Chief Inspector of Drinking Water to issue guidance to water companies on PFAS in drinking water is due to have its second reading on the 24 January 2025. Claire Nevin noted that the UK’s lack of regulation on this issue is notable as both the EU and US have already set limits on certain PFAS. For a more detailed exploration of the regulatory landscape of PFAS, see Claire Nevin’s in-depth blog here.
Third, Claire Nevin identified that the High Court has recently dismissed two claims alleging failures by the Environment Agency to adequately regulate: R (River Action) v Environment Agency [2024] EWHC 1279 (Admin) and R (oao Fighting Dirty Limited) v Environment Agency and Secretary of State for Environment, Food and Rural Affairs [2024] EWHC 2029 (Admin). In the first of these cases, the NGO River Action had challenged the Environment Agency’s approach to enforcing the Farming Rules for Water. In the second of these cases, the NGO Fighting Dirty had challenged the removal of the target date to implement the sludge strategy which required the testing of sludge for forever chemicals before it was spread on land. The case was dismissed on the basis that the Environment Agency had acted within the reasonable range of actions open to it. Both cases are interesting for their approach to reviewing how the Environment Agency fulfils its regulatory duties. For a more in depth discussion of the Fighting Dirty case, see this blog by Richard Honey KC here.
The final speaker, Charles Streeten, focused his discussion on the practical realities of litigation and what to bear in mind as a claimant.
First, Charles Streeten identified the importance of choosing the correct procedure to bring a claim, whether this be choosing between a civil or criminal action, or Part 7 or Part 8 procedure in civil actions.
Second, he highlighted the importance of limitation periods and how failure to stay on top of the relevant limitation period could be devastating for a claim. For continuing nuisance claims, Charles Streeten identified that claimants need to be careful about distinguishing between the defendant’s activities which may give rise to a continuing nuisance, and the continuing effects of those activities. Thus, in the recent UKSC decision in Jalla and another v Shell International Trading [2023] UKSC 16, it was unanimously held that an oil spill which had not been cleared up was not a continuing nuisance as the oil ceased to leak into the ocean within 6 hours of the initial discharge.
Third, Charles Streeten discussed the likely defences and remedies to public and private law actions. In public law, Charles Streeten suggested that the discretionary nature of the remedy was likely to weigh against claimants. In relation to private law, he discussed the UKSC judgment of Coventry v Lawrence [2014] UKSC 13 which indicated the potential to have an easement to pollute after 20 years.
Emma Rowland is a pupil at Francis Taylor Building.
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