ENVIRONMENTAL LAW - PUBLICATIONS AND RESEARCH

Environmental Law in the UK

Books

Environmental Offences: Remedying Interpretive Uncertainty (Hart Publishing)

This book analyses the interpretation of environmental offences contained in the waste, contaminated land, and habitats’ protection regimes. It concludes that the current purposive approach to interpretation has produced an unacceptable degree of uncertainty. Such uncertainty threatens compliance with rule of law values, inhibits predictability, and therefore produces a scenario which is unacceptable to the wider legal and business community.

The author proposes that a primarily linguistic approach to interpretation of the relevant rules should be adopted. In so-doing, the book analyses the appropriate judicial role in an area of high levels of scientific and administrative complexity. The book provides a framework for interpretation of these offences. The key elements that ought to be included in this framework – the language of the provision, the harm tackled as drafted, regulatory context, explanatory notes and preamble, and finally, purpose in a broader sense - are considered in this book. Through this framework, a solution to the certainty problem is provided.

This work is reviewed by Professor Liz Fisher at (2016) 132 Law Quarterly Review 343.

Articles

“Localism and Environmental Law: Uneasy Bedfellows?” [2014] Journal of Planning and Environmental Law 176

This article argues that the levels of scientific uncertainty and associated value judgments make it very difficult to draft regulation which effectively delegates environmental decision-making without undermining environmental protection. It shows that the two aims of the red tape challenge – to cut “bureaucratic barriers” preventing development and innovation by focusing on local needs, and to do so without changing the legal position, are therefore incompatible in the context of environmental regulation.

Conference Papers

“The Role of the Judiciary in Environmental Decision-Making” Cambridge Centre for Public Law, Cambridge, November 2014.

Examination of the judicial approach to questions of interpretation in environmental regulation reveals the complexity of judicial review in a context of scientific uncertainty. In particular, the distinction between questions of fact and law influences the balance of power between regulator and courts. This paper will argue that it appears that the judiciary has abandoned responsibility relating to interpretation of environmental law, and this poses significant problems for the operation of judicial review. See also on going research information.

Contaminated Land

Book Chapters

“Remediation of Contaminated Land: the Polluter Pays Principle and Stewardship” in Towards a Jurisprudence of Implementation (eds Martin, Bigdela, Daya-Winterbottom, DuPlessis, & Kennedy, Edward Elgar)

The two contaminated land liability regimes in force in the UK embody the polluter pays principle in differing fashions. The Environmental Liability Directive sees the polluter pays principle as an exclusionary principle of liability: the polluter should pay, and no one else. The Environmental Protection Act 1990 interprets the polluter pays principle as just one of the possible justifications for liability to clean up land. This paper argues that the latter interpretation is to be preferred. Not only does this better embody the justice inherent in the polluter pays principle, but it also better recognises the distinct nature of principles in law. This paper uses these two regimes as a vehicle to explore the meaning of the polluter pays principle as a principle of liability.

Articles

“The Contaminated Land Regime- New Guidance, and a New Philosophy?” (2012) 14 Environmental Law Review 267

This article examines the new contaminated land guidance for England published in April 2012, and the underlying tensions apparent in the philosophy behind the changes made to the previous guidance contained in Defra Circular 01/2006. It looks, in particular, at the approach that the new document takes in relation to scientific uncertainty and risk management, as well as considering the ‘new’ presumption against a determination of contamination, the reliance on the precautionary principle, and the treatment of background contamination. It also examines the conflict apparent in the document between local decision-making and nationally mandated goals and processes. In attempting to ensure that regulatory intervention has a net benefit, the guidance both allows local flexibility and heavily prescribes that flexibility. The resulting document, it is suggested, is a compromise and one full of tensions.

“Interpreting the Contaminated Land Regime: Should the “Polluter” Pay?” (2012) 14 Environmental Law Review 98

This article argues that part of the reason for a lack of action under the Environmental Protection Act 1990 in relation to remediation of contaminated land is that enforcing authorities cannot afford to clean up land at a faster rate. Yet they are reluctant to recover their costs from Class B persons. There is evidence that local authorities believe that ‘innocent’ homeowners ought not to face the cost of remediation. This is, at least in part, because of a focus on the ‘polluter pays’ principle. There seems to be a belief that, as they are not polluters, homeowners should not have to pay. Unfortunately this conclusion does not follow, leading to a misinterpretation of the relevant statutory provisions.

"The Polluter Pays Principle and the Remediation of Land" (2016) 8 International Journal of Law in the Built Environment 2

This paper makes a comparative study of European Union regimes concerning contaminated land. The paper examines that law which exists in Member States and operates in parallel with provisions designed to implement the Environmental Liability Directive. It argues that there are multiple interpretations of the polluter pays principle in operation across Europe and that this poses problems for harmonisation and for owners and occupiers of contaminated land.

Case Notes

“Causing Contamination: R (Crest Nicholson Residential Limited) v Secretary of State for the Environment” 140 Scottish Planning and Environmental Law Journal 98 (as Lochery)

This case note discusses the decision in Crest Nicholson. The case holds that allowing contaminants to wash further into the soil by leaving land uncovered constitutes “causing” for the purposes of the contaminated land provisions. The fine line between cause and permit is highlighted by this case. If indeed contamination can be caused by an omission, what room is there for knowingly permitting the contamination?

Conference Papers

“Remediation of Contaminated Land- the Polluter Pays Principle and Stewardship” 2013 IUCN Academy of Environmental Law Annual Colloquium- University of Waikato, Hamilton NZ,  June 2013. 

This paper was presented to the IUCN Academy of Environmental Law in 2013. It is now to be included in Towards a Jurisprudence of Implementation. See above for more information.

Waste

Case Notes

“The Meaning of “Deposit”: Thames Water v Bromley Magistrates’ Court” (2014) 26 Journal of Environmental Law 1

This case note evaluates the Administrative Court judgment in R. (on the application of Thames Water Utilities Ltd) v Bromley Magistrates’ Court on whether the unintended escape of sewage constituted a “deposit” of controlled waste within the meaning of the Environmental Protection Act 1990 s.33(1)(a). It argues that the treatment of the definition of “deposit” as a question of fact not law, and the application of a purposive approach to the interpretation of the Act, give rise to significant levels of uncertainty.

Habitats Protection

Articles

“Allocation of decision-making power under the Habitats Directive” Journal of Environmental Law (currently available through advance access)

This article argues that the provisions in the Habitats Directive relating to protection of sites establish a triumvirate of decision-makers: administrative authority, scientific advisor and judiciary. It examines the relationship between these decision-makers as developed in recent case law, both at a European Union (EU) and national level. It argues that reference to the goal of environmental protection obscures the allocation of power among these actors, and that to truly understand the resulting system, we must acknowledge the differing norms which motivate each of these actors. In particular, it argues that we must consider the judiciary as an actor within the decision-making process, and should examine the role of the principles of judicial review and EU law in shaping this. It highlights that there are currently conflicts within the process, and that the principles of judicial review cannot provide a successful mechanism to manage these conflicts without an explicit consideration of the values ‘hidden’ therein

Climate Change and International Environmental Law

Articles

Forthcoming, "Responsibility and Liability for Climate Loss and Damage after Paris" Climate Policy

This article considers the specific approach of the Paris Agreement to loss and damage issues. It considers, briefly, the history of loss and damage provisions to provide some context to the Paris outcomes. It then assesses two aspects of the policy response required in the face of such unusual legal structures: firstly, it argues that there is a need to develop a response to the legal ambiguity, i.e. the relevance of the distinction between responsibility and liability, to which these provisions give rise. It argues that this response must be clear and workable such that the ambiguity does not represent an excuse for inaction. Secondly, it is argued that awareness of the challenges of assigning legal responsibility for loss and damage is critical to designing policy which is sensitive both to the outcomes of Paris, and to the difficulties in allocation of ‘differentiated responsibility’.