By Richard B Macrory, on 4 December 2013
Environmental prosecutors from all over Europe attended the Hague on 27 and 28 November 2013 at a conference hosted by EUROJUST and the newly formed European Network of Prosecutors for the Environment (ENPE). The meeting brought together for the first time prosecutors specialising in environmental crime from Eurojust and the ENPE as well as representatives from the European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL), Interpol and Europol.
In most European countries, bodies responsible for the prosecution of environmental crime are distinct from the regulatory agencies who have responsibility for licences and inspection and the imposition of administrative penalties - the Environment Agency and Natural England in England and Wales are unusual is that they combines both functions. Professor Richard Macrory, co-director of the Centre for Law and the Environment, gave the key-note speech at the conference and outlined his vision for a more coordinated and integrated system, spanning criminal and administrative responses.
“We now need to think how we can more effectively coordinate criminal and administrative sanctions. There should be a number of principles that should underline any system of sanctions. A core principle is that a sanction should be designed to change the behaviour of the offender – sometimes this needs a criminal punishment, sometimes not. Second, an effective sanctioning system will ensure no financial gains are made by non-compliance. Sometimes this can be achieved by a criminal fine. But again there may be other more imaginative ways of ensuring this. An effective sanctioning system has to be very responsive to a broad range of offenders, and the bodies responsible for enforcement, whether criminal or administrative, need to create and publish an integrated enforcement policy. Such a policy will indicate the range of sanctions available and the circumstances when they are most likely to be applied – this gives important signals to the businesses concerned, and increased public confidence in the overall system.”
Mr Leif Görts, National Member for Sweden and chair of the meeting, commented: “This meeting was broad and ambitious and the first of its kind…… We all agree on the threats, and we also agree on the obvious need to share experience and knowledge; this is exactly why Eurojust bringing together senior environmental prosecutors is so important and highly relevant.”
By Richard B Macrory, on 15 November 2013
In September 2013 the Ministry of Justice published proposals for further reforms to Judicial Review procedures. These include the possible creation of a specialist Land and Planning Chamber within the Upper Tribunal to handle planning JRs, and more controversially ideas for restricting standing, and minimize ‘political’ JRs designed primarily to delay Government decision-maker. Professor Macrory has made a personal submission to the Consultation Document.
Key points in Professor Macrory’s submission which focuses on environmental JRs are:
- The Consultation Paper focuses on planning JRs and acknowledges that many of its proposals cannot apply to Aarhus environmental JRs. Yet many planning JRs will inevitably engage Aarhus.
- Aarhus does not entitled people to bring frivolous or unwarranted claims but the the vision of Aarhus for economical and speedy access to review procedures requires a more radical rethink on how JRs have been traditionally handled.
- There is considerable merit in the proposal of the Upper Tribunal (Lands Chamber) in handling planning JRs. Environmental JRs should also be transferred, starting with those areas of environmental law where statutory appeals to the First Tier Environment Tribunal now lie. The new Chamber should be called the Land, Planning and Environment Chamber.
- Third parties who had participated in environmental regulatory procedures should have a limited right of appeal to the First Tier Environmental Tribunal on the substantive or procedural legality of the decision in question. Providing an appeal in this way would be more consistent with Aarhus aspirations than JR actions and by channeling such challenges through the First Tier Tribunal would help dampen unrealistic and expensive JR claims.
- There is a limited discretion under Aarhus to define standing requirements under national rules for environmental NGOs but it is unlikely that doing so will meet concerns expressed in the Consultation Paper, and it is preferable to rely on judicial discretion.
By Blogger , on 14 November 2013
The UCL Institute for Sustainable Resources (ISR), with the UCL Faculty of Laws and the European Institute, held the first UCL Symposium on the legal and policy issues associated with the European Union Strategy on Raw Materials and Resource Efficiency on 8th November. Chiara Armeni, Research Associate with the Faculty of Laws-Centre for Law and the Environment – and with ISR, was the promoter of the event, which was sponsored by the UCL European Institute Small Grants’ Scheme.
The Symposium attracted more than 90 registered delegates from academia, industry, government and NGOs. It was opportunity to stimulate academic discussion on the challenges of access and sustainable use of raw materials, as well as to identify key legal and policy questions to be developed under the ISR Research Agenda.
Details on the aims and objectives, the Programme, speakers’ biographies and additional materials can be found here.
By Richard B Macrory, on 8 November 2013
In early November LLM students taking environmental law options took part in a walk lead by Rosie Oliver of Dotmakers Tours exploring the role of waste and rubbish in London’s historic development. Rosie is a former Government environmental lawyer, and now works with the UK Environmental Law Association as well as leading themed walks in London, many with an environmental focus. The walk began on the Isle of Dogs and ended on the bank of the Thames by Greenwich where students were able to find oyster shells and tobacco pipes thrown out over four hundred years ago and still resting on the foreshore.
By Richard B Macrory, on 28 October 2013
In September 2013, Professor Macrory was one of the few academic specialists to be invited by the European Commission to take part in their first conference to discuss the Commission’s developing ideas for new legislation on inspections and surveillance. The meeting was held in DG Environment, Brussels. Most of the other participants were representatives of governments or enforcement authorities, including the police, in Member States.
In June 2012 The Environment Council called for improving inspections regimes as a necessary element of effective enforcement, provided this did not impose unnecessary administrative burden. The Commission launched a consultation document on the subject in February of this year.
The Commission’s proposals include greater exploitation of the potential of remote sensing (satellite imagery etc.) as an enforcement tool, an area where the centre, especially through the work of Ray Purdy, is a lead centre of excellence. The underlying principles concerning regulatory sanctions, developed by Professor Macrory, are likely to play in increasingly significant role in the proposals as they develop.
By Richard B Macrory, on 28 October 2013
Sharon Turner has been appointed a Visiting Professor to the Law faculty, and will have a special connection with the Centre for Law and the Environment. Sharon was Professor of Environmental Law at Queens University Belfast, but in June of this year joined ClientEarth to lead their Climate and Energy Programme. As the head of Client Earth’s climate and energy team she leads a group of 13 lawyers located in offices in London, Brussels and Warsaw working on a range of law and policy reform and litigation projects spanning EU and national governance levels. Richard Macrory commented, “We are absolutely delighted that Sharon will be associated with us through this appointment. For many years she has been one of the leading UK environmental legal academics but is now bringing all her expertise and experience to a significant new role. “
By Richard B Macrory, on 17 September 2013
The Centre’s Carbon Capture and Legal Programme has published a new report analysing in depth for the first time environmental and energy legislation relating to enhanced oil recovery operations (EOR) in the United Kingdom using carbon dioxide. In the current depressed emissions trading market combined with a continuing squeeze on public finances, operations that combine enhanced oil recovery with carbon capture and storage (CCS) may proved vital for securing commercial investment in CCS.
The Report examines international conventions, the 2009 EU Directive, and the regulations implementing the Directive within the United Kingdom. It is clear that recent CCS legislation, especially the EU Directive, has not been drafted with the full implications of EOR taken on board, and the Report idenfities a number of signficiant legal issues where EOR operations are combined with long-term CO2 storage.
‘Legal Status of CO2 – Enhanced Oil Recovery’ written by Professor Richard Macrory with Chiara Armeni, Chris Clarke, Sarah Doherty, Eva Van Der Marel, Ben Milligan, and Ray Purdy was commissioned by the University of Edinburgh’s Scottish Carbon Capture and Storage (SCCS) and is available on their web-site.
By Richard B Macrory, on 14 August 2013
The First-tier Tribunal (Environment) was set up in 2010 but only in 2013 has it handled a signficiant work-load. Until 2012 appeals against the designation of Nitrate Vulnerable Zones (NVZs) by the Department of Environment Food and Rural Affairs were heard by a Panel appointed by the Secretary of State. In his 2011 Report, Consistency and Effectiveness – Strengthening the New Tribunal, Professor Macrory, co-director of the Centre, recommended that environmental regulatory appeals, including the designation of NVZs, should in principle be transferred to the new Tribunal, and under regulations made in 2012 (Nitrate Pollution Prevention (Amendment) Regulations 2012), NVZ appeals in England were duly transferred to the new Tribunal. In Wales, appeals are heard by Planning Inspectors whose decisions are binding on government. Designations across England and Wales take place around every 4 years, and last August the Secretary of State proposed the current designations, giving land-owners the right of appeal within 28 days.
Appeals have been heard during 2013, and according the Tribunal, there were 455 appeals in all, with 37.8% (172) allowed, and 12.75% (57) part-allowed. A small number (11) were dealt with by a Consent Order. 31.21% (142) appeals were dismissed, and the remainder were either struck out or withdrawn.
By Joanne Scott, on 9 August 2013
Centre member Professor Joanne Scott is one of the 42 UK-based academics in arts and social sciences elected to the British Academy this year. The announcement of the election can be found here.
By Joanne Scott, on 9 August 2013
Joanne Scott has posted her new article entitled ‘Extraterritoriality and Territorial Extension in EU Law’ on SSRN. The article will be published in the American Journal of Comparative Law in early 2014. This examination of the topic of extraterritoriality was motivated by the decision of the EU to include aviation in its emissions trading scheme.