UCL Centre for Law and Environment

Held at Rotterdam between 14 to 15 May 2013

By Prof. Jan Glazewski
Institute of Marine & Environmental Law
University of Cape Town (visitor to Centre for Law and the Environment)

A year ago (May 2012) the South African cabinet identified Carbon Capture and Storage (CCS) as one of the options for South Africa to reduce its carbon dioxide emissions.  Shortly thereafter I was invited by the Carbon Capture Unit within the Centre for Law and Environment at UCL to lead a project on legal and regulatory aspects of CCS in South Africa (see Jan Glazewski, Andrew Gilder and Ernesta Swanepoel ‘Carbon Capture and Storage: Towards a regulatory and legal regime for South Africa’ 2012). As such I thought it worthwhile while a visitor at the UCL Centre in May 2013 to attend the above symposium which also included a field trip to a near ready carbon capture ready power generation plant in the vicinity.

Although the presentations over the two days were largely of a technical nature I learnt a lot over the three days and believe that the other delegates enjoyed my questions and interventions.  Among the things I learnt, and relevant to South Africa, were:

• the NDL is increasing its reliance on coal fired power stations in their energy mix because of an apparent peak in oil and gas reserves in the North Sea and need for energy security;
• while the general tenor of the conference was fairly pessimistic regarding progress made in implementing CCS projects partly because applications to national and EU funding sources have largely been unsuccessful.  One topical example which was subject to a dedicated session was the lack of any award in response to the first NER 300 call for applications. There  some  light in the landscape in that the EU presenter  seemed confident that the second call for applications will result in some awards being made;
•  a further cause of concern was the low carbon price; the apparent failure of the ETS.  Among alternatives which were raised were Emission Performance Standards which as I see it is a return to the classical ‘command and control’ approach rather than using financial instruments.

On the more optimistic side I was fascinated to learn about alternative uses to which carbon be could be put. A new acronym for me was CCUS (Carbon Capture, Use and Storage). A representative from Lanza Tech made a fascinating presentation on potential uses of carbon for animal feedstock using electrochemical processes. I was duly impressed and Googled this company fantasizing buying shares in it only to learn under FAQ (question 1) that this was not possible as it was a wholly owned private company.

In conclusion I learnt a lot and will approach the South African Centre for Carbon Capture Storage in South Africa to explore the possibility of entering into an agreement with Norway as CCS was recently approved as a CDM project under the Kyoto Protocol.

I wish to record my appreciation to the Centre for Law and Environment at UCL for facilitating this trip.

Professor Jan Glazewski  (‘Jan’) of the Institute of Marine and Environmental Law at the University of Cape Town  is visiting the Centre for Law and Environment at UCL during May 2013. Apart from normal teaching and research activities over the years, Jan was involved in the incorporation of an environmental right in South Africa’s Bill of Rights, served as an advisor to former Minister of Environmental  Affairs Mohammed Valli Moosa,  and has written the  country’s leading textbook on the subject, Environmental Law in South Africa (Lexis Nexis, Durban). More recently Jan served on a reference group to advise Minister Trevor Manuel in his capacity as co-chair of the Global Ocean Commission.

While at the Centre, Jan will be working on a variety of issues including a regulatory regime for Carbon capture and storage in South Africa,  a case study of enforcement of illegal fishing activities in South African waters, entailing not only South African fishery law but also the US Lacey Act which provides for extra-territorial application of US laws to environmental offences committed abroad. He intends also to learn about teaching climate change law and has an interest in learning about blue carbon.

The 2013 edition of The International Comparative Legal Guide to:Environment & Climate Change Law (published by Global Legal Group Ltd, London www.iclg.co.uk) carries an analysis by Professor Richard Macrory which links recent case-law of the Court of Justice of the European Union concerning the failure of a Member State to have an effective enforcement system with the developments in environmental sanctions in England and Wales.

ENV13_Chapter-3_UCL-1

Helle Tegner Anker has joined the UCL Centre for Law and the Environment as affiliate academic from March until December 2013. Helle is professor of environmental law at Copenhagen University, Denmark, and co-ordinator of the Nordic Environmental Law, Governance and Science Network (NELN+).

During her stay she will be working on a project on the transposition and implementation of EU environmental law. The project will focus on overall trends and characteristics in EU environmental legislation and the implications for national legislation, analyzing in particular the UK experiences. The project is related to work commissioned by the Danish Ministry for the Environment. Helle’s research interests cover a broad range of environmental law topics, including access to justice, EIA, land use planning, nature protection, water quality, GMO’s, bioenergy and wind energy.  She is currently a member of the Danish Government Committee on Nature & Agriculture. For contact or further information: h.anker@ucl.ac.uk or hta@foi.ku.dk.

On Friday 15^th March, the 7^th Annual Public Interest Environmental Law (PIEL) UK Conference was held at the Institute of Advanced Legal Studies in Russell Square. PIEL UK comprises a committee made up entirely of students from universities around the UK. This year, students from a wide range of universities took part including UCL, SOAS, City Law School, BPP, Southampton and Sussex took part.

• Key note address by Professor Surya Subedi, University of Leeds

The subject of this year’s conference centred on the highly topical and emotive issue of land grabbing, and was titled ‘Development or Land Grabbing? Legal Challenges of the Global Land Rush.’ Speakers included some of the leading players in the fields of development, foreign direct investment, land grabbing and agrarian justice, providing diverse perspectives on how to approach the regulation of land acquisition going forward. There were also breakout workshops in the afternoon delivered on some more specific issues, such as REDD+ in the context of land grabs, the role of indigenous knowledge, and the inter-connectedness of global trade.

This year’s committee aimed to make the conference as sustainable as practically possible. All food was organic and locally made, with leftovers donated to a local homeless shelter; all waste was recycled; the conference was largely paper free with guests encouraged not to print tickets and programs not handed out. The whole event was also broadcast live on the Internet and a recording of all sessions can now be found on YouTube.

Sponsors for this year’s conference were: University College London, City Law School, London School of Economics, Institute of Advanced Legal Studies, Queen Mary University and Harrison Grant Solicitors.

Tom Cripps

Sustainability Officer/Committee Member

PIEL UK 2013

On 19th February, City law firm Freshfields Bruckhaus Deringer organized  a supper for UCL LLM students studying environmental and energy courses.  The event was hosted by partners Andrew Austin and Paul Bowden, with short presentations from a number of younger environmental  lawyers on what life in a city environmental law practice was like.  Stephen Tromans QC, one of the UK’s leading environmental law barristers, gave a fascinating presentation tracing the main developments in UK environmental law from the time he was a student to his current position.

The First-tier (Environment) Tribunal was set up in 2010 to hear appeals against civil sanctions imposed by environment regulators, and in line with the recommendations in Professor Macrory’s Cabinet Office Sanctions Report which led to Part III of  the Regulatory Enforcement and Sanctions Act 2088.  No appeals against civil sanctions have yet been heard by the Tribunal.  In 2011 in a report Consistency and Effectiveness – Strengthening the New Environment Tribunal commissioned by the then President of Tribunals, Lord Carnwath, Professor Macrory recommended that a wide range of administrative appeals under environmental legislation, currently scattered amongst many different bodies, should be transferred to the new Tribunal.  The Government accepted the general argument in Professor Macrory’s report, and the process of transfer is beginning to happen. The  Tribunal has been gaining new powers over 2012 , the latest being  appeals concerning greenhouse emission trading which were transferred on January Ist 2013.  In February 2013 the Department of Environment Food and Rural Affairs launched a consultation document,  proposing, inter alia, that appeals  under Environmental Permitting should be transferred from the Planning Inspectorate to the Tribunal. The Tribunal heard its first appeal in 2012. This concerned  a remediation notice under the Marine and Coastal Access Act 2009 and  a short report by the barristers involved is available on 39 Essex Street Chambers web-site.

Richard Macrory, Director of the UCL Carbon Capture Legal Programme, was invited to speak at the 7th Annual Platts European Carbon Capture and Storage Conference held in London 31 January and 1st February. The Annual Platts Conference is one of the major CCS events of the year.  Professor Macrory took part in the Panel Discussion ‘Transposing the CCS Directive – what we have learnt and why member state support has waned?’  which was moderated by Henry Edwardes-Evans, managing Editor of Power in Europe.  Macrory reported that most Member States had still not formally transposed the 2009 EU Directive despite a deadline of 25 June 2011.  The European Commission has started formal infringement proceedings against those Member States who have yet to communicate texts of national law.

Following the conference on regulatory sanctions held at UCL last November,  the UK Environmental Law Association has written to Michael Fallon,  Minister of State at the Dept of Business, Innovation and Skills expressing concern at aspects of the Government’s new policy on regulatory sanctions announced on the day of the conference.

The Government has said that in future the core civil sanction penalties will be generally applicable only to companies with 250 employees or more -  Oliver Letwin, Minister of State at the Cabinet office, explained at the conference that he felt smaller companies could be unfairly pressurized by regulators using the new powers and would not have the legal resources to exercise their rights of appeal.

In the UKELA letter, Richard Kimblin, barrister, and convenor of UKELA’s Litigation Working Party, argues  that the new policy will significantly restrict the scope for civil sanctions to be used to deal with environmental offending in future and risks creating a complicated, two-tier system for enforcement. Further, Mr Letwin’s comments at the conference about the underlying reasoning indicated to us that the policy might be based on some misconceptions about the way the present civil sanctions system works.

UKELA Letter to Michael Fallon, 20 December