UCL Centre for Law and Environment

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

Ray Purdy (Centre for Law and the Environment) and Olivia Woolley (formerly UCL Centre for Law and the Environment, now University of Groningen) were commissioned to do a short study for the Countryside Council of Wales looking at whether a proposed power station at Milford Haven was in compliance with a number of EU environmental laws. A key part of their analysis was on the cooling system used in the plant, its impacts and whether this was BAT. The European Commission have now acted following a complaint and has sent a formal notice of infringement to the UK Government in respect to this new £1bn Pembroke power station at Milford Haven. It is the first case of its kind against a power plant in Britain. The 18 violations listed in the infringement notice include concerns on assessing environmental impacts, protecting habitats, the use of nitrates and IPPC.

For further details see media stories from the BBC, ITV and Sky, 10 & 11 December 2012.

On December 12 2012 the Government launched its Triennial Review of the two key  environmental national regulators in England and Wales, the Environment Agency and Natural England.    Reviews of government agencies are carried out regularly by Government to test both the continued need for the body concerned and the effectiveness of their governance arrangements, but this is the first time there has been a combined review of both environmental bodies.

The actual review is carried out by the sponsoring department, Department of Environment, Food and Rural Affairs but the Secretary of State has appointed a six person independent Challenge Group, under the chair of Dame Deidre Hutton, chair of the Civil Aviation Authority, to provide robust challenges  to the assumptions and conclusions of the Review.  The Secretary of State has appointed Professor Richard Macrory, formerly a Board Member of the Environment Agency, to be a member of the Challenge Group.

Ray Purdy (Centre for Law and the Environment) and Denise Leung (formerly Centre for Law and the Environment, UCL Laws – now World Resources Institute) are editors of a new book released in December 2012. The 498 page volume entitled Evidence from Earth Observation Satellites: Emerging Legal Issues is published by Martinus Nijhoff / Brill (Leiden).

 Satellite technologies are rapidly improving, offering increased opportunities for monitoring laws, and using images as evidence in court. Evidence from Earth Observation Satellites analyses whether data from satellite technologies can be a legally reliable, effective evidential tool in contemporary legal systems. This unique interdisciplinary volume brings together leading experts to consider many emerging issues surrounding the use of these technologies in legal strategies. Issues examined include the evidential opportunities arising from technological developments, existing regulatory applications and operational experiences at national and international level, and admissibility in courts and tools for ensuring the integrity of evidence. It also examines privacy impacts under existing legislation and provides a new conceptual framework for debating the acceptability of such surveillance methods.

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For the last five years, the UCL Carbon Capture Legal Programme has developed and hosted a highly successful legal resources site, designed to provide accessible and objective information on developments in CCS law and policy around the world. See here for an overview of the Programme.

We are pleased to announced that from December Ist 2012 the Global Carbon Capture Storage Institute will be managing the Resources site, initially using material from UCL.

Professor Richard Macrory, director of the UCL CCLP commented,  “ We know that many lawyers and non-lawyers within the carbon capture community have found the UCL Legal Resources site an invaluable source of accessible and impartial analysis over the past few years.  I am absolutely delighted that  this initiative of the GCCSI means  the Resource will now continue to be available  and develop during a critical period in the development of CCS law and policy.”

The new site can be found at http://www.globalccsinstitute.com/networks/cclp

The Centre for Law and the Environment together with the UK Environmental Law Association held a one day conference on November 9th 2012.  It brought together some of the leading players in the development of regulatory sanctions with a special focus on the environmental law where the Environment Agency and others are experimenting with new approaches provided by Part III Regulatory Enforcement and Sanctions Act 2008 and based on proposals of Professor Macrory.

On the day of the conference the Government announced its new policy in relation to Orders granting new sanctioning powers to regulators.  Essentially all the new sanctions will continue to be available but civil financial penalties will be restricted to larger companies.

Ten things you should know about environmental enforcement and sanctions is a detailed account of the day written by Rosie Oliver, barrister and  research officer for the UK Environmental Law Association is is reproduced below with permission of UKELA.

On 7 November 2012 the UCL Centre for Law and the Environment  and   the KCL Dickson Poon School of Law hosted a symposium at UCL  which saw a gathering of environmental law research students for a full day of presentation, debate and discussion.

The event, co-organised by two PhD students, Emily Barritt (KCL) and Carrie Bradshaw (UCL), brought together over sixty participants, comprising postgraduate students and academics from institutions across Europe.  The Symposium provided both a much-needed platform for student speakers, as well as an opportunity for research students to meet in person, share their research and collectively develop a lively research community on a topic of such contemporary relevance and import – environmental law and governance.

In an opening address, UCL Professor of Environment Law Richard Macrory  praised the potential of such events to “provide key opportunities for the development of innovative approaches and methodologies across both research and teaching.”

Comprised of seven thematic sessions, the topics covered a truly diverse range of topics: from socio-legal and cultural perspectives on environmental law to economic analysis; emerging and interdisciplinary environmental methodologies; environmental adjudication by the ICJ and in the WTO; as well as sessions on two important environmental regulatory techniques – public participation and emissions trading.

Sessions allowed students to present for 15 minutes, followed by lively and challenging debate chaired by a number of expert academics: Professor Maria Lee (UCL), Dr Frederico Ortino (KCL), Dr Liz Fisher (University of Oxford), Professor Philippe Sands (UCL), Dr Eloise Scotford (KCL), Dr Rachael Walsh (Trinity College Dublin) and Professor Catherine Redgwell (UCL).

Summing up the event, co-organiser Carrie Bradshaw commented:

“The richness and variety of approaches adopted by the speakers exemplifies the way research students are ably grappling with the methodological challenges facing environmental law scholars today. The presentations were truly interdisciplinary, and a key theme which emerged from the day was the importance of identifying not only the research questions we ask, but the research questions which we don’t ask. The symposium has been a testimony to the high quality of research being carried out by early career academics at a range of institutions across Europe.”

The event was generously funded by UCL Centre for Law and the Environment and the UCL Graduate School. The reception was kindly sponsored by Francis Taylor Building

For further information

The EU Case Studies Project

Background

In June 2009, the European Union adopted its ‘Climate and Energy Package’, which contains a series of measures to drive Member States’ legal and policy strategies to achieve the EU’s emissions reduction targets. Directive 31/2009/EC on the geological storage of carbon dioxide (‘CCS Directive’) was adopted as an element of this Package and represents one of the first CCS-dedicated legal frameworks in the world. The Directive requires all EU Member States to adopt domestic measures to implement its provisions within national law (‘transposition’) by 25 June 2011. The European Commission is responsible for monitoring its correct implementation into Member States’ national law.

The Project

The Carbon Capture Legal Programme launched the ‘EU Case Studies Project’ in January 2011. The project analyses the implementation process of the CCS Directive in selected European jurisdictions-the United Kingdom, Germany, Poland, Romania, Spain, and Norway. Each jurisdiction, for different reasons, provides an example of distinct approaches to the transposition and to CCS in general.

The objective of the Project is to identify some of the more subtle nuances in different legal cultures and to understand the rationale for national decisions in specific aspects of the implementation of the Directive within national legal regimes. In particular, the focus is on those areas where the Directive leaves room for Member States’ discretion or is ambiguous or silent. In conjunction with the more detailed provisions and legal choices, the Project also aims to highlight the national policy and political context within which the legal and regulatory framework for CCS has emerged. The studies are deliberately designed to move beyond formal transposition measures to reveal more of the underlying dynamics and tensions involved in national implementation. Such elements are often crucial in driving domestic legal developments. The way in which EU Directives are implemented often reflect distinct legal and administrative traditions, and the case studies seek to present these in order to provide better insights on the development of CCS regulation.

The result of the project is a series of reports from the six jurisdictions based on key legal and policy questions and on a critical reading of the CCS Directive. The CCLP is coordinating the overall research and has carried out the UK case study. Independent experts were commissioned to carry out research in Germany, Poland, Romania, Spain, and Norway. The reports were published in November 2011.

	CCLP EU Case Studies UK (2011) Author: Chiara Armeni
	CCLP EU Case Studies Germany (2011) Author: Ludwig Krämer
	CCLP EU Case Studies Spain (2011) Author: Ludwig Krämer
	CCLP EU Case Studies Romania (2011) Author: Mónika Józon
	CCLP EU Case Studies Norway (2011) Authors: Hans Christian Bugge and André Lamark Ueland

Professor Maria Lee is working on the relationship between tort and regulation. Environmental protection is a public interest dominated by a complex and more or less comprehensive system of state and supranational regulation. But this is also the realm of private law, since individual rights or interests (eg property, physical integrity, amenity) may be affected by the regulation itself or by a regulated activity. What happens when these areas of law meet is unclear, particularly how the regulatory decision should feed into the determination and protection of rights and interests in private law.

Topical examples with the potential for private and public interests and law to meet include windfarms and airports (as well as many more mundane cases), where regulatory decisions about location and operation are taken in what the regulator or government has determined to be the public interest. Individuals who find their health, amenity or property adversely affected may turn to the private law of tort for protection. Regulatory norms and processes at their best strike a reasoned balance between various, sometimes conflicting, public or collective interests, and at their best will also have considered the impact of desirable activities on private rights and interests. The operation of private law may disrupt these careful regulatory arrangements; but without private law, individual rights and interests may be inadequately protected