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It seems as if people have woken up from a deep slumber. For the past 30 years or more, scientists have been warning about the devastating effects of climate change. Now, in part thanks to 16-year-old Swedish school-girl Greta Thunberg, climate change activism has exploded.
In April 2019, Extinction Rebellion (XR) held several civil disobedience peaceful protests across London and other areas of the UK. Although condemned by many, the actions realised something that, up until now, eminent scientists have struggled to achieve. Climate change and its effects finally dominated the headlines, continuously, for over a week. In addition, MPs have approved a motion to declare an environment and climate emergency.
Many are now asking, “could XR’s protests change the environment law landscape?”
To answer that question, we need to look at where the UK sits at present on environmental laws.
Much of UK environmental law comes from the European Union (EU). The principal environmental regimes are:
• Environmental Permitting Regime (EPR), combining the pollution prevention and control (PPC) regime and waste management licensing and industrial emissions
• Waste (in relation to aspects not dealt with under EPR)
• Contaminated land
• Conservation of nature, wildlife, and habitats.
• Environmental impact assessments (EIAs)
Environmental liability can arise under:
• Criminal law
• Civil law
• Public or administrative law
• Company law
The sanctions for breach of environmental laws are harsh. In July 2014, the Independent Sentencing Council issued guidelines for sentencing in environment cases. The guidelines introduced a 12-step sentencing process for organisations intended to reduce inconsistencies in sentencing and ensure that sentences match the seriousness of the offence, the harm caused, and culpability. It also sought to remove any chance of an organisation profiting from an environmental breach.
Thames Water has been the recipient of some of the biggest fines to be handed down since the sentencing guidelines came into place. In 2017, the company was fined £20 million for pumping 1.9 billion litres of untreated sewage into the River Thames. It was fined a further £2 million after “reckless failure” led to raw sewage flowing into a brook near Milton-under-Wychwood in Oxfordshire in 2015. The pollution led to the death of 150 bullhead fish across a 50-metre stretch.
Company directors also face substantial fines for breaching environmental laws. In late 2017, the director of Atlantic Recycling Ltd was fined £30,000 and given a sentence of 18 months’ imprisonment, suspended for one year. He was also ordered to pay prosecution costs of £20,000. Both the company and its director were found in breach of various sections of the Environmental Permitting Regulations 2010.
When it comes to certain environmental standards and climate change action, Britain is a world leader. For example, the use of coal as an energy source has been drastically cut, and there are plans for it to be phased out completely. And ten years ago, the Climate Change Act was passed, which binds Ministers to cutting carbon emissions by 80% by the year 2050. Also, a Climate Change Committee was formed to advise the government on the most efficient ways to cut emissions. And in an unprecedented move, Mark Carney, and François Villeroy de Galhau, the Governor of the Banque de France, said financial regulators, banks, and insurers around the world had to “raise the bar” to avoid catastrophe.
Writing in the Guardian, they said:
“As financial policymakers and prudential supervisors we cannot ignore the obvious physical risks before our eyes. Climate change is a global problem, which requires global solutions, in which the whole financial sector has a central role to play.”
However, the UK has a long way to go on many fronts when it comes to strengthening environmental laws and policies to truly deal with the challenge humanity is facing. For example:
• although onshore wind farms can provide the cheapest source of green energy, in 2015 the government blocked all new developments after back-bench MPs stated they were ‘unpopular.’
• rail and roads are starved of funding, meaning potholes are not filled (discouraging cycling) and high-speed rail developments are prioritised over local commuter routes
• grants to help low-income families better insulate their homes have been cut as has a government plan for zero-carbon homes
These are bad. But the ugly comes from the very foundations which capitalism is built on. Although it has resulted in millions of people in developing countries rising out of poverty, the focus on GDP growth and company laws which dictate directors are under a legal duty to maximise profit for shareholders means our current capitalist system may need drastic reconfiguration.
But as company laws currently stand, directors are in a no-win situation. And frankly, although there are a few bad apples who deliberately or recklessly cause environmental damage in pursuit of profit, most business owners are committed to acting in an environmentally responsible way. Even if only to preserve their organisation’s reputation. However, company laws effectively demand companies increase profits for shareholders year on year. And it is difficult to see how this can continue on an already straining planet.
Perhaps it is not environment laws that need to change. Maybe to save the planet and allow directors the freedom to put environmental concerns before the demand for growth, it is company laws which need to be overhauled.
Tanveer Qureshi is a Legal 500 barrister, specialising in environment prosecutions, ASA compliance, business to business fraud, health and safety, food standards, civil litigation, and corporate crime. If you require legal representation, please contact directly on 020 3870 3187.