Simon Colvin, partner and national head of the environment team at Weightmans LLP, predicts the key developments, trends and challenges facing the environmental legal sector in 2017.
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What are likely going to be the most important cases in 2017, and why?
Climate change litigation such as Client Earth’s case against the UK government will be ongoing. The High Court has ordered the government to replace its ‘illegal’ air quality plans by July 2017 and to have draft plans in place by April 2017. If the government misses these deadlines, or if the plans are inadequate, further court challenges are likely to follow. We might also see challenges to the government plans to expand Heathrow Airport.
As the global oil price rises and fracking in England becomes more economic, I expect we will see more fracking activity. That will inevitably mean more challenges to the decisions of regulators to grant or refuse the consents required for fracking operations.
The relatively new Sentencing Council Guideline for Environmental Offences will continue to bite. 2016 saw the £1m fine glass ceiling broken on a few occasions. I expect we will start to see the courts getting braver and imposing even more significant fines in 2017.
What are likely to be the most significant legislative and regulatory developments, and why?
I think the most significant developments are likely to be on the policy front and at an EU level.
The government is due to publish its long-awaited Environment Plan 2025. The original publication date was in 2016, but that got pushed back as a result of Brexit. As we leave Europe we will leave behind the extensive framework of environmental policies that exist. The government needs to take urgent steps to fill that void and to provide a sense of direction. It will be interesting to see how far the Environment Plan 2025 goes and what its key areas of focus are.
The government is also due to continue work on its industrial strategy. It will be interesting to see the role that the circular economy plays in the new strategy and the significance attached to environmental considerations. Will these be secondary or will they be at the centre of the new strategy?
At an EU level, the Commission’s work plan for 2017 identifies the circular economy as an area of focus, so I expect to see more developments there.
How is Brexit likely to affect these?
Brexit has the potential to impact all of these areas, both directly and indirectly. If, as appears to currently be the case, we leave the EU and do not join the single market because of the hurdles in relation to the free movement of people, the government will have a significant amount of freedom when it comes to determining the scope and application of any environmental controls. If it chooses to do so, the government will be able to adopt a new approach to the regulation of activities that impact the environment. The likelihood is that the environment will sit too far down the ‘to do list’—and as a result will not get the time and attention it needs to properly develop and evolve.
The fact EU case law will soon no longer be binding will be relevant to climate change litigation.
Brexit will undoubtedly mean uncertainty and that could temporarily delay any new fracking projects.
The Environment Plan 2025 needs to take account of the external controls that will apply to the UK. The likelihood is that the plan will be formed on the basis that EU controls will no longer apply, which is the most likely outcome of the Brexit process. The plan should reveal the extent of the government’s ambitions when we go it alone.
In summary, 2017 looks set to be an interesting year from an environmental legal perspective—with a number of important and challenging developments—in the pipeline.
Interviewed by Tracey Clarkson-Donnelly. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.