Air Quality NOx: UK Supreme Court Decision

On 29th April, the UK Supreme Court handed down its judgement in the ClientEarth v DEFRA (UK Government) case. I posted about this case December last.

These proceedings arose out of the admitted and continuing failure by the UK since 2010 to secure compliance in certain zones with the limits for nitrogen dioxide levels set out by European law, under Directive 2008/50/EC. The Supreme Court in its judgement of 1st May 2013 had declared the UK to be in breach of article 13 (NOx limit values) and had referred certain questions concerning articles 13, 22 and 23 of the Directive to the Court of Justice of the European Union (CJEU). The CJEU had answered those questions in a judgement dated 14 November 2014 (Case C-404/13). At the same time, the European Court had ruled the UK Government must have a plan to achieve the air quality limits ‘as soon as possible’. My post about this is also in the December archive.

In its judgement of 29th April 2015, the UK Supreme Court unanimously orders that the government must submit new air quality plans to the European Commission no later than 31 December 2015. 

Link to Supreme Court Decision press summary.

Link to Supreme Court Decision.

In 2011 the UK Government said a number of areas, including London, would be unable to comply by 2015 (the deadline in the EU Directive) and instead EU law allowed it to ‘comply as soon as possible’. Indeed, air quality plans would continue the breach at least until 2030. This approach is now struck down by the Supreme Court.

The country goes to the polls on Thursday May 7 to elect a new government.

Some reaction from existing politicians and campaigners is set out in the Air Quality News article here.

EHS in International Trade Agreements

Law suits to find actionable EHS rights in international trade law may be looking to:

– The North American Free Trade Agreement (NFTA).

Lone Pine Resources Inc v the Government of Canada is an example.

This claim uses NAFTA Chapter 11 to sue Canada for losses alleged to arise for Lone Pine due to “Quebec’s arbitrary, capricious, and illegal revocation” of the company’s “valuable right to mine for oil and gas under the St. Lawrence River.” Chapter 11 of NAFTA allows private companies to sue governments (party to the agreement) when laws (later enacted) hurt their expected profits (investor protection).

– The Transatlantic Trade and Investment Partnership (TTIP).

TTIP is not yet agreed, the status of negotiations from the EU perspective is here.

These actions may be additional to those brought to the International Centre for Settlement of Investment Disputes (ICSID) under the World Bank ICSID Convention – information about the work of the ICSID is here.

Agreement on Nevada Anaconda Tort Case (US)

Residents local to the old Anaconda copper mine in Nevada had filed a class action lawsuit after the federal USEPA investigation determined that uranium, a by-product of the mine, was leaking into groundwater, resulting in “dangerous levels of uranium or arsenic or both” in 79% of wells north of the mine. A US Labour Department review in 2008 also revealed that the clean-up schedule had not been enforced.

The Defendents (the mining company) had moved (in court) to dismiss seven of the ten claims, but the Court had upheld the Residents claim founded in Rylands v Fletcher strict liability. Here is the Court ruling dated 30th August 2011.

Per the ABC news article – Fueled by demand after World War II, Anaconda produced 1.7 billion pounds of copper from 1952-78 at the mine in the Mason Valley, an irrigated agricultural oasis in the area’s otherwise largely barren high desert. The EPA determined over the years that uranium was produced as a byproduct of processing the copper and that radioactive waste was initially dumped into dirt-bottomed ponds that — unlike modern lined ponds — leaked into the groundwater.

BP and Atlantic Richfield, which bought Anaconda Copper Co. in 1978, provided bottled water for free to any residents who want it for several years. But they say uranium naturally occurs in the region’s soil and there is no proof that a half-century of processing metals is responsible for the contamination. Local residents started seeking outside legal help after a new wave of EPA testing first reported by the AP in November 2009 found that 79 percent of the wells tested north of mine had dangerous levels of uranium or arsenic or both that made the water unsafe to drink. One and a half miles away had uranium levels more than 10 times the legal drinking water standard. At the mine itself, wells tested as high as 100 times the standard.

Though health effects of specific levels are not well understood, the EPA says long-term exposure to high levels of uranium in drinking water may cause cancer and damage kidneys.

Per the ABC news article – The companies agree to pay $7 million in property damages and $900,000 to a medical monitoring fund. The final damages will depend on the cost of extending city water supplies to about 200 residents, estimated between $6.5 million and $12.5 million.

Fracking Litigation (US New York)

Useful New York Times (NYT) update on New York municipal litigation and rules already enacted is found here.

Per the NYT: Fracking has been the subject of five years of evaluation by state officials, including a continuing, and some say strategically delayed, “health impact analysis” by the New York State Health Department — a process whose pace has been criticized by both supporters and opponents of fracking. In August 2011, Dryden, New York, passed a municipal zoning ordinance effectively forbidding hydraulic fracturing. The ordinance prompted a lawsuit now being mulled by New York State’s highest court, the Court of Appeals, whose ruling could settle the long-simmering issue of whether the state’s municipalities can ban the drilling process.

Per the NYT: “It’s going to decide the future of the oil and gas industry in the state of New York,” said Thomas West, a lawyer for Norse Energy Corporation USA, which has sought to have the ban overturned and will file legal briefs on the appeal on Monday.

Flora and Fauna Guarantee Act 1988 (Victoria, Australia)

Here is information on Victoria’s Flora and Fauna Guarantee Act (FFG), which is the key piece of State (Victoria, Australia) legislation for the conservation of threatened species and communities and for the management of potentially threatening processes. Under the Flora and Fauna Guarantee Act, species listed as threatened must have action statements written about them “as soon as possible”. These statements assess the status of threatened species and help prepare action plans to ensure they do not become extinct. There is a backlog of many threatened species that do not yet have action statements, and this is the subject of concern.

The Victorian Government has now settled with EEG.

Environment East Gippsland (EEG) is a small volunteer-run group that acts in this area. It commenced a legal action against the Victorian government over its failure to prepare “action statements” for four species listed as threatened – the glossy black cockatoo, the long-nosed potoroo, the large brown tree frog and the eastern she oak skink. Here is the EEG web posting about these species. Each of the four species cited in the Environment East Gippsland case has been without an action statement for at least 10 years, with the glossy black cockatoo first listed as threatened in 1995.

As part of the settlement, the government has agreed to finalise action statements by 30 June, 2014. The assessment of the cockatoo will be completed by the end of this year, with the potoroo the next to be analysed. The government also agreed to create an “over-arching plan” for the other species without an action statement by 20 December this year, although this was not part of the main settlement.

Here is The Guardian press article about this, which gives the details about the settlement.

Windfarms (UK)

Judicial Review is upheld in relation to a decision of the Scottish Ministers dated 4 April 2012 to grant consent for the construction and operation of a 103 turbine Viking Wind Farm in Central Mainland, Shetland.

This lengthy Opinion is the first time a petition for Judicial Review of a decision to grant planning permission for a wind farm development has been successful.

The Opinion (ruling) identifies that the decision by the Scottish Government Ministers to grant planning permission was unlawful:
(a) the Scottish Ministers had failed to follow the EU Wild Birds Directive (as respects a rare bird, the whimbrel),
(b) the applicant (for planning permission) did not have a licence to generate electricity.

Here is a short guide to Judicial Review in Scotland.

Here is the Shetland Times news article on the ruling.

Deepwater Horizon (2010 Gulf of Mexico Oil Spill Settlement) (US)

Per RT.com news article – BP will stop paying some damage claims under the 2010 Gulf of Mexico oil spill settlement, after an appeals court agreed that the oil giant may be covering ‘fictitious’ payments to businesses. On Wednesday, a split 2-1 jury of the 5th US Circuit Court of Appeals in New Orleans said the administrator of the payoff program was approving millions of dollars of payment based on what BP called a flawed interpretation of the settlement deal reached last year. It ordered US District Judge Carl Barbier, who in March had approved administrator Patrick Juneau’s damage evaluation methods, to reconsider his decision and make sure that the claims covered are legitimate. The judge was also told to bar payment of certain claims until the review is over. The appeals judges however upheld another Barvier ruling, which in April dismissed BP’s lawsuit against Juneau.

Here and Here are the 5th Circuit Court of Appeals Opinions (rulings) issued 2nd October (Wednesday).

Here is the company’s press release on the Fifth Circuit Court of Appeals rulings.