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Strategy positions UK as a world leader in the hydrogen space, supporting 9,000 plus jobs and unlocking £4 billion in investment by 2030.

By Paul Davies, John-Patrick Sweny, and James Bee

On 17 August 2021, the Department for Business, Energy and Industrial Strategy (BEIS) published the UK’s first Hydrogen Strategy (the Strategy). The Strategy sets out the government’s roadmap for achieving its ambition of 5GW of low carbon hydrogen production capacity by 2030, as identified in the Ten Point Industrial Revolution Plan released in November 2020, with government projections indicating that 20-35% of the UK’s energy consumption could be hydrogen-based by 2050.

Forecasts suggest that by 2030, hydrogen could play an important role in decarbonising certain highly polluting industries that are unsuitable for electrification, such as chemicals, industrial furnaces, and long-distance or heavy-duty transport, as well as replace natural gas in powering around three million homes a year. The Strategy clarifies the government’s view that developing the UK hydrogen sector will achieve the twin goals of reducing the UK’s carbon footprint in line with the UK’s net zero commitments, whilst stimulating significant job creation and economic growth in the industrial sector.

The Directive aims to reduce the impact of plastic products and therefore help protect the environment and human health.

By Paul A. Davies and Michael D. Green

On June 12, 2019, a new directive was published that aims to help protect land and marine environments, as well as human health. The mandate — Directive (EU) 2019/904 on the reduction of the impact of certain plastic products on the environment (Single-Use Plastics Directive, or the Directive) — introduces measures to prevent and reduce the impact of certain plastic products, and promote transition to a circular economy.

The Directive encourages the prioritization of “sustainable and non-toxic re-usable products and re-use systems”. This approach aims to reduce plastic waste, drive the promotion and development of alternative materials, and promote the design and production of plastics and plastic products that are re-usable, repairable, and recyclable.

The Directive contains a number of substantive measures that will impact Member States, which are explored in this post.

The significant extension aims to manage plastic waste in an environmentally sound manner and support less developed nations that import waste.

By Paul A. Davies and Michael D. Green

On May 10, 2019, following two weeks of negotiations involving 1,400 delegates, at the Conferences of Parties to the Basel, Rotterdam and Stockholm Conventions, it was agreed to extend the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (the Basel Convention) to include plastic waste (as well as making certain changes to the Rotterdam and Stockholm Conventions). The framework regarding the Basel Convention will look to implement a transparent and traceable system for the export and import of most plastic wastes under which exporting states must now obtain prior written consent from importing states.

This development represents a step change in the global management of plastic waste and places plastic waste within a globally recognised legal standard for the control of international movements of waste.

The Committee has recommended that the UK government take the lead in reaching net-zero, through social, financial, and policy change.

By Paul A. Davies and Michael D. Green

The Committee on Climate Change (CCC), a statutory body that advises the UK government on carbon budgets, has recommended that the UK government should commit to cutting greenhouse gases (GHGs) to net-zero by 2050 in an attempt to meet its commitments under the 2015 Paris Agreement. The Financial Times described the proposed goal as the “toughest binding target of any big economy.”[i] To meet this ambitious net-zero target, the UK government would need to employ technologies such as carbon capture, utilization, and storage to curtail the volume of GHGs entering the atmosphere. Chris Stark, chief executive of the CCC, remarked that the UK’s bid to reach net-zero will be a “powerful signal to other countries”[ii] to take action.

EU will tax manufacturers for excess emissions and collect individual consumption data from vehicles in order to meet climate change goals.

By Jörn Kassow and Patrick Braasch

The EU is setting stricter CO2 emission standards for new passenger cars and light commercial vehicles (LCVs). A new regulation on CO2 emission standards (Regulation (EU) No 2019/631), replacing the past regulations (EC) No 443/2009 and (EU) No 510/2011, was published in the Official Journal on 25 April 2019 and will enter into force with effect from 1 January 2020. From 2025 onwards, the average CO2 emissions of new passenger cars and LCVs must be reduced by 15% compared to 2021 levels. By 2030, the average emissions must be reduced by 37.5% for passenger cars and 31% for LCVs, in each case compared to 2021 levels.

These average emissions targets apply to each manufacturer’s (or group of connected manufacturers’) EU-wide fleet of new passenger cars and LCVs. The regulation will reward manufacturers with less stringent CO2 targets if they meet benchmarks regarding their respective fleet’s share of zero- and low-emission vehicles (2025: 15% for both passenger cars and LCVs, 2030: 35% for passenger cars and 30% for LCVs). Furthermore, manufacturers may enter into pooling arrangements (subject to competition law restrictions) for meeting their emissions targets. These arrangements will allow leaders in zero- and low-emission vehicles to capitalise on their below-average emissions by pooling with, and effectively selling their emissions savings to, manufacturers of more traditional, i.e., CO2-intensive passenger cars and LCVs. Manufacturers can also apply to the Commission for consideration of CO2 savings achieved through the use of innovative technologies. The Commission may grant temporary derogations from their specific emissions targets to certain niche manufacturers.

Waste producers must comply with new criteria and procedures for objects and products to benefit from end of waste status.

By Paul Davies

The French government has developed many measures to foster circular economy approaches. Most recently, a Ministerial Order of 11 December 2018 (Order) sets out criteria and procedures to end the waste status of certain objects and chemical products, to encourage their preparation for re-use.

The French Code of the Environment[i] defines “preparing for re-use” as “checking, cleaning or repairing recovery operations, by which products or components of products that have become waste are prepared so that they can be re-used without any other pre-processing.”

The Order requires that the objects and products meet specific criteria in order to benefit from the end of waste status. The criteria relate to:

  • The nature of the object or product
  • Techniques and treatment processes
  • Qualities and properties of objects and products resulting from such treatments
  • Contractual conditions subject to which such objects and products will be sold
  • Operator’s obligations in relation thereto (traceability)

Four NGOs launch innovative action claiming state has not met COP21 objectives.

By Paul A. Davies and Michael D. Green

On 17 December 2018, four NGOs filed legal action against the French state. In the legal action, the NGOs argued that the state has not met the short-term climate change objectives set at COP21. The NGOs — Greenpeace France, Oxfam France, the Fondation pour la Nature et l’Homme (FNH), and Notre Affaire à Tous — simultaneously launched an online petition to involve citizens in the action, now nearing an unprecedented two million signatures to date.

In accordance with the French Administrative Justice Code, the procedure for the legal action has two prongs. First, the claimants submitted a preliminary demand (demande préalable) to the Prime Minister and to no less than 12 government members seeking damages for: (i) moral harm, (ii) moral harm suffered by their members, and (iii) ecological prejudice suffered by the environment. (For more information on ecological prejudice, see Latham & Watkins’ blog post “The Notion of ‘Ecological Prejudice’ Now in the French Civil Code”.) If the state does not respond within two months of the preliminary demand, the claimants intend to file an indemnification claim before the Administrative Tribunal of Paris in March 2019. The claimants intend to allege causation between the state’s lack of action and the acceleration of climate change.

Latest court ruling further underscores circuit split on groundwater conduit theory.

By Joel C. Beauvais and Stacey L. VanBelleghem

The US District Court for the Central District of Illinois has held that power plant owners are not liable under the Clean Water Act (CWA) for discharges of pollutants from coal ash disposal facilities through groundwater to waters of the US. The November 14 ruling is the latest in a series of recent defeats of CWA citizen suits premised on the so-called “groundwater conduit” theory.

Plaintiffs in Prairie Rivers Network v. Dynegy Midwest Generation, LLC initiated a CWA citizen suit against the owners of the Vermilion Power Station, a retired coal-fired power plant in Illinois. Plaintiffs alleged that defendants unlawfully discharged pollutants into groundwater from unpermitted seeps in their coal ash disposal facility and this groundwater was hydrologically connected to the Middle Fork of the Vermillion River. The district court relied on prior US Court of Appeals for the Seventh Circuit precedent (outside the coal ash context), holding that the CWA does not govern discharges of pollutants into groundwater, even if there is a hydrologic connection between the groundwater and waters of the US. Unlike other recent cases evaluating CWA liability from coal ash facility seepage into groundwater, this court did not address whether the coal ash facility was a “point source” under the CWA, given the existing circuit court precedent on the groundwater conduit theory.

The report supports the efforts of the EU’s Seventh Environment Action Programme.

By Alexander Wilhelm

According to a report prepared by the Joint Research Centre (JRC) — the European Commission’s science and knowledge service — countries across Europe are making progress on tackling soil contamination. The report[i] states that the management of contaminated sites in Europe has improved substantially. The survey prepared by the JCR scientists included 39 countries, of which 25 are EU Member States. Within the EU there are an estimated 2.8 million sites where artificial surface indicates that polluting activities have occurred in the past. According to national and regional inventories of countries that replied to the report’s questionnaire, more than 650,000 sites are registered where polluting activities took or are taking place. The number of remediated sites or sites under aftercare measures has increased from 57,000 to 65,500 in the last five years. Although these inventories are more accurate than ever before, investigations of more than 170,000 sites are still pending.

Soil contamination means reduced soil quality because harmful substances resulting from human activity are present. In general, such contamination violates private or public interests, and can even harm human health or the environment. According to the report, mineral oils and heavy metals are the most frequent contaminants. The excavation and the off-site disposal of contaminated plots are the most frequently used remediation techniques — also known as “dig-and-dump.” With the help of the provided data, JCR scientists have revealed that an average of €4.3 billion is spent to tackle soil contamination in the surveyed countries, of which more than 42% is taken from public funds. According to the report, this is due to the divergent application of the “polluter-pays” principle, which is applicable to historical contamination only in a few countries. Those differences in the legal treatment of historical contamination should be assessed carefully not only by the current owner, but also by any prospective buyer.

Fourth and Sixth Circuit decisions give power plant operators additional defenses to citizen suits pending potential Supreme Court review of “groundwater conduit” theory.

By Joel C. Beauvais and Stacey L. VanBelleghem

Over the past month, two US Courts of Appeals have rejected Clean Water Act (CWA) citizen suits seeking to hold power companies liable for discharges of pollutants from coal ash disposal facilities “through” groundwater to waters of the US. Although the Fourth Circuit accepted that discharges through groundwater could be the basis for liability, it held that the relevant ash piles and impoundments were not “point sources” for purposes of the CWA. The Sixth Circuit likewise held that the ash disposal facilities at issue were not point sources, but — contrary to the Fourth Circuit — also held that discharges through groundwater were not actionable under the Act. Collectively, these recent decisions stand as a significant new obstacle to citizen suits against owner/operators of coal ash impoundments. At the same time, the decisions deepen a circuit split on the so-called “groundwater conduit” theory of CWA liability, helping to tee the issue up for possible Supreme Court resolution. If the Court does take this question up, the outcome will be critically important for many industry sectors, including electric power, oil and gas, manufacturing, and mining companies, among others. The CWA imposes strict liability, and citizen suits based on groundwater conduit claims can result in extremely costly remedies — including large civil penalties and injunctive relief.