Polluter Pays Principle: in Tobago, in the EU/UK, and in UK post-Brexit

Fishermen & Friends of the Sea v. The Minister of Planning, Housing and the Environment (Trinidad and Tobago) [2017] UKPC 37, 27 November 2017 – read judgment

A vignette of where

(1) Trinidad and Tobago is,

(2) the EU/UK is,

(3) where Michael Gove may wish us to be post-Brexit,

on the Polluter Pays Principle (PPP), a key environmental principle.

As we shall see, in legal terms, the expansiveness of (1) and (2) contrasts with the potential parsimony of (3).

Now (3) may be better than nothing, as per the European Union (Withdrawal) Bill, i.e, no enforceable environmental principles at all. But that does not mean we should not aspire for more. After all, as we shall see, the PPP is hardly a racy new entrant into environmental law.

As Lord Carnwath put it in this Privy Council appeal

The Polluter Pays Principle … is now firmly established as a basic principle of international and domestic environmental laws. It is designed to achieve the “internalization of environmental costs”, by ensuring that the costs of pollution control and remediation are borne by those who cause the pollution, and thus reflected in the costs of their goods and services, rather than borne by the community at large.

It has a 55 year history in international environmental debate, 30+ years in EU law, and its latest international incarnation is in Article 8 of the Draft Global Pact for the Environment, presented by President Macron to the United Nations Assembly on 19 September 2017:

Parties shall ensure that prevention, mitigation and remediation costs for pollution, and other environmental disruptions and degradation are, to the greatest possible extent, borne by their originator.

These costs should oblige the polluter to bear not only the costs of remedying pollution but also those arising from the implementation of a policy of prevention: C-293/97 R v Secretary of State for the Environment, Ex p Standley [1999] QB 1279, paras 92-95. Costs and charges may be required  as a result of an authorisation to carry out  a polluting activity.

Trinidad and Tobago law starts here with an Act which refers to the PPP. It also foresees a National Environment Policy, and obliges all bodies to act in accordance with the NEP when made. The NEP (2.3)  invokes the PPP directly, and (a) requires charges to be levied in respect of applying for a licence or permit to pollute; and (b) money collected will be used to correct environmental damage.

The issue in the case was whether the local regulations about charges were consistent with the NEP. The local regulations set a fixed annual permit fee. This was based upon the total cost to the Minister of issuing the permits which she thought she was going to have to issue.

The successful appellant, a local NGO, contended that charges which were solely based about administrative costs did not comply with the PPP, because they bore no relation to the pollution which would be caused by the permit if granted.

As Lord Carnwath put the issue:

Is it sufficient that the fees are assessed on the basis of full recovery only of the operating costs of the authority, including the administration of the permit scheme? Or should they also allow for an additional amount to be used by the Authority itself “to correct environmental damage.”

The answer, on any sensible reading of the NEP, was the latter. It was not sufficient that the polluter would necessarily expend its own money in complying with the permit conditions, and so contribute to the “correction” of environmental damage. The fees were to be used to finance or contribute to correction activities by the Environmental Management Authority itself.

So the local Act, Regulations and statutory Policy were held to spread the costs of pollution onto those who sought to pollute. They could carry on their business as long as they paid the externalities of it.

The rationale is obvious. Minimising pollution costs businesses, and any system which does not make the greater polluters pay more than the lesser polluters favours the rush to the bottom – cheap and dirty.

Upshot: the Privy Council declared the permit fee system to be unlawful and told the Minister to think again (mandamus, as we lawyers say in the latin).

So we see a sophisticated system of turning the broad PPP into a way of making voluntary polluters pay, and thus incentivising, on the bottom line, any decisions to reduce their polluting activities.

The current EU/UK system

Various environmental principles, namely the PPP, the precautionary principle, the preventive principle and that of rectification of damage at source, are embedded into the EU Treaties, via TFEU 191(2).  These Treaty obligations percolate down to individual environmental measures, whether via EU Directives or Regulations and any domestic implementing measures. They are periodically looked at and interpreted by the CJEU, in cases like the Waddenzee cockle fishers case. Their precise meaning may not be absolutely certain, but their guiding presence a given. Nobody is shy about them.

Post-Brexit: the Bill

Cl.4 of the Withdrawal Bill rolls over rights like citizenship rights, free movement of goods, equal pay, state aid and abuse of a dominant position into domestic law. But it does not do the same to Treaty obligations. Cl.4 would be the obvious place to do it. But there seems to be some general British abstemiousness about doing so; articulated rights in favour of people, yes, but principles in favour of other values, well, no.

Gove’s consultation

On 12 November 2017, Michael Gove announced (here) a consultation on a body to hold the Government to account for post-Brexit environmental standards. This is unequivocally good news and would show some width of vision, if a suitable body were to result from the consultation. The environmental deficit once we lose the European Commission would be extreme, if it doesn’t : see my post here.

There is the inevitable heavy top-spin in the press release. Environmental standards will be not only “maintained but enhanced”. Well, let’s test this. It is said that although the Treaty principles are already

central to government environmental policy”,

they are not set out in one place besides the EU treaties. So

The proposed consultation on the statutory body will therefore also explore the scope and content of a new policy statement to ensure environmental principles underpin policy making.

Bit of fudging and tiptoeing here. If they are “already central” to government policy, why not make them law? If not, why not? This lawmaking could be done in a number of straightforward ways

(1) add them to the Withdrawal Bill;

(2) embed them in a statutory instrument made pursuant to the Bill;

(3) enact a new Environment Act positively rendering them British.

The (2) method has been done all the time: many of the principles in environmental directives, particularly in waste law, have been made part of our domestic permitting system,  via domestic regulations. And it is entirely consistent with the roll-over of existing law which is the stated principle behind the Bill – the PPP is part of existing law.

Scrutinise this idea of a “new policy statement” with care. Why should it be just policy? Policy, even if national policy analogous to planning NPS, can be changed by government (not legislative say-so). Making it policy rather than law does not sound like an “enhancement” of an environmental standard, just a down-grading of it to facilitate whatever government policy may be at the time.

The point of embedding EU principles into a post-Brexit world has to be commended, but the way in which it is to be done is important. Let us hope that the consultation process leads to a rather more robust way of making sure that our institutions follow the PPP.

Conclusion

So we come round in a circle. A well thought-out Trinidad and Tobago permitting system makes the PPP real law on the front line (granting permits to pollute). EU/UK law at the moment does the same. Let us persuade Michael Gove/Defra to do the same. It would be fitting if he/they did so by adopting a version of the Trinidad and Tobago system – nothing to do with the EU at all.

Access to justice 

Good on the Privy Council in this case, with a small Caribbean NGO appellant (great Facebook page here). The hearing was video-linked, so that the NGO did not have to fund the fares of its team to Parliament Square. Not only that (and a first win is a very good start for the “away” team), but a hearty encouragement in [1] of Lord Carnwath’s judgment for other Privy Council litigants to follow.

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