Search Results for: environmental


Parent company owes duty of care in transnational cases – Hague Court of Appeal

1 March 2021 by

Parent company owes duty of care in transnational cases - Hague Court of Appeal

The Hague Court of Appeal has recently handed down a ruling that is of profound importance to environmental lawyers. It is not only the first case at the appellate level in Europe that has resulted in a victory on the merits for the victims, but also the first case to hold that a parent company was under a duty of care with regard to foreign claimants. I will attempt to summarise one of the judgments in the following paragraphs, but readers would do well to look at the detailed analysis of the case by  Dr Lucas Roorda on the Rights as Usual blog: “Wading through the (polluted) mud: the Hague Court of Appeals rules on Shell in Nigeria”.

David Hart QC will follow up my post with a piece on  the UK Supreme Court decision in Okpabi v Shell on 12 February 2021.

There are in fact three judgments in this case Four Nigerian Farmers and Milieudefensie v. Shell; as Dr Roorda says,

The first (‘Cases A and B’) concerns an oil spill from an underground pipeline near Oruma in 2005; the second (‘Cases C and D’) concerns an oil spill from an underground pipeline near Goi in 2004; the third (‘Cases E and F’) concerns an oil spill from a wellhead near Ikot Ada Udo. 

All three cases involve the same legal issues, different claimants and slightly different facts. Dr Roorda focusses on Cases C and D in her post. To avoid unnecessary overlap, I will be referring to Cases E and F, Milieudefensie v Royal Dutch Shell plc (1) and Shell Petroleum Development Company of Nigeria Ltd (E), and Shell Petroleum Company of Nigeria Ltd v Friday Alfred Akpan (F) . Milieudefensie is the Netherlands branch of the NGO Friends of the Earth, who supported all of the cases.


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Climate change human rights claim wins in the Dutch courts

14 October 2018 by

_82316729_klimaatzaak-credit-urgenda-chantal-bekker-02-web

State of Netherlands v. Urgenda Foundation, The Hague Court of Appeal, 9 October 2018, read judgment here

The Hague Court of Appeal has just upheld a decision by the District Court that the Dutch State had failed to do enough to combat climate change. In response to a claim by an NGO, Urgenda and 886 co-claimants, the Court ordered the State to reduce its emissions by at least 25% by the end of 2020 (benchmarked against 1990 emissions).

The case raises a mass of interesting issues, not least the various unsuccessful attempts by the State to avoid liability.

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Law Pod UK new episode: Reintroducing the birds and the bees

29 September 2020 by

Through a collaboration with the Environmental Law Foundation we bring you Episode 126, a panel discussion with environmental experts Mark Avery and Nikki Gammans in discussion with Carol Day, consultant solicitor with Leigh Day. This is the first instalment of two of these panel discussions.

A plethora of reintroductions of various species have been making the news recently, with such charismatic species as White Sea Eagles and Red Kites. Dr Mark Avery from Wild Justice discusses with Carol Day how well these projects are working. They also strike a note of caution about the proposal to reintroduce Hen Harriers in the south. Dr Nikki Gammans of the Bumble Bee Conservation Trust talks about the reintroduction of the Short Tailed Bumble Bee. This species as taken to New Zealand in colonial times, and the population remained there after it went extinct in the UK. The Bumble Bee Trust is running a project to bring them back to this country.

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPlayer FM,  ListenNotesPodbeaniHeartRadio PublicDeezer or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

No right to enforce EU air pollution law: only a Crackerjack pencil

31 May 2011 by

More fossil fuel power stations in the news (see my previous post), and more struggling with which bits of Euro environmental law ordinary people are allowed to enforce, and which bits are for the Commission.

Various NGOs challenged the grant of permits to 3 new power stations in the Netherlands, because the state was exceeding its emission limits for sulphur dioxide (SO2) and nitrogen oxides (NOx) and the grant of permits would simply add to these exceedences. The case was referred to the CJEU. The Advocate-General  thought that the exceedences were relevant to whether the permits should be granted – her opinion has been translated into virtually all Euro languages (including Maltese) but not English. Last week, the CJEU disagreed  – in English.

The problem arose because the EU made two directives which didn’t talk to each other.

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Sea fishing, quotas and A1P1: “no-one owns the sea”

11 July 2013 by

carouselThe UK Association of Fish Producer Organisations v. Secretary of State for Environment, Food and Rural Affairs, Cranston J,  10 July 2013  read judgment 

Interesting alignment of parties in this challenge to Defra’s new system of allocating fish quota brought by an industry body (UKAFPO), in practice representing the larger fishing fleet – vessels over 10 metres in length –  Defra was supported by Greenpeace (how often does that happen?), and by the New Under Ten Fishermen’s Association. And this was because Defra had transferred some fishing quota from the larger to the smaller fishing fleet, namely those under 10 metres in length who fish inshore waters.

The first claim was that UKAFPO had a substantive legitimate expectation in their favour which was unlawfully frustrated by Defra’s change of policy. The second was that there was a breach of Article 1 of Protocol 1 (A1P1) of ECHR, or its EU analogue, Article 17 of the Charter. The third was that UKAFPO was being discriminated against unlawfully – comparable situations must not be treated differently under EU law, and only English fishermen who were members of English fish producers organisations were affected.

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No bans on local authority disinvestment decisions

25 June 2017 by

R (o.t.a. Palestine Solidarity Campaign Ltd and Jacqueline Lewis) v. Secretary of State for Communities and Local Government [2017] EWHC 1502 (Admin) 22 June 2017, Sir Ross Cranston – read judgment

Many people like to have a say over the investment policies of their pension funds. They may not want investment in fossil fuels, companies with questionable working practices, arms manufacturers, Israel or indeed any company which supports Israel’s occupation of the West Bank and Gaza Strip – to choose but a few of people’s current choices. And pension funds, left to their own devices, may wish to adopt one or more of these choices to reflect their pensioners’ views.

Hence the significance of this challenge to some statutory guidance which sought to ban some of those pension decisions but to permit others. The context was local government employees (5 million current or former employees). It arose on that ceaseless battleground of government’s direction/intermeddling in local government affairs.

The key bit of the impugned guidance was that those running local authority pensions must not use their policies to

pursue boycotts, divestment and sanctions…against foreign nations and UK defence industries…other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government.”;

or

“pursue policies that are contrary to UK foreign policy or UK defence policy”.

The main issue in this challenge was whether these prohibitions went beyond the SoS’s powers under the relevant pension provisions.

No prizes for guessing why the Palestine Solidarity Campaign (in conjunction with War on Want and the Quakers) supported this challenge. The fact that the domestic arms trade got a special unbannability status would provoke many to go to law.

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Is the planet our neighbour, in law?

7 January 2011 by

It must be something in the air. On the day the “Ratcliffe 20” were spared imprisonment for their planned attack on a power station, the Guardian published environmental lawyer Polly Higgins’ call for a new crime of ecocide and the fringe movement Campaign for Real Farming – rival to the mainstream Oxford Farming Conference – were sewing the seeds for resistance to ecologically damaging agricultural laws and practices.

The widespread perception is that the law and its custodians can no longer be trusted to safeguard the environment, or, to put it in the language of rights, that the protection that flows from current forms of rights entitlement is not only insufficient for, but positively damaging to the interests of the natural world.

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Supreme Court: no excuses, UK must comply with EU air pollution law

30 April 2015 by


NO2_PicR (ClientEarth) v Secretary of State for Environment, Food &  Rural Affairs, Supreme Court, 29 April 2015, judgment here

Bit of a history to this one, with 5 hearings so far. The short version is that in May 2013, the UK Supreme Court (here), faced with the UK’s non-compliance with EU Directive 2008/50 (nitrogen dioxide etc in air), decide  to refer various issues to the CJEU in Luxembourg.  In 2014, the CJEU said its piece, (C404-13 and my post here), and its views are now considered by the Supreme Court, hence this second SC judgment.

The UK has been in breach of Article 13 of the Air Quality Directive since 1 January 2010, by not complying with pollution limits in specified areas. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts.  Defra admitted breach of Article 13 and the lower courts said that, given that admission, it was for the EU Commission, if it wished, to take infraction proceedings.  The Supreme Court’s 2013 judgement disagreed; it granted a declaration that the UK was in breach of Article 13, and posed various questions about the meaning and enforcement of the Directive to the CJEU.

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The Erika: Cour de Cassation finds against Total, big time.

25 September 2012 by

Earlier today, 25 September 2012, (judgment here, in French) the Cour de Cassation in Paris ruled on the long-running question of whether Total is criminally and civily liable  for the loss of the Erika on 12 December 1999 and the consequent spillage of some 20,000 tonnes of heavy fuel oil, affecting some 400 km of the French coastline.

The case has see-sawed so far. The Criminal Court of First Instance, and the Court of Appeal in Paris  had said that Total and others were responsible, though the Court of Appeal did not make this finding in respect of the civil claims. Next, the prosecutor, Advocate-General Boccon-Gibod, expressed his view to the Cour de Cassstion that Total was not liable at all. But his view was not shared by 80 parties who appeared before the court, including the affected communes Now, the court has finally ruled in favour of those polluted, both under the criminal and civil laws, as against Total and other responsible parties – all these issues have been decided in the same decision, in a way which may seem a bit odd to UK lawyers who generally put criminal and civil law in different boxes.

The judgment is pretty weighty, some 330 pages of legal French – as is standard, this is all written as one huge sentence – broken up by multitudinous semi-colons. it is not easy to digest, to say the least, but I shall try and give the bare bones of the decision.

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How to divine statutory purpose: the Israel/arms trade disinvestment case

29 April 2020 by

R (o.t.a. Palestine Solidarity Campaign Ltd and Jacqueline Lewis) v. Secretary of State for Communities and Local Government [2020] UKSC 16- read judgment

As I said in my post on the 1st instance decision, many people like to have a say over the investment policies of their pension funds. They may not want investment in fossil fuels, companies with questionable working practices, arms manufacturers, Israel or indeed any company which supports Israel’s occupation of the West Bank and Gaza Strip – to choose but a few of people’s current choices. And pension funds, left to their own devices, may wish to adopt one or more of these choices to reflect their pensioners’ views. But can they under current local authority pensions law?

This case is about Government “Guidance” aimed at local authorities, banning some of those “ethical” objections to investment policies but allowing other objections. “Guidance” in quotes because the net effect of the Act and secondary legislation was to make the Guidance mandatory: see [10] of Lord Wilson’s judgment. In particular, the policy ban was to apply to (a) boycotts to foreign nations and (b) UK defence industries. The sharp focus of the former was Israel. No surprises that the Quakers and the Campaign against the Arms Trade should appear in support of the challenge to the latter.

The Guidance is applicable to local government pensions affecting 5 million current or former employees. So it arose on that ceaseless battleground of government’s direction/intermeddling in local government affairs: was it or was it not authorised by the underlying legislation?

The Guidance said that those running local authority pensions must not use their policies to

pursue boycotts, divestment and sanctions…against foreign nations and UK defence industries…other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government;

or

“pursue policies that are contrary to UK foreign policy or UK defence policy”.

Did these prohibitions go beyond the SoS’s powers under the relevant pension provisions?

Answer, according to the Supreme Court, yes, but by a majority of 3-2.


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The Weekly Round-Up: Happy (Legal) New Year!

5 October 2020 by

Temple Church

In the News:

On 1 October 2020, the Lord Chancellor, Robert Buckland QC, gave a speech at Temple Church to mark the opening of the legal year.  He praised the “enduring success” of our legal system, our “healthy democracy”, and the “commitment to the Rule of Law” which steered the government’s response to the coronavirus pandemic.

The Lord Chancellor delivered his speech two days after the controversial Internal Market Bill cleared its final hurdle in the House of Commons with ease, by 340 votes to 256. Earlier in September, Brandon Lewis, the Northern Ireland secretary, told the House of Commons that the government’s plans would “break international law in a very specific and limited way.” On September 29, the Lord Chancellor voted against a proposed amendment to the Bill “requiring Ministers to respect the rule of law and uphold the independence of the Courts.” He was joined in doing so by the Attorney General, Suella Braverman, and the Solicitor General, Michael Ellis.


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Mobile masts and grid references get to Europe

29 July 2011 by

Case C-71/10 Ofcom v. Information Commissioner, Court of Justice of the European Union: Read judgment

I posted previously on the Advocate-General’s opinion in March 2011, Office of Communications v. Information Commissioner, a reference from the UK Supreme Court. An epidemiologist working for the Scots NHS wanted the grid references of mobile phone masts. This was refused, and the case got to the Information Tribunal. It found that two exemptions in the Environmental Information Regulations were in play (public security and intellectual property rights), against which were stacked the public interest of the researcher, who wanted to explore any association between the location of the masts and possible health effects.

But the question was how to stack the exemptions: should one weigh each exemption against the public interest, or should one cumulate the exemptions and weigh their combined effect against the public interest?

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Promptness yet again in judicial review: It’s Complicated

29 March 2012 by

Berky, R (on the application of) v. Newport City Council, Court of Appeal, 29 March 2012, read judgment

 Two first-instance cases last year (Buglife, and Broads) considered whether a defendant to a judicial review involving a European point can complain that the proceedings were not commenced “promptly” even though they were commenced within the 3 month time limit. Both judges decided that this argument could not be advanced, even though the wording in CPR rule 54.5(1) reads  “promptly and in any event not later than 3 months.”  The Court of Appeal has now (by a whisker) approved these cases, though there was a vigorous dissent on one important  point from Carnwath LJ. The point was in one sense academic, because the Court thought there was no merit in the underlying proceedings, but the ruling is still important.

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Comity of nations? US ban on US airlines complying with EU emissions law

10 January 2013 by

hr-2594One of the stranger and bolder pieces of US legislation slipped into force in November 2012 – The European Union Emissions Trading Scheme Prohibition Act of 2011 – sic. This  enables the US Secretary of Transportation to prohibit US airlines from complying with EU rules. Those EU rules apply to all airliners which touch down or take off in the EU, and requires them to participate in the EU Emissions Trading Scheme – designed progressively to limit carbon emissions from aviation via a cap and trade mechanism.

The US  Act would be odd enough in its lack of respect for the laws of other countries, had the Act’s beneficiaries (the US airlines) not sought to challenge the legality of the EU measure in the EU Courts – and failed: see my post on the judgment of the CJEU. As will be seen, the EU Court expressly rejected claims (by US airlines) that the rules had extra-territorial effect and conflicted with international aviation conventions. Hence, the scheme was lawfully applicable to US airlines – just as to those of all other countries using EU airports.

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Passive smoking in prison not a breach of human rights – Court of Appeal

14 April 2014 by

Cigarette_smokeSmith, R (on the application of v Secretary of State for Justice and G4S UK Ltd  [2014] EWCA Civ 380 – read judgment

This case raises the question of whether it is a breach of a non-smoking prisoner’s Convention right to respect for his private life and to equality of access to such rights (ECHR Articles 8 and 14) to compel him to share a cell with a smoker.

The appellant, a convicted sex offender serving a long sentence, was required between 21st and 28th March 2012 to share a cell with a fellow prisoner who was a smoker. It was known to the prison authorities that the appellant was a non-smoker, and the requirement to share with a smoker was contrary to his wishes. The sharing complained of ended when the appellant was transferred to another prison on 28th March 2012.

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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Protection covid crime Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany gmc Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Judaism judicial review jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring music Muslim nationality national security NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal Parole patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law Regulatory Proceedings rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Standing statelessness Statutory Interpretation stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw YearInReview Zimbabwe
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