Water quality under the Water Framework Directive, Environmental Permitting, and Lord Sales JSC (on the interpretation of retained EU Law).
The rivers, lakes and bathing waters of the UK should be kept healthy by virtue of retained EU law, the Water Framework Directive having been transposed in England and Wales by the Water Framework Directive (England and Wales) Regulations 2017.
R (Pickering Fishery Association) v. SoS (EFRA) and the EA (CO/996/2023) concerns the central part of this legal system, being the “Programme of Measures” intended to secure that waters achieve “good” status. For those interested in environmental permits, there is an important subsidiary point to watch.
In this challenge, supported by Fish Legal, the judge had little difficulty in concluding that this body of retained EU law requires environmental objectives to be matched to individual water bodies (such as lakes, rivers and streams). Importantly, that correlation must be made clear in the Programme of Measures for each river basin district in order to ensure that water quality is protected and improved.
The consequence is that at the most local level, the public must be able to understand what measures need be undertaken and how they will enable the environmental objectives to be met.
Whilst the level of detail required in each case will vary and whilst a ‘generic’ set of measures may be appropriate across a range of water bodies, the respondents were wrong not to have appreciated that any Programme of Measures needs to include measures which relate to specific water bodies (of which there are 4,929 in England and Wales).
This is an important conclusion which has consequences for an already stretched EA.
For those who have environmental permits (for instance by way of discharge consents), there is an additional issue which raised its head on several occasions in the judgment.
This issue arises out of Article 11(5), Water Framework Directive, which states that where objectives are unlikely to be achieved, the UK shall “ensure that relevant permits and authorisations are examined and reviewed as appropriate”.
Indeed, in Pickering, the claimant fishing club had raised its concerns on a number of occasions with the EA about “the adequacy of the EA’s environmental permit conditions and other controls”, and counsel for the club suggested that the EA should review each permit if that is what is necessary to achieve the environmental objectives. The EA regulates 58,000 water discharge consents and 20,000 licences.
Section 19, Environmental Permitting Regulations 2016 (Subsistence of an environmental permit) guarantees the continuation of a permit (and its conditions). However, as set out in the Core Guidance, there are various points within the EPR 2016 which give the regulators the power to review and to vary both individual permits and the conditions contained within standard rules. The Scottish rules which allow for review and variation in the Water Environment (Controlled Activities) (Scotland) Regulations 2011/209 are instructive.
Judicial review in the UK makes arguments over the detail of environmental permits and discharge consents difficult, but now that the general principle of the approach to the retained water quality law has been established, there may be a future focus on the contents of permits.
Coincidentally, the judgment in Pickering came out only a few days prior to a lecture organised by UKAEL given by Lord Sales JSC: EU Retained Law: Purposive Interpretation when the Constitutional Architecture Changes.
A few judgments have already been delivered since Completion Day in which judges have had to make decisions as to the approach to retained EU law, and the Retained UK Law (Revocation and Reform) Act 2023 now has royal assent (some important consequences of which come into force at the end of 2023).
None of these judgments have made their way to the Supreme Court as yet, but Lord Sales was most interested in the inevitable teleological (purposive) approach, especially where principles such as the importance of the union of EU member states are not relevant to the UK. Consistency and certainty are the order of the day, although it may be that even within the body of retained EU law and individual measures, different provisions will have to be interpreted from a difference contextual perspective. A potential source of interest is the approach of the EFTA Court (presently Iceland, Lichtenstein and Norway).
Lord Sales did not mention the Water Framework Directive or the 2017 Regulations. Given that the purpose of the Regulations (and of the equivalents in Scotland and N Ireland) is to govern the quality of domestic UK waters, it is hardly surprising that the judge in Pickering did not have to deal with EU principles. The important matter of principle which she had to decide has not yet been determined by the ECJ, so we may be able to observe, as a result, how a judgment from England and Wales on EU law will be considered in Luxembourg.
21 November 2023