Environmental Law: the hot practice area of the 2020s

Environmental law deals with issues such as the contamination of land, erosion and the big topic of climate…

Environmental law deals with issues such as the contamination of land, erosion and the big topic of climate change. It also deals with the area of project stewardship, meaning companies managing the lifestyle of their products in order to comply with EU/UK law. Recent environmental law cases include the HS2 rail, and multiple judicial review cases including the litigation over the national policy statement that related to the expansion of Heathrow Airport, known as R (Plan B Earth) V Secretary of State for Transport [2020] show that it is becoming a fast moving and highly sought after area for a multitude of different sectors in society. Firm such as Burges Salmon are already at the forefront of green energy, having one of the largest environmental law teams in the country (14 environmental lawyers as of publication).

There is a vast change coming in the area of environmental law. With roughly 80-90% of UK environmental law being derived from EU law, and Brexit having now put this in jeopardy, the UK government is currently in the process of trying to untangle over 40 years of law and governance which is going to have an enormous impact on what the environmental sector will look like in the next decade and beyond. Currently, there appears to be no further changes to the date of leaving the EU, however the pandemic has disrupted everything to do with Brexit and has caused Germany to cut talks about Brexit for the foreseeable future. At the moment, the first significant changes to environmental law will start to appear from 1st January 2021.

Yet Brexit and the new era of the 2020s represents a significant opportunity for students and graduates to improve the natural environment. With this, there are two important documents that those interested in environmental law should know of currently: the 25 year plan and the new Environmental Bill that is currently going through Parliament. There has also been an unprecedented level of public support after the brilliant Blue Planet documentary, highlighting the sever issues climate change is having on the environment, and if this support continues then it will certainly drive change and can only be viewed as a positive on the basis of the facts.

In 2018, then Prime Minister, Theresa May, established a series of plans to ensure that the UK would be the first country whose generation would leave the natural environment in a better state than it had been found. This included her announcement of plans for a plastic deposit scheme, which was modelled on a Norwegian policy aimed at boosting recycling in Norway. May also produced a 25-year plan that set out strategies on how the UK will improve the environment in the next generation and contains a series of goals and targets for issues such as clean air, water and reducing environmental hazards. 

The Environmental Bill 2019-21, which was being considered by a Public Bill Committee but is currently postponed until the 29th September 2020, has been in the works and attempting to make its way through the Houses for just over two years. Due to Brexit, the UK is beginning to untangle itself from all of the checks and balances that the EU institutions provided for the past 40 years. This Bill will seek to make provisions for said principles in governance with UK law, however this may take decades before all EU legislation is eradicated. A key element of this is to be the establishment of the office of Environmental Protection, which has a dual role of providing advice to the government, but also being the body that will investigate any failures by public authorities to comply with environmental law. 

So, what is going on in the UK market at the moment? 

There is still plenty of conventional renewables activity, though much of it is secondary (dealing with the buying, selling and financing of existing plants rather than the building of new facilities). The focus has now moved from managing these energy systems to ensuring that the supply meets the demand when and where it is needed. The focus is on issues such as battery storage (electric vehicles), responsiveness (how quickly people and businesses are in responding to supply and demand) and being smarter about how and when we use energy. There is a huge area of growth here and though it has not been successful yet, it is definitely a space to watch. Another area is the decarbonisation of heat. We need to cut dependency on gas and stop having a gas boiler in every house. From this, the decarbonisation of mobility and increase in electric vehicles is a big area to look at as charging infrastructure is a difficult process for lawyers to handle. Automotive manufacturers with charging point installers and with energy suppliers, and with this the energy market is going to be a much bigger thing for electric vehicles.

Given the current environment, we are only seeing the very start of the impact of COVID-19. For a lot of these large infrastructures project, whether they are in the process of completion or are already being operated, we have yet to see the full extent. Everyone has been patching up the issues, such as force majeure claims, and immediate relief, but how this all plays out in the medium to long term and whether financial models need to be completely reviewed and reassessed and how that affects the financing of some of these major projects – this is a big issue. On the political uncertainty point, it is fairly easy to think about the political decisions such as cutting funding to environmental projects, are having a huge impact on the future.

Green Energy Generation and High Speed Rail are currently the important developments that will happen but it is not as important as the development of high speed broadband, especially given students who have been on different vacation schemes, such as Clifford Chance, and a significant majority of university students having done their summer exams online in their homes using Wi-Fi. Yet, the use of tech is not all about generation. Generation is important but is how you balance supply and demand of electricity at the given points that you need it, and tech is going to be a huge driver for that. A lot of this is going to be around energy usage and a huge opportunity there for buildings and businesses working together and talking to one another. 

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