All posts by naturadvocate

photo via Handelsblatt Global

Banks and Brexit

On Monday evening, I attended a lecture on the potential impact of Brexit on the UK financial services sector (“Report,” link).  The Report was produced by Oliver Wyman and commissioned by TheCityUK.  The presentation covered the current state of play of financial services in the UK, different scenarios for single market access, and some key recommendations for businesses and professional advisers.

Current state of play

  • The UK financial services sector earns approximately £190-205BN in revenues, and of this, up to £50BN is directly related to European Union activity. (Domestic business and other “Rest of World” interactions were not considered).
  • Together with the 1.1 million people working in financial services around the country, the sector generates an estimated £60-67BN of taxes each year, and contributes a trade surplus of approximately £58BN to the UK’s balance of payment.

Key take-aways

The five important features of a successful future relationship between the UK and EU will require the UK to (as recommended by Oliver Wyman): adhere to global norms, retain current access to international markets, maintain/create equivalence and grandfathering, implement orderly transition arrangements, and maintain ongoing regulatory collaboration.

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LS Lowry, 1929

The Purposeful Company?

Last month I attended “The Purposeful Company: a healthy prescription for UK public companies?” at the London School of Economics. The lecture was based upon a recent report published by the Big Innovation Centre (“BIC”) and focused on proposed changes to Company Law and Regulation, aimed at fostering a culture of corporate purpose. The presentation covered the importance of corporate purpose, the implications and failures of the current legal and economic ecosystem, and proposals for legislators, investors, and companies alike moving forward.

Read below for my notes on what it means to have corporate purpose, shareholder commitment to corporate vision, and proposals for decision makers.

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Lava Law: Geothermic energy in Iceland & the UK

Iceland straddles one of the Earth’s major fault lines, the Mid-Atlantic ridge. Here I am, at Þingvellir (Thingvellir) in Iceland – one of the few places on Earth where you can see an active spreading ridge above sea level. Essentially, I’m standing in the rift between the North American and Eurasian tectonic plates!

Apart from being a really awesome and symbolic place for my husband and I to visit (he’s English, and I’m American), Iceland’s rifts and stunning geology play an active role in the country’s energy sector.

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While there are different ways in which to capture geothermal energy, the most popular method is from naturally occurring hydrothermal convection systems. Put simply, water which has been heated by the Earth’s internal convection rises to the surface. The steam produced is then directed to spin turbines, which is then converted into electrical energy.

To put this in perspective for Icelanders, this geothermal heating system meets the heating and hot water requirements of approximately 87% of all buildings in Iceland!

 

Nesjavellir Combined Heat and Power Plant is a high-enthalpy geothermal system within the Hengill area of Southwest Iceland. The plant is a combined geothermal heat and power plant (CHP) wherein it generates electricity and hot water for district heating.

 

While most of Europe lacks Iceland’s dramatic volcanic activity, there is still a substantial resource of geothermal energy across the European continent.

The European Commission notes that geothermal energy “has the potential for much more widespread use, and to make a significant contribution to the 2020 renewable energy targets established in the European Union.”

Several years ago, Irish based geoservices consultancy CSA Group headed up the GeoThermal Regulation – Heat (“GTR-H”) project to investigate current legal frameworks of geothermal heat legislation and regulation. The results of this study were that deficient or “effectively absent” regulations in Poland, Hungary, Ireland and the UK can identify the barriers to development and harmonisation in the sector.

Conversely, regulations in Germany, France and The Netherlands were found to be “effective and forward looking.” These national frameworks could prove to be a starting point for the development of a European-wide regulatory system.

Of course, with the United Kingdom set to leave the European Union within the next few years, the likelihood of such legislation having an impact on British geothermal capture is likely to be minimal – at least officially. One of the great benefits of being part of the EU and other transnational organisations – in my opinion – is the sharing of resources, knowledge, and expertise in tackling global issues such as climate change.

Despite the Brexit doom and gloom, it’s worth noting that I’m still optimistic about the willingness of Government to reach out and learn from our neighbours. Reading into this topic led me to discover that as recently as 2012, the UK government signed a Memorandum of Understanding with Iceland regarding geothermal energy.

One of the key points of this agreement was to “explore the possibility of developing electricity interconnection between Iceland and the UK,” which includes relevant legal and regulatory issues.

Meanwhile, Stoke-on-Trent City Council in Staffordshire, England is set to commence a geothermal feasibility study for a £52m geothermal infrastructure project. So who knows – maybe there’s a Viking god they could consider naming it after?

Magna Carta and the Forgotten Forest Charter

This weekend, my fiancé and I went to the British Library for the Magna Carta exhibition. As we went early in the morning, at one point we were completely alone in the gallery, our noses pressed up against the glass to view an original manuscript in full detail! It was inspiring to see such a famous artefact in person, especially as a trainee lawyer.

However, the document I was left thinking about wasn’t Magna Carta at all, but its rather unknown companion, Carta de Foresta, or the Charter of the Forest. What is this Charter, and might it have even greater significance to British History and Legal Philosophy than Magna Carta itself? 

New Forest has heaths instead of mountains, and is actually the most extensive area of heathland remaining in Europe.

In the Middle Ages, ​”​forest​ ​land”​ included fields, heathland, and villages, as well as wooded areas. William the Conqueror created the first “Royal Forest” in 1079, naming it Nova Foresta, or “New Forest.” In so doing, he also introduced the first Forest Laws to protect both wildlife and the plants that such animals depended upon for food and shelter.

While Royal Forests may sound like an enviro-friendly idea, in actuality these were restrictive hunting grounds for the King’s use only. Before 1079, land had been held in common: it was in essence owned by everyone and yet no-one. This allowed ordinary people (“commoners”) access to hunt or forage for food and gather fallen timber. But the introduction of Royal Forest laws established severe, and sometimes fatal, consequences for living off of the land. For disturbing a deer your punishment might be having an eye or hand removed. Poaching deer – even if only to feed your hungry family – could warrant the death penalty.

The New Forest is home to fallow, roe, sika and red deer.

Successive Norman Kings continued to protect more and more land under the Crown, thereby expanding their wealth and abusive powers. By the 13th century, almost half of the English territory was considered Royal Forest! This system of Royal Forest creation proved to be a lucrative source of income. Firstly, not only had ordinary people lost permission to utilise forest land, but very rarely did they understand what their few remaining rights were. As such, the fines and penalties they paid went straight into the Royal purse. Secondly, the King could also sell licences to the nobility, allowing them a certain quota for hunting and logging.

In June of 1215, King John was forced by a group of rebellious Barons to accept the “Articles of the Barons,” a peace treaty which increased the Baron’s powers while limiting those of the King.

Several clauses aimed to reform Forest Law, promising to “disafforest” the Royal Forests created by King John. This didn’t mean that the trees would be chopped down: it simply meant the land would be removed from the King’s ownership. As a result, the Barons regained the ability to hunt and utilise the land without fear of punishment.

This example of the 1225 Forest Charter, one of three surviving originals, is sealed by King Henry III.

However, various features of the Articles of the Barons continued to be contentious, and further debate led to its reissue in 1217. It was at this point named Magna Carta, and published concurrently with a separate Forest Charter. While Magna Carta spoke mainly of the rights of the Barons, Carta de Foresta also addressed the rights of ordinary people and restored traditional rights.

Subsequently, cases of Forest Law were adjudicated in courts rather than by royal representatives. Officers of the Crown could no longer arrest someone for poaching without evidence, and the death penalty for such a crime was abolished. Gradually, strenuous efforts from local communities led to further reductions in the size of the Royal Forests.

As somewhat of a proto-Socialist treatise of coordinated restrictions upon individual privatisation, the Forest Charter allowed ordinary English people to reassert their liberties and livelihoods vis-à-vis the Crown. I believe this is incredibly significant in the history of legal and political theory. And impressively, the Charter remained in force until 1971, when the Wild Creatures and Forest Laws Act was passed – and the specialised Forest Courts still exist in New Forest and the Forest of Dean.

You can read the full text of Carta de Foresta – it’s neither long nor complicated!

The Big Smoke: ClientEarth v Defra in context

Efforts to combat air pollution in London have been around since the Middle Ages. In 1307, King Edward II declared that “whoever shall be found guilty of burning coal [in the City] shall suffer the loss of his head.” Three hundred years later, English author John Evelyn published one of the earliest known publications on air pollution, entitled “Fumifugium: or, the Inconveniencie of Aer and Smoak of London Dissipated.”

John_Evelyn's_Fumifugium,_Title_Page

Evelyn wrote in his diaries that in London, “the ascent of the smoke was so filled with the [sooty] steam of the coal, that hardly could one see across the street, and this filling the lungs with its gross particles, exceedingly obstructed the breast so as one could scarcely breathe.”

In the 19th century, Parliament took some measures to investigate nuisances arising from smoke pollution. However, as smoke was essential to England’s rapidly-growing industrial economy, and because the physicians were still unable to prove that air pollution was linked to health problems, there was little political will or social pressure to justify tough action.

This remained the status quo until the 1950s, when in December 1952, London experienced the Great Smog. A combination of cold winter weather, heavy fog, and chimney smoke from households burning coal led to the worst air pollution event in British history. Up to 12,000 people are believed to have died as a result, with a further 100,000 being taken seriously ill. In response, scientific research into the environmental increased, awareness grew of the relationship between air quality and health, and of course, more substantial government regulations were introduced.

Nevertheless, air pollution is still estimated to have an effect equivalent to 29,000 deaths each year and is expected to reduce life expectancy of everyone in the UK by 6 months on average, at a cost of around £16 billion per year (UK Department for Environment, Food & Rural Affairs).

Smog over the Thames - a sight familiar to Londoners, myself included!

Smog over the Thames – a sight familiar to Londoners

Earlier this year, activist environmental lawyers at ClientEarth took the UK Government to court over its failure to meet air quality standards established by European Union law. The Air Quality Directive sets legally binding limits for major air pollutants that impact public health, including Nitrogen Dioxide (NO2) which is produced by road traffic and other fossil fuel combustion processes.

Scientists at King’s College London have said that many roads in central London have the highest concentrations of NO2 in the world due to the large number of diesel vehicles and narrow streets with tall buildings.

The current plans from the Department for Environment, Food & Rural Affairs (Defra) would see the UK achieve compliance for NOlimits by 2030 – which is 20 years after the original EU legal deadline of January 2010.

The Mayor of London published a report by King’s College London in July 2015 with the world’s first estimates for the number of deaths attributable to long-term exposure to NO. They estimated 9,400 deaths from fine particles and NO in London in 2010, making air pollution worse than smoking for the first time.

Lord Carnwath reasoned that there was no doubt in the seriousness of the breach, or the responsibility of the UK Supreme Court to secure compliance. He concluded that the Government needs to take immediate action, and ordered that new plans must be delivered to the European Commission by 31 December 2015.

Activists gather outside the UK Supreme Court for the Final Hearing of ClientEarth v Defra

Alan Andrews is the Partner at ClientEarth who has been leading this legal battle since 2011. Following the decision he said, “obviously we set EU law precedent, and we hope that’s going to allow citizens to go before national courts and uphold their right to breathe clean air, but also to enforce other environmental laws.”

Read the full judgement of R (on the application of ClientEarth) (Appellant) v Secretary of State for the Environment, Food and Rural Affairs (Respondent) here.

COP21

COP21 (Paris 2015): a Legally Binding Treaty?

International climate change negotiations began in 1976, but the Rio talks in 1992 — the Earth Summit — established the United Nations Framework Convention on Climate Change‎. 

Current agreements focus on the actions of advanced economies, but not on developing countries – some of which have now become major emitters of greenhouse gases. As such, during the 2011 Climate Change Conference held in Durban, South Africa, it was agreed that a “treaty or agreed outcome with legal force” should be reached amongst 196 signatories (195 countries + the European Union).

The upcoming 21st Session of the Convention – known as COP21 or Paris 2015 – will be held from November 30th to December 11th 2015. The goal is to establish, for the first time, a universal agreement to combat anthropogenic climate change.

If greenhouse gas emissions continue to rise, we will pass the threshold beyond which global warming becomes catastrophic and irreversible. That threshold is estimated as a temperature rise of 2ºC (3.6ºF) above pre-industrial levels, and on current trajectories we are heading for a rise of about 5C. That may not sound like much, but the temperature difference between today’s world and the last ice age was about 5ºC, so seemingly small changes in temperature can mean big differences for the Earth. – Fiona Harvey, Environmental Journalist writing for the Guardian

UNFCCC Bonn

A working group of the UN Climate Change Conference held in Bonn, Germany earlier this summer to prepare for COP21

In the lead up to the Summit, governments around the world will submit their mitigation goals (emissions reduction) and climate change adaptation goals. Known as “intended nationally determined contributions” or INDCs, these goals are drafted at national level. For example, the United States is aiming to reduce its greenhouse gas emissions 26–28% below 2005 levels by 2025. By contrast, the European Union hopes to reach a target of 40% reduction of greenhouse gas emissions when compared to 1990.

As delegations gear up to attend Paris 2015, it is important to remember that Durban set out no concrete specifics as to the legal form or enforceability of such an agreement. The European Union (amongst others) insists that the outcome of Paris 2015 is a set of legally binding targets, whereby countries will be held legally accountable to their INDCs. On the other hand, the US special envoy on climate change, Todd Stern, insists that a ‘hybrid approach’ to legal enforcement offers the best chance of striking a deal agreeable to all.

Non-profit organisations such as Green Alliance, Greenpeace, the RSPB, and the WWF have also weighed in on the importance of reaching a binding agreement. A legally enforceable treaty that works across borders would allow governments and corporate entities to rely on the promises made by others, which encourages both compliance and co-operation.

Polar Bear Cub studying his reflection in Norway (x)

Polar Bear Cub studying his reflection in Norway (x)

However, fixating on the creation of a legally binding deal may inadvertently dissuade countries from submitting ambitious INDC targets. This is because, practically speaking, international treaties – like any contract – are entered into when the individual parties fundamentally believe they will be able to deliver on their obligations. In order to verify such compliance – ie “promise keeping” – formal scrutiny of progress made on emissions reduction will be required. This would require nearly 200 different countries – each with their own constitutions, electoral processes, and economic realities – to agree on the requisite transparency, accountability and punitive (sanctioning) mechanisms.

Would removing the goal of reaching a strict, legally binding treaty allow negotiators the flexibility they need to encourage practicable, tangible action? Might a bottom-up or grassroots approach – fuelled and directed by industry and NGO players alike – make the most meaningful progress?

Spokane sues Monsanto

Earlier this month [August 2015] Spokane, Washington USA launched a lawsuit against the giant agrochemical corporation MONSANTO. I went to university not far from Spokane, so I wanted to do some research on this issue, which is quite literally close to home.

Spokane

Spokane is the second largest city in Washington State. It sits near the border with Idaho, and is about 140km south of Canada.

Monsanto made and sold Polychlorinated Biphenyl (PCB) primarily under the name Aroclor, which was used in paint, hydraulic fluids, plastics, inks, lubricants and other items. The company was the sole manufacturer of PCBs in the United States from 1935 until 1979, when Congress banned the manufacture and use of PCBs under the Toxic Substances Control Act.

As a top company in the Chemicals industry, Monsanto specialize in Agriculture manufacturing products including herbicides, pesticides and crop seeds. Their corporate slogan is

As a top company in the Chemicals industry, Monsanto specialize in Agriculture manufacturing products including herbicides, pesticides and crop seeds. Their corporate slogan is “Growth for a Better World.”

In its suit filed in US District Court, The City of Spokane claims, inter alia, that Monsanto has known that Polychlorinated Biphenyl (PCB) chemicals were dangerously toxic and were accumulating in the Spokane River’s water, sediments and fish.

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Seawalls along Sensitive Coasts: What is Shoreline Armoring?

Earlier this summer, three conservation groups in Washington State joined together to launch a legal battle in an attempt to change how a federal agency regulates the construction of seawalls, bulkheads and other coastal barriers. Having spent about ten years living in Seattle, I wanted to learn more about the impact that such seawalls could have on the environment, and the legal reasoning behind this recent campaign.

Environmental Issue:  “Shoreline armoring” is the practice of modifying marine shorelines with rocks or other materials. By building these armoring structures to hold back the sea and prevent the loss of sediment, coastal land is stabilised and both residential and commercial infrastructures are protected. While this practice can help to prevent erosion, conservation groups claim that it’s destroying Puget Sound habitat.

coastal armoring, marine, conservation, Whidbey Island, Washington, Beach

An example of coastal armoring on Whidbey Island, WA.

Rock and concrete walls have already been erected along about one-quarter of Puget Sound’s 2,500 miles of shorelines, with more than 1 mile of armor being added each year. By altering the geologic processes that build and maintain beaches, bulkheads and other types of sea walls impact erosion patterns and hydrology, and reduce the availability of large wood. Over time, these barriers diminish the availability and condition of key shoreline habitats, turning sandy beaches into rocky areas that aren’t welcoming to forage fish and other species.

Legal Argument:   The Clean Water Act provides federal protection for marine environments up to the true high tide line. It also mandates that a permit be obtained from The U.S. Army Corps of Engineers (CoE) for any construction in, over or under  regulated waters.

However, most of the sea barriers in Puget Sound have been constructed without CoE permits – because the CoE asserts that its jurisdiction only goes to the “mean” high water line. As such, these projects are never reviewed by federal fisheries biologists to determine whether they harm species – such as orca whales and Chinook salmon – which are protected by the Endangered Species Act.

Across many shorelines, the difference between the tides – as illustrated above – can be several feet of tidal elevation. On a gently sloping beach, this could mean that there are huge areas of intertidal habitat which should be regulated and protected under the law, but are not.

This discrepancy has prompted Sound Action, Friends of the San Juans, and Washington Environmental Council – with legal representation by EarthJustice – to petition the CoE to revise its jurisdiction. Hopefully, doing so will result in better environmental and wildlife protection for the Puget Sound.

Further Reading