Tag Archives: environmental litigation

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.

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.

Read more…

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