Court declares that the Environment Agency must take action to reduce emissions

We have been instructed in many cases by landfill site operators, where local communities expressed dissatisfaction with the Environment Agency’s regulation of a landfill site. Our experience is that the EA is rarely called to account. However, a recent case concerning a landfill site in Staffordshire suggest that Regulators are set to face closer scrutiny of their actions.

The judgment In the Silverdale Quarry Case (R (on the application of Richards) v Environment Agency and Walleys Quarry Ltd [2021] EWHC 2501 (Admin) (16 September 2021)) resolved a complaint by a five year old boy, Mathew Richards, who had been born prematurely with a very severe breathing disorder which threatened to develop and shorten his life. A claim for judicial review was brought on behalf of Matthew, complaining about the lack of regulatory steps taken by the Environment Agency (“EA”) to control emissions of hydrogen sulphide from Walleys Quarry Landfill Site in Silverdale which his family believed were making his condition worse.

Section 6 of the Human Rights Act 1998 (“HRA 1998”) provides it is unlawful for public authorities to act inconsistently with rights provided by the European Convention on Human Rights (“ECHR”). Mathew’s representatives claimed that the EA had failed to discharge its statutory duty under Section 6 HRA 1998 to protect Matthew’s Article 2 right to life and his Article 8 right to respect for private and family life afforded by the ECHR.

Background

Hydrogen sulphide, produced by the bacterial breakdown of organic matter, is a flammable, colourless gas with a characteristic odour of rotten eggs.  Residents living near the landfill site had complained of odours and effects on their health and monitoring undertaken at the site demonstrated that hydrogen sulphide emissions from the site were higher in 2021 than in 2017-2019, following a significant increase in the permitted levels of waste tipped at the site.  Crucially, the monitoring also demonstrated that hydrogen sulphide emissions exceeded World Health Organisation (“WHO”) guidelines and levels recommended in reports published by US agencies. This led PHE to make two recommendations in its Fourth Risk Assessment, namely that: “all measures are taken to reduce the off-site odours from the landfill site, as early as possible” (dealing with short-term exposure); and “all measures are taken to…reduce the concentrations in the local area to levels below those health-based guidance values used to assess long-term exposure”.

The Court’s Findings

The judge heard extensive medical evidence from both sides as to the effect of hydrogen sulphide on human health and, in particular, on Mathew’s health.  Interestingly, he did so by using the ‘hot tub’ method whereby both experts give evidence at the same time, allowing the judge to put questions to them concurrently and discuss their responses.  Having heard the medical evidence, Fordham J concluded that ongoing exposure to hydrogen sulphide emissions from the landfill was making Mathew’s current health condition an inevitable precursor to COPD, a serious illness which would reduce his life expectancy. On that basis, he considered exposure to the emissions posed a “real and imminent risk” to Mathew’s life, triggering the positive safeguarding duty for the purposes of Article 2 ECHR.

Fordham J noted that the EA had a statutory duty, under section 6 of the Human Rights Act 1998, to protect Mathew from that exposure and did not accept the EA’s submission that it had done what the law required it to do to protect Mathew, because he had not been presented with any evidence of a disciplined plan to address the recommendation that PHE had made that “all measures” be taken to reduce off-site emissions of hydrogen sulphide “ as early as possible” to certain levels.

Although Fordham J accepted that the EA had a considerable amount of discretion in appraising the problem and identifying the steps it should take, and that it had adequately assessed the emissions from the site and had properly taken advice from Public Health England (“PHE”) he nevertheless held that the EA had failed to demonstrate that any individual officer had devised a plan that would effectively reduce emissions in accordance with the PHE’s recommendations.

Fordham J underlined that PHE’s recommendations required “real and significant change, as a matter of urgency”, in order to ensure that human rights safeguards were practical and effective. He therefore made a declaration that the EA must take measures to ensure that hydrogen sulphide emissions from the landfill site be reduced as early as possible to meet the WHO’s half-hour average guideline level of 5 parts per billion, and that concentrations in the local area must be reduced to below the US EPA Reference Value of 1 part per billion (recommended by PHE as a safe level for chronic inhalation) from January 2022, concluding those reductions would make a “ very real difference” to the air that Mathew and his community breathe.

Comment

As consecutive pieces of climate change litigation around the world have demonstrated, human rights-based arguments are increasingly being used by individuals to force governments into action and the environmental dimension of those rights is well-established.  In this case, Fordham J held that the judgments from the European Court of Human Rights in Strasbourg make it clear that the EA has an operational duty as part of the UK’s framework duty to ensure that ECHR Articles 2 and 8 are met.

Significantly, this was the first domestic judgment explicitly to decide that a reduction in life expectancy can be a “real and imminent risk” to life for the purposes of Article 2 ECHR.  As such, it potentially opens the door to many more such applications, for example by people who are consistently exposed to excessive levels of air pollution, or even those affected by climate change.

Claims for damages resulting from loss of amenity caused by emissions arising from landfill sites and other industrial facilities are common.  Less common, however, are successful claims for an injunction preventing or abating the odours complained of.   For residents seeking a real improvement in their quality of life, rather than financial compensation, this judgment signals a potentially more effective route.

This judgement could be said to be one of the results of the chronic underfunding of enforcement agencies and regulators such as the EA (the EA’s accounts show its funding fell from £157.3m in 2010 to £75.6m in 2020), which has led to a much-reduced rate of regulatory enforcement and prosecution despite the pressing need to tighten environmental standards.  The Environment Act 2021 has of course recently (on 17 November 2021) established the Office for Environmental Protection (“OEP”), a new public body tasked with protecting and improving the environment by holding government and public authorities to account.  It remains to be seen what specific functions and powers will be made available to the OEP by Parliament and it will be reassuring to some that the courts remain willing and able to play a part in taking government agencies to task.