 Michael Barlow and Georgie Messent discuss the reasons why litigation skills are becoming increasingly essential for environmental lawyers as a result of an expansion in contentious work
We believe that the traditional role of the environmental lawyer is changing. Now, with changes in legislation, regulatory practices and other external drivers, environmental lawyers will also need to have key litigation skills.
What are the traditional areas for environmental lawyers?
Traditionally environmental lawyers have advised on a wide spectrum of regulatory issues such as waste, producer responsibility, permits and consents, contaminated land and environmental management. However, the majority of the work has involved applying that knowledge to property and corporate transactions, with occasional interaction with the regulators in an enforcement context.
A much smaller number of environmental lawyers are skilled in dealing with criminal prosecutions arising from environmental offences and doing the necessary advocacy work this requires on a regular basis. Rarer still are environmental lawyers with civil litigation skills. Both of these activities have tended to be dealt with by those with general litigation skills but no environmental knowledge or vice versa.
What does environmental litigation entail?
If an environmental team contains a dedicated civil litigator, they can understand the policy and the rationale behind legislation and provide a much more effective litigation service to the client. This means that, when a dispute arises that requires an understanding of environmental law, the litigator can get to the heart of the dispute quickly. This saves time and money for the client and provides a more effective service.
Existing areas that are the province of the environmental litigator include:
- judicial review;
- environmental warranty claims;
- flooding claims (see p58, IHL144);
- statutory nuisance – bringing and defending appeals against abatement notices (see p67, IHL150);
- nuisance claims; and
- statutory environmental torts (such as claims under s73(6) of the Environmental Protection Act 1990 (see p56, IHL134).
In addition to these specific areas, an environmental litigator can serve the environmental clients of the firm in relation to particular disputes. For example, they could deal with a dispute about the subsidies payable under a windfarm lease, disputes with a liquidator of a company holding an environmental permit or disputes in the nuclear sector.
Will these areas of work increase?
There are several factors that mean that this type of work is likely to increase. These include:
- Access to justice – work is being done to provide easier access to justice for environmental claims as a result of the Aarhus Convention and cases such as Corner House Research, R (on the application of) v Secretary of State for Trade & Industry[2005] show how the courts are starting to grapple with this;
- Public perception – as the public perceives a greater risk of environmental harm and becomes more sensitive to issues, such as noise and smells, together with a greater understanding of how the law can assist, more complaints are likely. This will inevitably lead to both more civil private nuisance actions and complaints to the local authority resulting in abatement notices served under the statutory nuisance regime.
- The current economic climate – over the past ten years developers have held land assets that have been rising in value. However, this is no longer the case. Developers now need to find ways to recover costs in any way possible. Environmental claims are likely to result. Further, in M&A activities the parties will start to look to obtain value out of the warranties and indemnities they have obtained on a proactive basis. They will no longer wait until something goes wrong.
- Climate change – this is going to lead to an increased number of flooding claims. In particular, insurers will look to recover amounts paid out under their policies from third parties if they have been the cause of the flooding. There is also the growing area of climate change litigation (see p53, IHL130 and p46, IHL160). This has seen significant activity in the US.
- Nuclear – Following the reshaping of the nuclear industry over the past few years and the extension of damage for which claims can be made under the Paris/Vienna convention, there is likely to be an increase in disputes in the nuclear sector.
Are there any new areas of work for which these skills are required?
On 1 March 2009 the Environmental Damage (Prevention and Remediation) Regulations 2009 (the Regulations) came into force, implementing the Environmental Liability Directive (see p25, IHL169). As well as leading to work in appealing remediation notices, the Regulations will also lead to an increase in civil litigation.
The Regulations provide that:
‘An operator who incurs liability to the enforcing authority under these Regulations (whether in carrying out work or in payment to the enforcing authority) may recover all or some of those costs from any other person who also caused the damage.’
These claims will be civil claims. Those lawyers who understand the policy background and the detail of the Regulations will be in a stronger place to assist clients with the defence or prosecution of any such claims.
The Regulatory Enforcement and Sanctions Act (RESA) 2008 provides a series of ‘civil sanctions’ for the enforcement of regulation. The Environment Agency is actively seeking the powers available under RESA 2008. For example, it provides that appeals against the civil sanctions will be brought in a First-tier Tribunal established under the Tribunals, Courts and Enforcement Act 2007. It is likely that, under this structure, there will be a ‘Regulatory Chamber’ that will hear these appeals. However, the rules under which these tribunals will operate are not yet clear and are likely to be established under the ministerial order granting the powers under RESA 2008. What is clear, however, is that those lawyers who have experience of disputes in both civil and criminal courts will be ideally placed to assist clients in bringing appeals in these regulatory chambers.
Conclusion
There are several reasons why the next few years will see an increase in the number of environmental disputes, both as a result of external factors in the case of traditional types of litigation but also as a result of legislative changes. As such, environmental lawyers will need to have key litigation skills to adapt to this changing climate.
Burges Salmon LLP has shown the way with the appointment of a new environmental litigation partner, Michael Barlow, who is an experienced civil litigator and has been an integral member of the well-regarded environmental team for eight years. This will supplement the litigation work that the team already carries out, including the defence of a significant number of criminal prosecutions and advice on wider interaction with regulators to prevent environmental claims.
By Michael Barlow, partner and Georgie Messent, partner, Burges Salmon LLP.
E-mail: michael.barlow@burges-salmon.com; georgie.messent@burges-salmon.com.
