R (on the application of Fighting Dirty Ltd) v Environment Agency

Environment – Sewage – Sludge strategy – Defendant issuing sludge strategy proposing move of regulation of sludge spreading into Environmental Permitting regime with no target date – Implementation depending on legislation put forward by secretary of state – Claimant applying for judicial review – Whether defendant acting reasonably in public law terms by deciding to remove target date without identifying replacement date – Application dismissed The claimant was a private not-for-profit company, set up as a campaign group committed to identifying and challenging legal and policy mechanisms that allowed pollution to enter the natural environment. Its objectives included to raise awareness of and fight environmental pollution that resulted in harm to life on earth and to campaign for elimination, abatement, or mitigation of such pollution. The defendant Environment Agency was an independent environmental regulator, established in April 1996 as a non-departmental public body. The interested party was its sponsoring government department but the defendant was independent of it. It undertook a wide range of environmental functions mainly regulatory in nature, including the environmental regulation of sludge spread on farmland. The defendant issued its sludge strategy (which proposed to move the regulation of the spreading of sludge into the Environmental Permitting regime) on 17 March 2020, with a target date of 2021. It was then reissued on 15 July 2020, with a target date of 2023. Three years later it was reissued again, on 1 August 2023, with no target date. It was common ground that, by August 2023, the target date of 2023 had become unachievable and needed to be removed. The claimant applied for judicial review arguing that the defendant failed to act reasonably in public law terms by deciding to remove the target date for implementing its sludge strategy, without identifying a replacement target date. Held: The application was dismissed. (1) The defendant had the responsibility and autonomy, as independent environmental regulator, to choose and “own” the content of its sludge strategy. Under section 37(1)(a) of the Environment Act 1995, the defendant had the power to do anything which, in its opinion, was calculated to facilitate, or was conducive or incidental to, the carrying out of its functions; where its functions were to protect and enhance the environment taken as a whole, so as to make the appropriate contribution towards attaining the objective of achieving sustainable development (section 4(1)). That power enabled the defendant to promote regulatory change which it believed to be necessary, to manage risks and push for environmental improvement. (2) Especially where it was interwoven into regulatory regimes as a regulatory decision-maker, the defendant could publish a strategy and give a timeline, notwithstanding that it did not possess the statutory powers whose exercise would be involved in the favoured regulatory change. There was no duty from any statutory or policy framework to state a target date, or a new target date. Rightly, no public law legitimate expectation was claimed. Judgments, in the exercise of an opinion (about what facilitated and was conducive) were evaluative matters of appreciation. It was not unusual for statements of policy intention not to set out a timetable because of the various pressures of government which made it difficult to be specific as to timings. (3) It was not said that the defendant acted unreasonably in the light of an environmental protection necessity found in some external source of information. All the points about the environmental protection necessity derived from the contents of the sludge strategy itself. That was the platform on which the claim for judicial review stood. The defendant was being characterised as unreasonable in the way it had promoted in public its own recognised need for regulatory change. The defendant had publicly recognised the provisional nature of the need for regulatory change. The sludge strategy was clear that the defendant, for its part, had identified the regulatory change of including agricultural land-use of sludge within the Environmental Permitting (England and Wales) Regulations 2016 as the way forward. But that was a position which was necessarily provisional. The defendant had identified that it was going to engage through working groups to progress that objective. It was not intending to conduct further consultation. But that could never be a commitment to legislative action by the defendant as it was always publicly known where the legislative powers resided. Only the government could make a commitment to bring forward legislation. (4) The regulatory need which the defendant assessed as arising was not a pressing imperative. This was not therefore an environmental emergency. The use of sludge on agricultural land was not unregulated. There were the Sludge (Use in Agriculture) Regulations 1989 and the accompanying Code of Practice. The concerns that had arisen related to an emerging picture about evidence and risk. The claimant’s characterisation of the defendant’s decision not to include a new target date as the “do nothing” option was incorrect. Looking at the picture in its true context, that was not a sustainable or fair characterisation. The defendant had an unstinting ongoing resolve, that the regulatory change was the right thing for environmental protection, and that it wished to see the change implemented. Looking at the bigger picture, environmental protection was multi-faceted. The defendant and the interested party were distinct entities. Each had its position about its own workstreams and choices regarding resource-deployment and prioritisation. The court was not an auditor of resourced employment or an umpire of policy-prioritisation. Those were issues for the interested party, not the court. (5) It was impossible to characterise as unreasonable in a public law sense the defendant’s action of raising the question of a published timeline with the interested party and then adopting a position which was in line with what the interested party was asking. Given that the defendant’s position could only ever be provisional, because the authority exercising the legislative powers was necessarily going to be the interested party, a collaborative approach was beyond any criticism which could properly be given a public law shape. To take the position that the adoption of a new target date would not be calculated to facilitate, or be conducive to, the carrying out of its functions was reasonable in public law sense. Accordingly, the action of the defendant in deleting the unachievable 2023 target date from the sludge strategy and reissuing the strategy without any target date but with the other contents repeated, involved no breach of the defendant’s public law duty to act reasonably. David Wolfe KC and Rosalind Comyn (instructed by Leigh Day) appeared for the claimant; Mark Westmoreland Smith KC (instructed by the Environment Agency) appeared for the defendant; Ned Westaway (instructed by Government Legal Department) appeared for the interested party. Eileen O’Grady, barrister Click here to read a transcript of R (on the application of Fighting Dirty Ltd) v Environment Agency