by Hardwick Legal | Feb 7, 2017 | Purpose Built (LexisNexis)
What are the implications of Trump’s presidency for climate change? Sebastien Korwin, a senior legal and policy advisor at Climate Law and Policy, warns that President Trump’s declared intention to withdraw from the Paris Agreement only reinforces the fear that the US will be more of a hindrance than a help in the fight against climate change.
What environmental issues will Donald Trump prioritise in the early days of his Presidency and what is likely to be the impact of these?
Throughout his election campaign Donald Trump made a number of statements that provided clues on the steps his administration could take with regard to the environment and, more specifically, environmental legislation. In a televised address outlining his policy plans for his first 100 days in office, he pledged to cancel funding for climate change programmes, vowed to revive the coal industry and lift restrictions on drilling for fossil fuels on federal lands to encourage an increase in shale, oil and natural gas production. Myron Ebell, a key member of Trump’s transition team, also outlined some of Trump’s plans for the US Environmental Protection Agency (EPA), which include limiting the regulation of power plants and revising the rules on developing crucial ecosystems such as wetlands.
Trump’s cabinet nominations support this general position, with picks that include Rex Tillerson, CEO of ExxonMobil for Secretary of State, Rick Perry for Department of Energy and Ryan Zinke, who has questioned the extent of humanity’s role in causing climate change, for Department of the Interior. His proposed attorney general, senator Jeff Sessions has come under scrutiny for failing to disclose that he leases land to an oil company. Scott Pruitt, Trump’s pick for administrator of the EPA (a key sub-cabinet position), has actually been involved in 14 lawsuits against the EPA while attorney general of Oklahoma, including an attempt to revoke the Clean Power Plan.
Since his inauguration on 20 January 2017, President Trump has issued his ‘America First Energy Plan’, which among other things, commits to eliminating Obama’s 2013 Climate Action Plan. He has also recently signed executive orders to ‘facilitate the expeditious review’ of the permit application for the Keystone XL and Dakota Access pipelines, which had previously been put on hold by the Obama administration following major public protests.
The Trump administration has also taken some drastic measures at the EPA, including:
- the recent statement by Doug Ericksen, the communications director for Donald Trump’s transition team at the EPA, that all future studies or data from scientists at the EPA must undergo review by political appointees before they can be released to the public
- the imposition of a media blackout
- a temporary suspension of all new business at the department, including the provision of grants (such as those that support environmental testing and innovation projects) and contracts (such as hazardous waste handling and drinking water quality testing)
This apparent trend of prioritising commercial (in particular fossil fuel) interests over environmental regulation is a major causesfor concern, not only in terms of CO2 emissions, but also for the US environment as a whole. For instance, seven million gallons of crude oil were spilled in more than 1,000 pipeline leaks between 2010 and 2015 alone. The watering down of environmental regulations and the limits being placed on the EPA are only likely to increase these occurrences.
What would the US’s withdrawal mean for the Paris Agreement in general? Could it have a domino effect?
During his campaign, Donald Trump made statements that climate change is not happening or is a hoax perpetrated by China. His declared intention to withdraw from the Paris Agreement only reinforces the fear that the US will be more of a hindrance than a help in the fight against climate change. It has since been reported that President Trump is preparing to sign two executive orders, one to drastically reduce the US’s role in the United Nations and the other, entitled ‘Moratorium on New Multilateral Treaties’, calls for a review of all current and pending multilateral treaties and to consider which ones the US should leave. The scope of the order is intended to include all multilateral treaties that are not ‘directly related to national security, extradition or international trade’, which will likely include the Paris Agreement.
It is unlikely however, that even the withdrawal of the US would spell the end for the Paris Agreement. During the 22nd United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties (COP) held in Marrakesh in November 2016, the Chinese vice-foreign minister, Liu Zhenmin made it clear that a US withdrawal would not deter China from supporting either the climate negotiations nor the implementation of the Paris Agreement.
While the withdrawal of US support (in particular, funding to poor and vulnerable countries to mitigate and adapt to climate change), would hinder efforts to implement the Paris Agreement, the willingness of major players such as China and the EU to collaborate to drive coordinated climate action forward means that it will not suffice to kill the Paris Agreement entirely, nor is it likely to cause a domino effect of withdrawals.
How realistic is this withdrawal and is it likely to face congressional opposition?
President Trump has recently stated that he now has an ‘open mind’ with regard to US involvement in the Paris Agreement and Secretary of State, Rex Tillerson told the Senate Committee on Foreign Relations during his confirmation hearing that the US should ‘maintain its seat at the table’ in the climate negotiations. He also said that the threat of global warming is real, that it ‘requires a global response’ and that ‘no one country is going to solve this on its own’.
Following the November 2016 elections, the Republican Party now has majorities in both the Congress and Senate, and has publicly declared its opposition to the Paris Agreement. The degree of congressional opposition to an attempt by the Trump administration to withdraw from the Paris Agreement would therefore depend on the Democrats. It has been argued that leaving the Paris Agreement will be simple because it hasn’t been ratified by the Senate, though in reality it may not be so simple.
The Paris Agreement officially entered into force on 4 November 2016, which according to its Article 28 means that any party seeking to withdraw from it must wait three years following its entry into force to communicate their intention to withdraw. Even then the withdrawal would only take effect one year after that (for a total of four years). It has however, been argued that the US could simply withdraw from the United Nations Framework Convention on Climate Change (UNFCCC) altogether, which would only take one year according to Article 25. As the UNFCCC is the framework agreement, withdrawing from the Convention would also result in withdrawal from the Paris Agreement.
Could the UK, buoyed by its commitment to pursue a hard Brexit, follow suit?
In July 2016, the Prime Minister Theresa May abolished the Department of Energy and Climate Change (DECC) and merged it with the Department for Business, Innovation and Skills (BIS) to form the new Department for Business, Energy and Industrial Strategy, causing concern that action on climate change may be moved down the list of government priorities.
However, the UK government ratified the Paris Agreement on 18 November 2016, suggesting that Mrs May’s government intends to continue playing a role in the multilateral negotiations. Nick Hurd, Minister of State for Climate Change and Industry, was quoted as saying that ‘The UK is ratifying the historic Paris Agreement so that we can help to accelerate global action on climate change’ and that the government would ‘use this positive momentum to grow the UK low-carbon sector’ (at COP 22). It is therefore unlikely that Brexit would lead to the UK withdrawing from the Paris Agreement. On the contrary, continued diplomatic engagement in the UNFCCC would cement the UK’s position as a sovereign player, separate from the EU.
Could a UK/US trade deal prove harmful to the environment, ie if it results in fewer restrictions and regulations being placed on UK/US products and services?
There is no short or simple answer to this question, however, looking at the negotiations of relevant trade deals, including the Transatlantic Trade and Investment Partnership (TTIP), can provide insights as to why commentators are concerned. Following a leak by Greenpeace of 13 chapters of the draft TTIP, it emerged that significant areas of EU legislation have been identified by negotiators as ‘technical barriers to trade’ to be removed, including on:
- energy efficiency labels
- public procurement policies
- the regulation of unconventional fossil fuel extraction
- the regulation of toxic chemicals
It is likely that UK/US free trade negotiations would lead to similar conclusions by US negotiators and could also lead to them calling for these ‘technical barriers to trade’ to be removed.
Under World Trade Organization rules, states have the right to take measures to protect ‘human, animal and plant life or health’ or for the ‘conservation of exhaustible natural resources’ without these being considered breaches of free-trade rules. However, the US in all its free trade negotiations (including the North American Free Trade Agreement (NAFTA), TTIP, Trans-Pacific Partnership as well as its bilateral trade agreements) has insisted on the inclusion of Investor-State-Dispute-Settlement (ISDS) clauses, which grant foreign investors (ie US companies) the right to sue states if they believe that laws or measures of or any partner are likely to damaged their investments and reduce their expected profit. Recently these clauses have been called upon by investors facing environmental regulation around the world, resulting in huge legal costs for states. An example is the US Lone Pine energy company using the NAFTA ISDS provisions to sue the provincial government of Quebec for approximately $120m because it suspended shale gas mining pending an environmental study in response to community concerns (see Lone Pine Resources Inc v Government of Canada, ICSID Case No UNCT/15/2). It is likely that such clauses would be included in any future US/UK, thus potentially undermining any future UK environmental legislation.
Sebastien Korwin is an environmental lawyer working on international environmental policy and law in the areas of climate change, biodiversity, forest governance, REDD+ and human rights.
Climate Law and Policy (CLP) is an independent advisory organisation that helps design, implement and sustain environmental governance advancements.
Interviewed by Kate Beaumont. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
Source: LexisNexis Purpose Built
President Trump and the future of the Paris Agreement
by Hardwick Legal | Feb 3, 2017 | Purpose Built (LexisNexis)
All you need to know about vacant possession strategy for redevelopment – covering the types of occupation and issues a developer may encounter when considering the viability of a potential redevelopment site.
A site that is ripe for redevelopment can also be laden with different interests, with varying degrees of legal protection. Landlords that are looking to redevelop must consider the nature of any interests, and the mechanisms and timings for terminating them, well before any redevelopment is due to commence.
This practice note, produced in partnership with Jill Carey of Taylor Wessing LLP and part of our new LexisPSL Property Disputes module, considers the types of occupiers and interests in place, from commercial leases to long-term residents and licensees, and how these interests might be terminated. As timing is critical to redevelopment, we also explains the timing of serving notices and taking action to recover possession, and the importance of ensuring that the developer deals with all the interests on the site, not just the immediate subject.
- What problems/issues may a developer encounter when trying to recover vacant possession of a property or site?
- Provides a guide to the most common issues relating to occupation and what owners/landlords need to be aware of
- Details the notices to be served and the steps to be taken to bring each type of occupation to an end
- Sets out the potential impact of these issues on timing and costs of redevelopment
Before it’s here, it’s on Lexis®PSL. Click here to take a free trial.
Lexis®PSL Property Disputes is an online practical guidance product for customers dealing with property litigation matters which provides a range of procedural and substantive guidance set out in topics which reflect how disputes are approached in practice, both in terms of the underlying issues as well as the different stages of proceedings.
LexisPSL Property Disputes contains brand new content as well as existing content from both LexisPSL Property and LexisPSL Dispute Resolution.
This new module has been created based on customer feedback that those working in the area of property disputes would like all of the information they require together in one place. It is a one-stop-shop for property disputes legislation, cases, current awareness, commentary, practical guidance, checklists, and precedents. This expert content is split into a wide range of intuitive topics and sub-topics which can be easily searched and navigated.
Source: LexisNexis Purpose Built
How to: Vacant possession strategy for redevelopment
by Hardwick Legal | Jan 17, 2017 | Purpose Built (LexisNexis)
Sir Vivian Ramsey, former judge of the Technology and Construction Court, considers the new editions of the Professional Services Agreement suite published by the Association for Consultancy and Engineering (ACE), and why the changes were implemented. The revised agreements include a new Professional Services Agreement and Sub Consultancy Agreement as well as new Schedules of Services for both Civil & Structural and Mechanical & Electrical Engineering.
This News Analysis was originally published on Lexis®PSL Construction. Discover how Lexis®PSL can help you stay on top of the latest developments and find the answers you need fast: click here for a free trial to access.
What changes have been made to the new editions of the ACE Professional Services Agreement suite and why?
Experience in the courts and arbitration indicates that many agreements between consultants and their clients are made by an exchange of letters and with little formality. This may, of course, be the very reason why a dispute has arisen. Sometimes the speed of appointment means that consideration of the detailed terms of the consultancy agreement takes second place to performing the work, particularly for small and medium sized firms.
For many years, the ACE has provided the main standard forms of agreement which consultants have used. They have provided useful guidance and, when properly used, have successfully regulated the relationship between clients and consultants. The existing suite was last revised in 2009 and it has become necessary to take account of several developments since that date.
The recent release by ACE of its first major update of the Professional Services Agreement suite in January 2017 is therefore to be welcomed. The revised agreements include a new Professional Services Agreement and Sub Consultancy Agreement as well as new Schedules of Services for both Civil & Structural and Mechanical and Electrical Engineering. The aim of the new editions is to improve the efficiency and certainty in the way in which professional services are procured. This is assisted by detailed guidance notes which accompany the agreements.
The focus has been on the creation of a logical, user friendly format containing a clear and fair allocation of risk between the client and the consultant. At the same time the new agreements have addressed issues which now arise from industry practice and Government initiatives such as good payment practice, collaboration, risk management, BIM, dispute resolution and soft landings initiatives. The changes have taken account of industry consultation and the views of users.
Issues arise in respect of the rights and liabilities of consultants. The new agreement contains comprehensive provisions including liability relating to deleterious materials, a reasonable endeavours obligation in respect of any programme for the Services, Consultant’s responsibility for sub-consultants, timing of requests for information from the Client, the authority of the Consultant’s Representative, the ability of the Consultant to act as agent and the duty for the Consultant to exercise any discretion in a fair, impartial and professional manner.
Joint obligations are dealt with and include a duty of collaboration supported by a mutual early warning obligation in relation to matters that are likely to affect the provision of the Services leading to discussions, actions and measures. There is also a duty to work together to analyse and manage any risks.
Variations to the Brief or the Services are the subject of express provisions and there is also provision for payment for disruption to the Consultant’s work. There are clauses dealing with limitation of liability, proportionate joint liability and time limits for claims, which together with insurance deal comprehensively with these necessary topics. There are also particular rights of suspension, in addition to the familiar termination provisions.
As with all standard forms the Schedules allow for detailed provisions, including BIM protocols, to be chosen for the project and any bespoke arrangements. As always, the Schedules require care in completion. A standard collateral warranty is included with an optional provision of beneficiary’s step-in rights.
It can therefore be seen that the approach taken in the new Professional Services Agreement, which is also reflected in the other documents, makes this new suite of agreements an essential part of regulating obligations and avoiding disputes. It will be welcomed by consultants and clients alike.
Copies of the entire Professional Services Agreement suite are available to view and purchase from the ACE website.
Source: LexisNexis Purpose Built
ACE Professional Service Suite of Agreements 2017 released
by Hardwick Legal | Jan 13, 2017 | Purpose Built (LexisNexis)
Karen Mutton, principal associate in the national planning and infrastructure consenting team at Eversheds, Laura-Beth Hutton, senior associate in the national planning and infrastructure consenting team at Eversheds and Angus Walker, partner in the planning and infrastructure team at Bircham Dyson Bell consider what lies ahead for planning lawyers in 2017.
This is an excerpt from a planning analysis, published on Lexis®PSL, which also takes a look at what are likely to be the most important cases, the impact of Brexit and its impact on client and business developments. Sign up for a free trial to access the full analysis on Lexis®PSL Planning.
Karen Mutton & Laura-Beth Hutton: In July 2015, the government issued a Written Ministerial Statement that sought to address the failure of a number of local planning authorities to produce a local plan in the decade since the enactment of the Planning and Compulsory Purchase Act 2004. This required plans to be in place by ‘early 2017’ to avoid intervention by the Secretary of State. We are approaching the cut-off date, and those powers of intervention have recently been strengthened by the Housing and Planning Act 2016 (HPA 2016) to allow the Secretary of State to make a local plan on behalf of an authority that fails to do so or indeed to prepare or revise any development plan document. This power can be exercised if the Secretary of State thinks that the local planning authority is ‘failing or omitting to do anything it is necessary for them to do in connection with the preparation, revision or adoption of a development plan document’. It will be interesting to see how these wide-ranging powers are exercised while still embracing the localism agenda.
The regulations relating to starter homes due under HPA 2016 are keenly awaited. The concept of starter homes was introduced by David Cameron as part of the Conservative Party manifesto, and Gavin Barwell, Minister for Housing, has recently announced the ‘first wave’ of 30 local authorities who will be allocated funding aimed at preparing land for starter home development. Yet questions continue to be asked, both about whether it will be possible to build 200,000 homes by 2020 to deliver on the Government’s pledge and, vitally, how the new category of ‘affordable housing’ will be administered in practice. The regulations required to provide the operational details have been repeatedly delayed, and there had previously been suggestion that the starter home initiative may be dropped, or amended to include a requirement to provide more homes to rent too. Whilst the recent announcement confirms that the starter home initiative is still live, and the imminent White Paper may bring some clarity as to the Government’s intentions for this product, what is beyond doubt is that the continued uncertainty surrounding starter homes is causing concern across the industry for:
- smaller developers in terms of whether their schemes of ten dwellings will be affected
- larger developers in terms of factors such as site viability, impact on cashflow and the market for these products across the whole of the country, and
- local authorities in terms of the impact on the delivery of the appropriate range of affordable housing to meet the needs of their communities
- smaller developers in terms of whether their schemes of ten dwellings will be affected
- larger developers in terms of factors such as site viability, impact on cashflow and the market for these products across the whole of the country, and
- local authorities in terms of the impact on the delivery of the appropriate range of affordable housing to meet the needs of their communities
The latter has, of course, already been affected by the re-introduction of the exemption for sites under ten dwellings to provide affordable housing pursuant to the Court of Appeal decision in R (on the application of West Berkshire DC and Reading BC) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441, [2016] All ER (D) 99 (May).
It will also be interesting to see how the proposed further changes to the neighbourhood planning system impact on development.
It is clear that the government is keen to encourage communities to shape development in their neighbourhoods, but it is far from clear at present how the content of an emerging neighbourhood plan, will influence determination of a planning application. The Neighbourhood Planning Bill requires that regard must be had to a post-examination neighbourhood plan, albeit we have recently had the first rejection of such a plan at referendum as a result of amendments proposed by the independent examiner. In a further recent appeal decision in East Staffordshire v CLG [2016] EWHC 2973 (Admin), the Secretary of State gave great weight to the policies in an emerging neighbourhood plan taking account of modifications proposed by the examiner, which included amendments that specifically affected the site in question.
The Peace Review into the Community Infrastructure Levy (CIL) is keenly awaited—many hopes are pinned on this recommending simplification of the current system, particularly with regard to pooling, and these being implemented in 2017. This is to be revealed in the White Paper promised soon.
Angus Walker: The Supreme Court judgment in the Miller case on Article 50, and the subsequent triggering of that article, whether or not it needs a vote in Parliament will be significant. This will start the process for leaving the EU that will complete whether or not a deal is done two years later.
The CIL review may eventually be published and its recommendations could mean a significant change to CIL leading to greater use of agreements under section 106 of the Town and Country Planning Act 1990. While not being abolished altogether, it is widely expected that CIL will be reduced in scope and s 106 agreements will take up the slack. The HS2 Bill will almost certainly become an Act in 2017, giving the government the powers to acquire land and start to construct the railway. The land along the route will be directly affected, and planning applications for development near the route will have to give more weight to the construction of HS2 nearby.
The ‘Great Repeal Bill’, actually a Small Enactment Bill, will start its journey through Parliament, replacing EU law with an exact domestic equivalent, initially. Once Brexit is achieved, the government will be free to tinker with this legislation and make it different from EU requirements, to the extent it is allowed to under the agreement that is reached.
Further reading:
Source: LexisNexis Purpose Built
Planning—what are likely to be the most significant legislative and regulatory developments and why?
by Hardwick Legal | Jan 13, 2017 | Purpose Built (LexisNexis)
Simon Colvin, partner and national head of the environment team at Weightmans LLP, predicts the key developments, trends and challenges facing the environmental legal sector in 2017.
What are likely going to be the most important cases in 2017, and why?
Climate change litigation such as Client Earth’s case against the UK government will be ongoing. The High Court has ordered the government to replace its ‘illegal’ air quality plans by July 2017 and to have draft plans in place by April 2017. If the government misses these deadlines, or if the plans are inadequate, further court challenges are likely to follow. We might also see challenges to the government plans to expand Heathrow Airport.
As the global oil price rises and fracking in England becomes more economic, I expect we will see more fracking activity. That will inevitably mean more challenges to the decisions of regulators to grant or refuse the consents required for fracking operations.
The relatively new Sentencing Council Guideline for Environmental Offences will continue to bite. 2016 saw the £1m fine glass ceiling broken on a few occasions. I expect we will start to see the courts getting braver and imposing even more significant fines in 2017.
What are likely to be the most significant legislative and regulatory developments, and why?
I think the most significant developments are likely to be on the policy front and at an EU level.
The government is due to publish its long-awaited Environment Plan 2025. The original publication date was in 2016, but that got pushed back as a result of Brexit. As we leave Europe we will leave behind the extensive framework of environmental policies that exist. The government needs to take urgent steps to fill that void and to provide a sense of direction. It will be interesting to see how far the Environment Plan 2025 goes and what its key areas of focus are.
The government is also due to continue work on its industrial strategy. It will be interesting to see the role that the circular economy plays in the new strategy and the significance attached to environmental considerations. Will these be secondary or will they be at the centre of the new strategy?
At an EU level, the Commission’s work plan for 2017 identifies the circular economy as an area of focus, so I expect to see more developments there.
How is Brexit likely to affect these?
Brexit has the potential to impact all of these areas, both directly and indirectly. If, as appears to currently be the case, we leave the EU and do not join the single market because of the hurdles in relation to the free movement of people, the government will have a significant amount of freedom when it comes to determining the scope and application of any environmental controls. If it chooses to do so, the government will be able to adopt a new approach to the regulation of activities that impact the environment. The likelihood is that the environment will sit too far down the ‘to do list’—and as a result will not get the time and attention it needs to properly develop and evolve.
The fact EU case law will soon no longer be binding will be relevant to climate change litigation.
Brexit will undoubtedly mean uncertainty and that could temporarily delay any new fracking projects.
The Environment Plan 2025 needs to take account of the external controls that will apply to the UK. The likelihood is that the plan will be formed on the basis that EU controls will no longer apply, which is the most likely outcome of the Brexit process. The plan should reveal the extent of the government’s ambitions when we go it alone.
In summary, 2017 looks set to be an interesting year from an environmental legal perspective—with a number of important and challenging developments—in the pipeline.
Interviewed by Tracey Clarkson-Donnelly. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
Source: LexisNexis Purpose Built
Environment— looking ahead to 2017
What are the implications of Trump’s presidency for climate change? Sebastien Korwin, a senior legal and policy advisor at Climate Law and Policy, warns that President Trump’s declared intention to withdraw from the Paris Agreement only reinforces the fear that the US will be more of a hindrance than a help in the fight against climate change.
