Fighting Dirty Limited is a not-for-profit organisation which seeks to hold public bodies accountable for their decision-making regarding pollutants entering the waterways.
Fighting Dirty recently brought a landmark case against the Environment Agency (EA) in the Administrative Court. The claim sought to challenge the EA decision to abandon a commitment to test sewage sludge for contaminants before it is spread as crop fertiliser.
The background concerns an earlier 2017 EA Report which found that English crops were subject to unacceptably high levels of contaminants.
Belatedly, in 2020, EA committed to implementing a new policy which would require all sewage sludge to be tested for microplastics and ‘forever chemicals’ before being sold (by water companies) to farmers for spreading as fertiliser.
By July 2023, no formal legislative or regulatory policy had been implemented.
Previously, the EA had set target dates for the implementation of its ‘sludge strategy’, which was first issued in 2020 with a 2021 being the target for implementation.
When it became apparent that this would not be met, the target date was moved to 2023.
Midway through 2023 it was clear that the implementation was no longer achievable within the calendar year, and so the target date was removed without a replacement.
It is this action which was challenged by Fighting Dirty Limited. Was the absence of a target date, considering previous targets had been provided (yet were not achieved), unreasonable?
The three primary purposes of the Sludge Strategy were stated to be:
- To modernise and clarify the regulatory framework
- To develop a consistent approach with the water and waste industry
- To identify and assess emerging risks within the industry.
Sludge was defined as ‘a semi solid slurry that can be produced from a range of industrial processes, from water treatment, wastewater treatment or on-site sanitation systems’ by a representative of Defra.
Given this wide-reaching definition of sludge, the sludge strategy was to provide much needed clarity and coherence to the existing regulations regarding the storage, use, and disposal of sludge, depending on its composition.
Fighting Dirty argued that “prime farmland [is] becoming contaminated every year with a cocktail of toxic chemicals, with scarcely any testing or documentation. The Government knows this is wrong, but it has serially failed to keep its promises to take action [on] this regulatory black hole”
A 2020 report by AECOM concluded that samples of sludge were found to be contaminated with harmful chemicals, and often were not as described on the consignment documents. This naturally presents a significant issue when considering what the sludge may be used for, resulting in damage to agriculture due to microplastics, or a risk to public health if pollutants are released into public watercourse.
Justice Fordham, passing Judgment on the matter, considered the internal communications and processes within the EA and Defra, and these were no doubt contributing factors in the Judgment.
Clearly, the EA and DEFRA had considered bringing a new target date in, however ultimately decided it was not in their interest to provide a further date knowing that it would likely be unachievable.
Therefore, the EA could not plausibly be considered to have acted unreasonably.
The decision handed down by Justice Fordham is perhaps not unexpected to the cynical observer.
On the other hand, consumers are entitled (and expected) to be alarmed.
In these modern days of nutritional scrutiny, characterised by healthier lifestyles, compulsive hygiene, presentational cleanliness, environmental agendas, and commercial profiles – it is surprising that the contaminants at the very source of the food chain are largely absent of any significant reporting or regulatory protection.
It seems that challenging a public authority decision cannot succeed merely on sentiment, shock, or importance to fundamental public and environmental health.
The decision must cross the high threshold that is needed for public agencies to be deemed to have acted unreasonably, irrationally, or unlawfully.
This leaves a large question mark around public expectations.
Can the public reasonably expect Government agencies to legislate promptly and decisively on fundamental issues?
Do citizens have a legitimate expectation to see polices enacted to protect public and environmental health?
Who should be held accountable? Is this more than just an EA and Defra issue?
The practical implications of this decision may be seen in time to come.
Given the difficulties that many public bodies have with meeting deadlines, securing funding and justifying resource allocation – will target dates become a thing of the past?
At Dyne Solicitors we specialise in Environmental Disputes. We offer advice and representation for regulatory, commercial and property litigation in the environmental and waste sectors. For more information, please contact Alex Sandland or Patrik Jones-Wright.