Environment – Mining waste – Permit – Variation – Claimant seeking judicial review decision of defendant Environment Agency to grant variation to environmental permit relating to mining waste activities involving hydraulic fracturing – Whether defendant breaching statutory requirements – Whether defendant breaching duty to encourage use of emerging techniques – Whether defendant failing to consider claimant’s representations during consultation process – Application dismissed
The claimant applied for judicial review of a decision of the defendant agency to grant a variation to the environmental permit granted to the interested party in 2015 relating to mining waste activities involving hydraulic fracturing at Preston New Road, Lancashire. The only variation that was in issue by the time of the hearing was a variation that changed the rate at which fracturing fluid could be injected into a well during the hydraulic fracturing phase.
The claimant contended that: (i) the defendant had breached the requirements of the Environmental Permitting (England and Wales) Regulations 2016 and the Mining Waste Directive (2006/21/EC) (and the Industrial Emissions Directive) by failing to give any or any adequate consideration to whether electrocoagulation would constitute a best available technique (BAT) for the treatment and re-use of flowback fluid as part of the permitted activities under the varied permit; (ii) the defendant had breached its duty to encourage use of the emerging techniques at the site when deciding whether to grant the variation; and (iii) when considering whether to grant a variation of the permit, the defendant had failed to consider the claimant’s representations made during the consultation process that electrocoagulation was BAT for managing flow-back fluid.
Held: The application was dismissed.
(1) The process for obtaining a permit for a mineral waste facility was set out in the Mining Waste Directive (2006/21/EC). The Environmental Permitting (England and Wales) Regulations 2016 referred back to the Directive, so it was the interpretation of the Directive which was critical. Any application for a permit under article 7 of the Directive and para 3 of schedule 20 to the 2016 Regulations had to be accompanied by a waste management plan (WMP). The defendant had to consider whether to approve a WMP and an application for a permit could not be granted unless and until the relevant WMP had been approved. An application to vary a permit had to be accompanied by a WMP. However, there was nothing in the Directive which said that an application to vary an extant permit had to be accompanied by a new, varied or amended WMP. There was also nothing in the Directive or the 2016 Regulations that automatically required the defendant to reassess a plan that had already been approved. Paragraph 6 of schedule 7 to the 2016 Regulations and para 12 of schedule 20 did not assist the claimant as they were entirely general requirements, not linked in any direct way to the specific decision to grant a permit or a variation to a permit. Further, article 4 of the Directive contained a general obligation which could not in itself mean that the defendant was required to reassess every aspect of an operation on each and every occasion that an operator sought a variation, however minor, of an existing permit. Under para 7 of schedule 20, the defendant had to exercise its functions so as to ensure compliance with the named articles. It did not alter or extend the duties under the Directive.
(2) Article 5(4) of the Directive expressly provided for the WMP to be reviewed every five years or if there were substantial changes to the operation of the waste facility or to the waste deposited. That was the process by which the WMP was updated, and any changes in BAT were taken into account in a controlled and predictable fashion. Similarly, under article 7(4) of the Directive there was a requirement to reconsider and, where necessary, update permit conditions where there were substantial changes in the operation of the facility or the waste deposited. What amounted to a “substantial change” was defined in article 3(29). Each bullet point in article 7(4) cross-referred to other parts of the Directive and created a comprehensive set of circumstances where the defendant had to reconsider permit conditions.
Article 5(4) created a clear threshold and there could be no basis for the court to supplement that with the test proposed by the claimant which would create considerable uncertainty. The claimant’s argument was contrary to the words and scheme of the Directive, as it would be imposing a duty to reconsider the WMP and potentially vary conditions even where, as here, there was no substantial change to the operation of the facility. The claimant’s analysis was also contrary to the overall approach of the Directive. The circumstances in which an approved WMP had to be reviewed or amended were set out exhaustively in article 5(4) and the defendant was not required to reconsider or review the WMP in this case, there being no substantial changes to the operation of the waste facility.
(3) In considering the proposed change, it was plainly relevant that the change in question brought the permit into line with the WMP, not least because article 7(3) required the permit to be refused if it contradicted the WMP which imposed no constraint on the number of stages of fracking per day. However, the defendant had considered the change in its own right and reached the conclusion that it was not significant. Where the defendant was not under a duty to reconsider electrocoagulation as BAT, it was entitled to describe the issues raised as being the same as those raised before, and was not obliged to deal with the points in detail.
(4) It was highly likely that the outcome of the variation decision would have been no different if the defendant had given full consideration to whether electrocoagulation was now BAT for the proposed operations at the site. Whatever its approach to scheduled hydraulic fracturing stages, the interested party would be confined to the volumes of hydraulic fracturing fluid set out in its varied permit. The concern regarding allowing multiple fracturing stages per day was not warranted.
Matthew Reed QC and Matthew Dale-Harris (instructed by Friends of the Earth Ltd) appeared for the claimant; Tim Buley (instructed by Environment Agency Legal Services) appeared for the defendant; Nathalie Lieven QC (instructed by Herbert Smith Freehills LLP) appeared for the interested party.
Eileen O’Grady, barrister
