Corporate Industrial Risk
Brexit or no-Brexit, deal or no-deal, transition or cliff-edge, it doesn’t really matter when it comes to Corporate Industrial Risk under 21st century pollution, waste and contamination law. The exposure will always be there. Although the UK joined the then EEC in 1973, the last two decades have seen an explosion of EU legislation, and case law from the European Court, which has left a lasting impression on our entire legal system and our substantive environmental and industrial law, with huge expansion of EU environmental regulation of just about every industrial sector of the business world.
The most obvious example is the enormous industrial permitting and regulation regime now codified in the EU Industrial Emissions Directive 2010, currently transposed in English law by the Environmental Permitting (England & Wales) Regulations 2016 and in Scotland by the Pollution Prevention and Control (Scotland) Regulations 2012. However, this EU emissions and permitting regime is underpinned by a plethora of other EU legal regimes on areas such as air pollution, water pollution, contaminated land, chemicals and hazardous substances, climate change, environmental liability from industrial processes, and of course commercial and industrial waste.
Vincent Brown is an experienced adviser in these areas, having advised clients across several industrial sectors for over 20 years and studied closely the transposition and practical effects of these laws in member state legal systems in both his Masters’ degree thesis in EU law and in his work for the European Commission examining the compliance of a number of non-UK Member States with the entire body of EU environmental law.
Effects of Brexit? Not a lot. The current EU Withdrawal Act 2018 explicitly retains most of this EU law as post-exit UK law, and anyway it is a fundamental misconception to think that tight environmental regulation of industry is all sourced from Brussels: on the contrary. Some of our most eye-watering liability cases in the UK have come from UK regulators applying UK law, even centuries-old English common law.
In addition, and strange as it may seem, liability can still hit an industrial operator which is fully compliant with the law and regulation of its own activities, even where it is in full compliance with environmental permits issued by environmental regulators. Liability can even attach through contaminated assets that have been sold off. In other words, liability in this area is often a question, not of unlawful activity or even negligence or shoddy practice: it can and does occur through sheer bad luck. Thus you can still have liability even for doing things that you are expressly permitted to do or which someone else did. This ‘strict liability’ arises under both EU and UK liability regimes and under UK common law, and it was reinforced by the Court of Appeal in a 2012 case involving a national waste operator.
Good business sense merits a periodic ‘health check’ of the corporate asset/activity risk. This can apply as much to the owners of operations or sites that have ceased operating as they can to active operations. It is especially important if there is any aspiration to sell the company or seek further investment. Latent environmental risks can scupper such plans or render them significantly less valuable.
The sort of service deliverable which might be appropriate for your business is necessarily bespoke, and it can range from one question about one particular risk exposure through to a more complete liability risk ‘health check’ on industrial assets and operations.