Health and Safety Sentencing in the UK: A Border Divide?

The Definitive Guideline for Health and Safety Offences, which came into force on 1 February 2016 (2015 Guideline), must be applied when sentencing cases in England and Wales. Being separate and distinct legal jurisdictions, the courts of Scotland and Northern Ireland are not bound to follow the 2015 Guideline.

Historically, Scottish courts have still recognised the relevance of the Sentencing Council’s (England and Wales) guidelines, including the Corporate Manslaughter & Health and Safety Offences Causing Death: Definitive Guideline 2010 (2010 Guideline). In the case of Scottish Sea Farms Ltd v HM Advocate 2012 HCJAC 11, it was held that although the “[2010] guidelines have statutory effect only for England and Wales [they] may be noticed for the purposes of sentencing similar cases in Scotland”, and both the aggravating and mitigating factors within the 2010 Guideline were considered. At the time it appeared that the 2010 Guideline had been adopted, at least in part, in Scotland. In the courts of Northern Ireland however, it is much more difficult to determine whether the 2015 Guideline has had an impact on the sentencing of health and safety cases. The Health and Safety Executive for Northern Ireland has published only four health and safety cases sentenced since April 2016, highlighting that the maximum a company has been fined since April 2016, in a Crown Court for a single health and safety offence under Northern Irish legislation, is £5,000. This appears extremely low, and indicates that there may be an emerging trend that while England, Wales and Scotland are following the Sentencing Council’s Definitive Guideline, Northern Ireland is not. Continue Reading

UK Government Issues Guidance on Minimum Energy Efficiency Standards for Leased Property

Energy and Electricity

Beginning 1 April 2018, under the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 (commonly referred to as the MEES Regulations), non-domestic landlords must ensure that any properties they rent out in England and Wales have an energy efficient rating of at least an E (using the A-G rating system from Energy Performance Certificates (EPCs)). This requirement will apply on the grant of a tenancy to new tenants, or a renewal with existing tenants after that date.  These requirements will extend to all such properties, even where there has been no change in the tenancy arrangements, from April 2023.

The UK government has recently issued Guidance for landlords on how the MEES Regulations are expected to operate and the implications for landlords who do not meet the requirements.

If you are a landlord of non-domestic properties, then it is important act now and consider how this will affect your leased properties. Key issues to consider are:

  • Which types of properties are affected. Most buildings in which energy is used to condition the indoor climate will be caught (ie those buildings for which an EPC is legally required when a property is sold or leased). Leases for less than 6 months or more than 99 years are not covered. There are a few exceptions for specific types of building, for example places of worship, but these are limited in application.
  • What improvements can be made if you have properties that are rated F or G. The Guidance provides further details of how to identify ‘relevant improvements’ and to work out if they are cost effective to install. There is a seven year pay-back test which is applied to assess if a measure is a ‘relevant improvement’.
  • If you have any properties which cannot be brought up to standard despite having ‘relevant improvements’, or where no cost effective measures can be identified, then you can register a 5 year exemption on the PRS Exemptions Register.
  • Implications of non-compliance. Compliance notices can be served requiring information to be supplied. Financial penalties can be imposed on landlords of non-compliant properties, with potentially very high fines for long-term breaches on high value properties (because the fines can be linked to rateable value). There is also a system for publishing details of non-compliant landlords.

An in-depth analysis of which properties are affected, the importance of reviewing your portfolio, the sanctions resulting from non-compliance, and the cost and letting implications of the MEES Regulations over the coming months is provided by our real estate colleagues here: “MEES – Landlords, It’s All About You

D.C. Circuit Declines Review of US EPA Practices on Blending and Mixing Zones

DrainOn February 28, the D.C. Circuit in Center for Regulatory Reasonableness v. US EPA dismissed a challenge to statements made by the US EPA regarding two wastewater treatment techniques – blending and the use of mixing zones. US EPA previously prohibited these techniques in specified circumstances, and in 2013, the Eighth Circuit vacated these prohibitions in Iowa League of Cities v. US EPA. US EPA elected to not appeal the Eighth Circuit’s decision. The challengers argued that US EPA also attempted to limit the precedential effect of the decision by issuing statements that the decision applied only in states under the Eighth Circuit’s jurisdiction and by refusing to follow the decision elsewhere. The D.C. Circuit’s decision arguably allows the prohibitions on blending and mixing zones to stand in states other than those in the Eighth Circuit.

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Are Changes on the Horizon to the Deference Historically Afforded to US Administrative Agencies?

As we have previously discussed on this blog, a cornerstone of US administrative law, Chevron deference, is in flux.  That fluctuation and its eventual resolution will impact US businesses, including in the promulgation of critical environmental regulations.  Chevron deference describes a doctrine articulated by a unanimous US Supreme Court in its 1984 decision, Chevron USA, Inc. v. NRDC.  The late Justice Scalia—a former administrative law professor and sometime defender of Chevron deference—articulated the doctrine in a 2015 decision as follows: “Chevron directs courts to accept an agency’s reasonable resolution of an ambiguity in a statute that the agency administers.”  Justice Scalia also noted in a different 2015 decision that Chevron deference “provides a stable background rule against which Congress can legislate.”  Finally, though his views evolved over his career, Justice Scalia explained in a different context, that the deference is grounded in the notion that agencies, unlike courts possess “expertise,” an “intense familiarity with the history and purposes of the legislation at issue,” and a “practical knowledge of what will best effectuate those purposes.”

All that may not matter. Developments at the US Supreme Court or Congress (or both) could result in a fundamental change or wholesale elimination of the doctrine. Continue Reading

UK Green Paper on Industrial Strategy: Environment Safety and Health Implications

The UK Government has published a Green Paper on Industrial Strategy, which identifies a number of challenges over the coming years, including: building on existing strengths and extending excellence into the future (with reference to the UK’s global reputation in industrial sectors – from automotive and aerospace to financial and professional services and the creative industries); ensuring that all areas of the country meets their potential by working to close the gap between our best performing companies, industries, places and people and those which are less productive; and to make the UK one of the most competitive places in the world to start or to grow a business. Consultation on the Strategy closes on 17 April 2017. Continue Reading

What does Brexit mean for the Circular Economy?

Circular EconomyOne area of EU law which is developing rapidly relates to improving the circular economy. There are a number of legislative proposals in the pipeline, but with the prospect of the UK leaving the EU in the next few years, what are the implications for these circular economy initiatives, and could there be opportunities for the UK to move ahead in any respects?

What is meant by Circular Economy?

The circular economy is “an alternative to a traditional linear economy (make, use, dispose) in which we keep resources in use for as long as possible, extract the maximum value from them whilst in use, then recover and regenerate products and materials at the end of each service life.”

The circular economy affects all stages of the supply chain, from design for recyclability and reuse, through more efficient production and pricing to reflect recyclability, to increased recycling and recovery, and more use of secondary raw materials. There are widely acknowledged benefits for consumers, businesses, the environment and the economy.

Boosting the circular nature of the economy entails adjustments to legislation in a variety of policy areas. In the EU, this is being led through the so-called Circular Economy Package. Continue Reading

Coalition Seeks to Compel US EPA Action on States’ Impaired Waters Listings for Lake Erie

A coalition of environmental and conservation groups have given US EPA notice of their intent to sue over the Agency’s failure to timely review Ohio’s and Michigan’s biennial impaired waters listings. Under §303(d)(2) of the Clean Water Act (CWA), US EPA is required to approve or disapprove a state’s proposed list of impaired waters not meeting water quality goals within 30 days of submission.  The Integrated Reports containing Ohio’s and Michigan’s impaired waters listings were sent to US EPA well over 30 days ago, with Ohio’s being sent on October 20, 2016 and Michigan’s on November 10, 2016. Continue Reading

US EPA Issues Proposed TSCA Risk Evaluation Rule

The US Environmental Protection Agency (US EPA) has issued its proposed rule outlining the process by which it will conduct risk evaluations on chemical substances under the recently amended Toxic Substances Control Act (TSCA), to determine whether the substances present an unreasonable risk of injury to health or the environment under the conditions of use.

The proposed rule was published in the Federal Register on January 19, 2017. Comments on the proposed rule must be submitted to US EPA by March 20, 2017. The amended TSCA requires US EPA to promulgate the final risk evaluation rule by June 22, 2017.  Details on the proposed rule and its implications can be found here.

US Mine Safety & Health Administration’s Newly-Issued Workplace Examination Rule Withdrawn Pending OMB Review and Approval

In the final days of the Obama Administration, the US Mine Safety and Health Administration (MSHA) released the much anticipated “Examinations of Working Places in Metal and Nonmetal Mines” final rule amending 30 CFR Sections 56.18002 and 57.18002.  The final rule was published in the Federal Register on January 23, 2017 with an effective date of May 23, 2017 notwithstanding a broad regulatory freeze affecting all federal agencies issued on January 20, 2017 by President Trump’s Chief of Staff.

Circulated just hours after the inauguration via memorandum to the heads of all executive departments and agencies, the President’s regulatory freeze directive immediately halted the issuance of any new regulations, except those required for emergency situations or to address urgent health, safety, financial or national security matters, pending review and approval by the Office of Management and Budget (OMB) or a department or agency head appointed by President Trump.  The directive explicitly includes regulations that were sent to the Office of Federal Register but not published prior to January 20, 2017, which presumably applies to the final workplace examinations rule.  MSHA officials confirm that the final workplace examination rule has been “pulled back” for review in accordance with the directive.  Given President Trump’s commitment to reducing regulatory burdens on US companies, it is possible that the workplace examination rule, which imposes a number of burdensome new requirements on operators, will be revisited. We will update this post as more information becomes available.

President Obama’s Public Land and Coastal Drilling Withdrawals; Could They Be Overturned By The Trump Administration?

As his administration drew to a close, President Obama invoked his executive authority to set aside large swaths of the Western US and the Atlantic and Arctic Oceans from future development.  On December 28, 2016, President Obama established the Bears Ears and Gold Butte National Monuments in Utah and Nevada, respectively, setting aside nearly 1.5 million acres under the Antiquities Act of 1906.  During his presidency, President Obama invoked the Antiquities Act 29 times—more than any other president—to expand or create national monuments.  President Obama also protected the largest area of any president, with designations totaling 266.5 million acres—more than double any prior president.

In addition, on December 20, 2016, President Obama withdrew about 115 million acres of the US portion of the Arctic Ocean and about 3.8 million acres of the US portion of the Atlantic Ocean from mineral leasing under the Outer Continental Shelf Lands Act.  The drilling ban does not affect existing federal leases and also does not apply to a 2.8 million-acre area of the Beaufort Sea near the Alaskan coast next to existing oil and gas infrastructure.  Nevertheless, the ban represents the first time any president has used the Outer Continental Shelf Lands Act, which was passed in 1953, to indefinitely withdraw such a large coastal area from mineral leasing.

Republicans and industry trade groups have already threatened to challenge President Obama’s use of the Antiquities Act of 1906 and the Outer Continental Shelf Lands Act.  However, any effort to undo the recent designations will likely require the help of Congress.  While both the Antiquities Act of 1906 and the Outer Continental Shelf Lands Act expressly delegate to the president authority to withdraw public lands and coastal areas, neither statute delegates to the president authority to undo the withdrawals of a prior administration. Continue Reading

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