EXCLUSIVE: Lawyers maintain sewage reduction plan is ‘unlawful’ despite government deeming the legal challenge ‘hopeless’

The Good Law Project will proceed with its legal challenge against the government’s storm overflow plan, despite government lawyers arguing that the challenge is “hopeless” and “unarguable”, according to a letter seen by ENDS.

Source - GettyImages, Suriyapong Thongsawang

DEFRA published its Storm Overflow Discharge Reduction Plan at the end of August, which it is required to create under the Environment Act 2021. 

The government’s plan sets new targets for water companies. It states that by 2035 they will have “improved all overflows discharging into or near every designated bathing water; and improved 75% of overflows discharging to high priority sites” and that by 2050, “no storm overflows will be permitted to operate outside of unusually heavy rainfall or to cause any adverse ecological harm”.

Earlier this year, the Good Law Project, alongside Essex seafood business Richard Haward’s Oysters and surfer and activist, Hugo Tagholm, submitted a pre-action letter to the secretary of state, challenging the plan. 

The letter stated that the plan was “insufficient” for meeting the secretary of state’s legal obligations on three grounds: 

  1. The plan fails to discharge the secretary of state’s legal duty under Section 141A  of the Water Industry Act (1991), as amended by the Environment Act (2021), which imposes a duty on the secretary of state to prepare a plan to tackle storm  overflow discharges.

  2. The plan breaches various rights under the European Convention on Human Rights and is unlawful under the Human Rights Act (1998).

  3. The plan is contrary to the Public Trust Doctrine, which provides ancient common law rights for people to fish, gather food and navigate our shared waters. The Public Trust Doctrine is built upon the principle that the state has a fiduciary duty to safeguard vital natural resources for the benefit of both current and future generations.

The lawyers gave the government until 15 November to respond to the pre-action letter. 

In the response letter, seen by ENDS, the government’s lawyers have said that in relation to section 141A of the Water Industry Act, “there can be no serious doubt that the plan addresses the matters that it was required to address”. 

“It is a plan for reducing discharges from the storm overflows of sewerage undertakers in England and for reducing the adverse impacts of  those discharges”, the letter states, adding that “those points are unarguable and the secretary of state will resist any claim brought in  reliance upon them”. 

However, Good Law Project legal director, Emma Dearnaley said that they will be “progressing with the legal challenge to compel the government to rewrite its plan - which we maintain is unlawful”.

“We recently forced the government to go back to the drawing board on its Net Zero Strategy, and we believe we can win again to ensure our waters are protected.”

In the pre-action letter, the Good Law Project also argued that when Section 141A is understood in context of the Environment Act 2021 as a whole, the “plan does not  contribute meaningfully or at all to halting the decline in biodiversity by  2030, because the targets, insofar as they relate to 2030, are hopelessly  weak”.

In response to this, the government lawyers said that the 2030 target is “a separate provision, to be supported by  a range of targets on which the government consulted earlier this year”.

The government lawyers stated that these “two points are hopeless”. 

The Good Law Project also wrote that they consider that the plan breaches the second and third proposed claimants’ rights under  (respectively) Article 1 of the First Protocol to the European  Convention on Human Rights (ECHR), and Articles 2 and 8 ECHR. 

However, in the response letter the government said “it does not appear that any impacts that could arguably infringe human rights  have yet occurred”. 

“Paragraph 54 of your letter asserts that “[i]t is likely that discharges  will either continue at their current rate, or worsen (given the accelerating effects of  climate change), and that they will continue to be exacerbated by the inadequate  monitoring outlined earlier.” That is pessimistic speculation.”

The Good Law Project also said that the plan is contrary to the Public Trust Doctrine (PTD). 

In response to this, the government lawyers said that while it is accepted the public have common law rights to navigate and fish in the high seas and tidal water, the same right does not extend to recreation.

“Moreover – and critically – while those exercising such public rights should  not actively be prevented from exercising them, there is no authority to support the  imposition of a positive obligation on a landowner (or a public authority) to protect the  public rights, or to improve the circumstances in which they are exercised”, the government lawyers state.