4. The MOD and Environmental Law
According to JSP 418, the MOD is committed to complying "with all environmental legislation" and "any additional requirements arising from international treaties and protocols to which the UK is a signatory". There are also some exceptions to this basic rule.
As mentioned in the previous section, the MOD no longer enjoys immunity from prosecution except in circumstances where it is deemed vital to sustain 'operational capability'. For example, there are defence exemptions to the recent Airport Controls Directives regarding aircraft noise, because MOD aircraft cannot comply whilst retaining the required level of operational performance. Action taken in such situations is described by the SofS for Defence's Policy Statement on Safety, Health, Environmental Protection and Sustainable Development in Defence (September 2010):
"Where there are exemptions or derogations from either domestic or international law applicable to Defence, we introduce standards and management arrangements that produce outcomes that are, so far as reasonably practicable, at least as good as those required by legislation.
Where there is no relevant legislation, our internal standards aim to optimise the balance between risks and benefits. This does not mean avoiding risks but managing them responsibly, on the basis of impact and likelihood."
In the policy context set out above, the MOD seeks to comply whenever possible with all Acts of Parliament as interpreted by the relevant regulations, rules and orders (except where it can demonstrate that it would be prejudicial to national security to do so).
Regulations of all kinds generally take the form of Statutory Instruments (available from the Office of Public Sector Information (OPSI)). These may be supplemented with guidance in the form of Codes of Practice or Circulars which, although not always legally binding, may also be given statutory status by Statutory Instruments.
In addition, there is a body of common law - sometimes called the 'law of precedent' - built up over many years from decisions made by the courts. Project Teams should be aware that it is possible for 'environmental' actions to be taken under common law irrespective of the statutory context. In fact, in some cases, action under common law will be the preferred route, whilst in other cases it may be the only route available.
For instance, under common law, if someone was bothered by noise from MOD activities they might pursue an action for nuisance against the MOD through the courts. Where a nuisance is proven to the satisfaction of the courts, then the normal remedy would involve:
- An injunction to restrict or prohibit the activities giving rise to that noise nuisance
- Financial damages based on the degree and nature of the interference caused
An argument employing the 'Defence Imperative' might be successfully applied to prevent an injunction. However, it is unlikely to prevent the award of monetary damages. In fact, where the Defence Imperative is successfully applied to prevent an injunction, this can possibly result in the award of higher monetary damages.
Much of the new environmental legislation arising in the UK comes as a direct result of EU legislation in the form of regulations, decisions or directives.
Regulations are directly legally binding upon Member States and do not need to be implemented through national law. They may not be binding upon the MOD or other defence forces and all activities of the state or Government. For instance, there may be exemptions to maintain airworthiness or for other safety and operational reasons.
Decisions are also legally binding, but they are generally targeted at a particular sector or area of activity rather than entire nations.
Directives usually outline a number of objectives which, though not legally binding in themselves, must be translated or 'interpreted' into national legislation and implemented in Member States by a particular date, often to meet objectives or targets specified in the legislation.
Environmental regulation can vary widely between countries and across continents. For example, parts of Asia, Africa, Central or South America and Eastern Europe have little or no environmental legislation, whereas the UK and USA regulate a wide range of environmental impacts.
"Overseas we apply UK standards where reasonably practicable and, in addition, comply with relevant host nations' standards."
((SofS) for Defence's
Policy Statement, September 2010)
It is the MOD's responsibility to educate itself with regards to relevant local environmental regulation and to ensure that it meets the relevant standards.
It can be difficult to predict the timing and scope of new EU and UK legislation. Although the MOD's Safety, Sustainable Development and Continuity Division (SSD&C) do not maintain a comprehensive and up-to-date legal register, they do monitor policy and legislative developments to identify any future measures likely to have consequences for the MOD.
Worldwide, it is likely that new policy initiatives combined with increasing levels of regulation will be used to drive up environmental performance. SSD&C acknowledges that this trend poses a major challenge and that future measures are likely to have a considerable impact across the MOD.
Of particular note are the Freedom of Information Act and the associated, more stringent, Environment Information Regulations that came into force on 5 January 2005. This legislation introduces the right of individuals to request information from the MOD, subject to the provisions of the Data Protection Act, including that about environmental performance. There are very few exceptions and even classified information is subject to a public interest test.
See Chapter 10 for further information on Freedom of Information and Environmental Information Regulations, as well as SSD&C and JSP 418 for more general information and guidance on environmental legislation.
Another piece of legislation that has recently had an impact on MOD activities is the REACH Regulations 2010. This legislation aims to improve the protection of human health and the environment through the better and earlier identification of the intrinsic properties of chemical substances. The MOD is taking the stance that the REACH Regulations apply to the organisation and its suppliers’ activities, unless there is a clear case for an exemption. DE&S has published guidance on the REACH Regulations and implementation (see Chapter 10).
Also of importance to MOD activities is legislation around waste management. As well as aiming to minimise the waste produced in the first place, the MOD must ensure compliance with waste regulations, such as the Duty of Care Regulations (i.e. handling and transport of waste) and Hazardous Waste Regulations (MOD waste will consist of hazardous components such as oils and heavy metals). As such the Project Teams and Front Line Command should work closely with the DSA to implement appropriate waste management options.
The SofS for Defence can 'disapply' legislation on the grounds of national security, for instance, during times of conflict. As part of the acquisition cycle it is important, however, to assess the potential environmental impacts associated with the use of military equipment in normal, abnormal and emergency situations, during intensive operations and on major exercises.
When environmental management is applied to military operations, the aim should be to assess the likely environmental risks in advance and to have appropriate control measures and risk management integrated into military activities.
Environmental risks associated with particular equipment will increase in times of conflict or exceptional operation. Take refuelling at sea for instance. A 'normal' situation would be a refuel in good weather. The task becomes 'abnormal' when taking place in rough seas but may remain within specified guidelines even though there is a greater risk of spillage or leakage and a need for extra mitigation measures. In an 'emergency' scenario the risk of an uncontrolled release will rise substantially, especially where refuelling is interrupted by a pipe failure or perhaps by the emergency disengagement of a receiving vessel coming under fire.
Environmental impacts may not be of great importance during emergency periods but their aftermath can be of grave concern. It is paramount that the likely environmental impacts of any equipment are known before deployment, even if this equipment must be deployed regardless of those findings. Knowing such information at an early stage allows much better planning of possible mitigation measures including safe and efficient pollution clean-up activities.
Calculating the potential environmental risk of equipment deployment at the acquisition stage is fraught with difficulty whether this occurs in peacetime or conflict. The severity of an impact can often be determined for a single incidence, but as the frequency of the impacts is unlikely to be known and usage will be determined by operational requirements, any assessment of significance may be educated guesswork at best.
An environmental assessment should provide commanders with assurance that their systems are environmentally sound for their intended military role, and with information to enable them to make good decisions when on operations. For military equipment, performance and reliability become part of the environmental characteristics when used operationally.
It may only be possible when reviewing deployment scenarios to provide a qualitative rather than quantitative assessment. However, qualitative analyses can still provide sufficient information to enable the MOD and its suppliers to take better precautions to minimise environmental impacts.
The user must be involved in discussions throughout the lifecycle, from setting appropriate environmental requirements through to managing risk and feeding back information on changes of capability requirement, desired changes of use or problems in service. As it is the service personnel who will be managing most environmental risks in service, they are an integral stakeholder throughout the whole EMS process and must have a major role in saying what level of risk they will be prepared to tolerate for the benefits which the capability provides.
Such decisions are taken by operational commands and are not within the scope of the ASEMS, although they may be influenced by information from that EMS. Equipment procured as an Urgent Operational Requirement (UOR) is needed to satisfy an operational imperative, or fill an urgent capability gap. Environmental management activities are still necessary and may have to be done in compressed timescales.
Whilst the operational use of equipment will be the responsibility of the relevant armed service, much can still be done during the acquisition process to curb environmental impacts and to provide information critical to the management of residual effects.
Environmental management is the MOD’s principal risk reduction process to protect the environment. To achieve this, environmental management must be a routine part of planning and executing operational missions.