Why we took the government to court – Inside track

This post is by Charles Watson, chairman and founder of River Action.

Having spent a 25 year career in the crisis management end of the public relations industry, I recall counselling clients repeatedly that litigation was never something to take on lightly and the risks, almost without exception, will always outweigh the rewards.

And then, on 4 February this year, I found myself sitting as a litigant in Cardiff Crown Court, as our King’s Counsel rose to his feet to open River Action’s judicial hearing case against the Environment Agency and the Department for Environment, Food and Rural Affairs (Defra).

A clue to why I had ignored my own better judgment lay in a beautiful glass vial of water that was sitting beside me in the court room. It had been drawn the previous day from the River Wye and was presented to me as I entered the courthouse by members of some of the Wye community groups who had (very noisily) joined us that day outside the courthouse to demonstrate their solidarity.

Once well protected, the river is now almost deadOften cited as one of our most loved rivers, the Wye rises high up in the Welsh mountain hinterland before flowing majestically through the English-Welsh borderlands to its mouth in the Severn Estuary. Our fourth longest river’s unique beauty and biodiversity has been recognised over the years by the award of some of the highest possible levels of environmental protection, such as its Special Area of Conservation status and the designation of swathes of its valley as Areas of Outstanding Natural Beauty.

But, devastatingly, within the space of less than a decade this magnificent river has become the UK’s Ground Zero of river pollution. One major cause has been the uncontrolled growth of the UK’s largest concentration of intensive poultry production, which has resulted in unsustainable quantities of toxic animal waste leaching into the river, causing untold ecological damage. Ninety five per cent of the Wye’s famous water crowfoot river weed has disappeared, snuffed out by putrid green algal blooms. Last summer, Natural England downgraded the river’s status to a level just one notch up from being pronounced dead.

It was for the Wye that we had gone to court.

To me, our legal case was incredibly simple. The environmental regulations that were there to protect the river had simply never been enforced by the very statutory bodies that were tasked to do so.

Failure to enforce farming rules has been catastrophicThe core of these regulations originated in 2018, when our then Environment Minister Michael Gove introduced the Farming Rules for Water. However, immediately on introduction, their non-enforcement farce began. Highly effective lobbying from the NFU ensured farmers were initially exempt from the new regulations, and then Michael Gove’s successor at Defra, Liz Truss, slammed the nails into the Farming Rules for Water’s coffin by virtually closing down farm inspections, thus eliminating all means of future enforcement, with agricultural regulation shifting to an almost exclusively ‘advisory’ basis.

The net effect of this approach on rivers like the Wye has been nothing short of catastrophic. Every six weeks, when the sheds containing the catchment’s 25 million chickens are ‘harvested’, huge quantities of highly potent manure are shovelled out and spread (for convenient disposal) across the fields of the catchment. As a result, the soils of the Wye Valley have progressively become saturated with totally unsustainable levels of phosphorus. And the rest is history.

In our view, had the Farming Rules for Water been properly enforced, none of this could have happened. Indeed, the most important of these regulations (Rule 1 a) states clearly that: “Application of organic manures… to cultivated land must be planned in advance to meet soil and crop nutrient needs and not exceed these levels”.

However, guidance issued by Defra to the Environment Agency (thanks to another NFU lobbying coup) specifically exempts farmers from having to follow this critical rule, thus creating another gaping loophole in the protections the Wye so desperately needed.

Major victories were won in courtIt was to challenge this terrible state of affairs that River Action went to court, with the case being heard in February in Cardiff. Here, our brilliant legal team squared up against the combined legal teams of the Environment Agency, Defra and the NFU (the latter having gatecrashed the proceedings at the last minute as an ‘intervener’).

Although, when judgment was passed down four months later and the judge ruled against us, it was apparent that River Action had won some major victories.

First, the judgment fully acknowledged that, due to the Wye’s severe levels of pollution, farming practices must change. Second, the legal status of the infamous guidance issued by Defra to the Environment Agency, was called into question, with the judgment that spreading manure in the autumn and winter should be limited, when the danger of polluting the river is at its highest, with the NFU’s intervention being unequivocally dismissed.

Finally, the judge made it clear that the overall basis of his dismissal of our claim was because changes to key enforcement policies made by the Environment Agency, during the course of River Action’s proceedings, subsequently brought it into compliance with the law, and that these changes were only made by the agency as a result of our claim.

Notwithstanding the above, we have immediately moved to appeal the judgment and continue the fight for the river. Given that the Environment Agency’s new enforcement policies apparently now bring it into line with the law, River Action will make it our business to audit the new approach, with Freedom of Information requests being dispatched on a rolling three monthly basis to enable us to monitor inspection and enforcement activities. Let’s see if the agency really has turned over a new leaf.

The new government should repeal the flawed guidanceFinally, following the judge’s questioning of the legal basis of Defra’s guidance to the Environment Agency, after the general election, the new Defra secretary of state will find, at the top of his or her in tray, our demands that this now discredited guidance is immediately repealed, or back to court we will go.

The turbid, slime-filled condition of the River Wye can only remind us how far we still have to go before the river stands a chance of being restored to its former glory. But, perhaps, by defying the odds (and all better judgment), we hope our travails through the courts might just have made a little bit of a difference in starting to reverse the repeated injustices that have been allowed to be inflicted upon this once magnificent river.