Examination of Witnesses (Questions 66-79)
14 JULY 2004
MR TONY
JUNIPER, MR
MIKE CHILDS
AND MR
PHIL MICHAELS
Q66 Chairman: Good afternoon, ladies
and gentlemen. We are sorry to have kept you waiting a few moments;
we had some housekeeping to sort out. May I welcome our first
group of witnesses, from Friends of the Earth, Mr Tony Juniper,
Executive Director, Mr Mike Childs, the Political Co-ordinator
and Mr Phil Michaels, a Friends of the Earth's lawyer. It is always
worrying when people bring their lawyer with them; we had better
be careful what we say, otherwise we might be in some trouble!
As you know, we began this inquiry following our short, sharp
look at the difficulties that arose when Able UK entered into
an arrangement, seemingly to be able to dismantle American naval
vessels in Hartlepool but with the results that you know only
too well following from it. I think it might be useful, given
your particular interest and knowledge of these matters, if you
would update the Committee on how you see the current situation
in Hartlepool in the light of events?
Mr Childs: I can answer that.
Chairman, if we look back to where we started our work, it was
very much instigated by calls from people in Hartlepool for us
to intervene and to look at it; also, calls from fellow NGOs in
America who were concerned about the export of ships, and who
were saying to us, "We need your help here." We set
off with four objectives in mind, and I think in terms of reflecting
where we are at now we can look at those. One of the objectives
was to make sure that there were proper investigations in terms
of what the environmental impact may be on the special protection
area, the very key wildlife site adjacent to the planned Able
scrapping facility, and we are very pleased now that the investigations
have been carried out. So that seems to us a very good step forward
in terms of protecting one of our key wildlife sites and indeed
one of the key wildlife sites in Europe. The second objective
was about public participation in decision-making. The local community,
up to our involvement and indeed up to the court cases at the
end of the year, did not have any great opportunities to participate
in decision-making, to look at the proposals, look at the assessments
in terms of what the impact might be, and to comment. Now, because
those assessments are being carried out and planning permissions
are being applied for, they have their democratic opportunity
to participate in that decision-making process. That, again, is
a good step forward, we think. In terms of our third objective,
which I think is a principle where we come from, but recognising
that not everybody shares that, it is that countries should deal
with their own waste. Clearly four ships are over in the UK at
the moment and the other nine that are intended to come over to
the UK are in the US. They are held there awaiting court hearings;
environmental groups within the US are taking those court hearings
to try to prevent those ships being exported and, indeed, trying
to prevent the USA exporting ships anywhere across the globe because
that is an important point. They do not want those ships to come
across to the UK because they see that as, if you like, breaching
a barrier on export of these ships, which would then allow the
American administration to send them to developing countries which,
of course, we are firmly against, as I am sure is everybody. So
we are waiting for that court hearing as to what will happen in
terms of the US vessels. We also know, with interest, that some
of the vessels which were intended to come over and get scrapped
in the UK are now being scrapped in America where they have the
facilities to deal with them, and I think it was in the last few
weeks that the Head of the Marine Administration held a press
conference on one of those ships and said, "These are the
most parlous ships we have in the fleet. These are ships that
we need to get rid of because the environmental damage that can
be caused by these is very serious. So we are getting rid of these
now." I think that is a good sign in terms of America finally
taking some responsibility in scrapping those ships in the US.
Very briefly, Chairman, the fourth point in terms of where we
are coming from, is that we have worked for a long time with the
community in Teesside; we have employed a community development
worker up there, working around the chemical works in Teesside
and trying to engage with the chemical industry up there. It is
very much the view of the people that we speak to in the area—and
recognising of course that there will be different voices—that
they are feeling as though they are getting wave after wave of
polluting processes in their neighbourhood and feeling as though
that is not just, that is against environmental justice, and I
know that they have submitted evidence saying, "We think
we have enough here; we have the nuclear works, we have the chemical
works, the steel works, why should we take any more waste? Surely
these polluting processes should be more fairly shared around
in the UK?" So our fourth point is around environmental justice,
and I think that there has been more thinking and discussion about
that which, again, is a positive outcome.
Q67 Chairman: There are a couple of points
that you mentioned. First of all, that the area is overdone with
its burden of environmentally challenging activities, and the
view that was put forward by your local branch, Hartlepool Friends
of the Earth Media Group, said in evidence to the Committee, "We
do not feel that such large scale waste generating and potentially
hazardous ventures should be located in areas already blighted
by the negative effects of industrial pollution,"[1]
which I think accords with what you have just said, yet in paragraph
9 of your evidence to the Committee you said, "We have also
said on numerous occasions that should Able UK successfully demonstrate
that it can build and operate a dry dock scrapping facility without
damaging the protected wildlife sites or the wider environment
then Friends of the Earth could not reasonably object to the development."[2]
So in paragraph 9 you seem to be saying that if the facility can
be environmentally acceptable, best practice, et cetera, you are
happy to add ship breaking to the activities in that part of the
northeast. But the evidence you have just given and the view of
your Media Group seem to conflict with that somewhat.
Mr Childs: Chairman, I think the
difference is the way that Friends of the Earth structure themselves.
Our local groups are largely autonomous as long as they work within
the law and peacefully, and are pushing forwards in the right
direction. We think it is right and proper that we give them the
facility and the space to air their own views, and we are not
the ones from our position to easily say that that area is over
pressured. We want the local people to be involved in decision-making
there. They have made their views clear and I think that means
that they will be objecting to any applications. What we were
trying to say is that we have to look at the evidence in terms
of what is coming forward, in terms of the application from a
national perspective, recognising that we ought to be scrapping
ships somewhere in the UK. The only reasons we would see where
we could easily object to the location of facilities is if they
are going to be environmentally damaging. So I can see why there
is a difference of tenor there. I think it is an area that is
worth exploring.
Q68 Chairman: I wanted to take your mind
to how did we get here, because Able UK in their evidence to the
Committee have presented—and we will be talking to them
later this afternoon—the picture of a company who are certainly
aware of the environmental impact of their proposals[3]I
am assuming that they set off in good faith to bring these ships
to the United Kingdom, believing that they were going to deal
with them in a responsible way. You had the opportunity to look
at their original proposals; did you think that they were approaching
it in a responsible way? Do you think that they are a good company
or do you find areas of what they propose to cause you concern?
Mr Juniper: When we approached
this, as Mike suggested, we came from the perspective of concerns
being raised by the local community about yet more pollution potentially
coming to their doorstep, and to that extent we did not have a
prior view one way or the other about whether this was a good
proposal or not. But once we began to look at this we discovered
that there questions that had not been adequately dealt with as
far as we understood the law in terms of what was required, for
example, to implement effectively in this country the European
Union Habitats Directive that does require proper environmental
impact assessments to be carried out before an operation potentially
damaging to a site is granted consent and, for example, there
was a question there that ultimately we took further and it did,
it was shown, have a point in terms of raising a very valid question.
There were other issues too about, for example, the disposal of
the PCBs, one of the very toxic materials that would be brought
in in the fabric of the ships that would need to be disposed of,
which would be put into a landfill site. The fact that these kinds
of issues have not been properly explored led us to believe that
this was not yet an operation that would meet best standards or,
indeed, the requirements of British environmental law. So we took
the view that we needed to raise the issues that we discovered
in a way where there would be an effective remedy, which is what
we have now done. I do not think we would want to say one way
or the other whether Able UK is a good company or not; what we
want to do is to ensure that the environmental controls that we
have in this country are properly implemented to the benefit of
the environment and in ways that reflect the wishes and needs
of local communities. To that extent, Chairman, I do not think
that there is a conflict with what our local chapter is saying
compared to what we are saying. They are concerned about the protection
of their local environment; we are similarly concerned about the
protection of the local environment, and what we all want is for
high environmental standards to be adopted by industry.
Q69 Chairman: If I distil from that what
you are saying, it is that as long as things are done "properly"
in accordance with directives on national law then you would be
content to see a properly operated dismantling operation—in
this case it just happens to be Hartlepool, but that could apply
wherever and by whomever?
Mr Juniper: That would be a good
way of framing our approach but we would also wish to make sure
that there would be adequate representation of local community
concerns and any proposal that would be advanced in ways that
would affect local communities' interests, whether it be noise,
pollution, exposure to toxic chemicals or whatever. So it is an
important part of the democratic process, which goes beyond the
technical legal compliance.
Q70 Mr Lepper: Both Mike Childs and Tony
Juniper have laid great stress on democratic participation and
involvement of the local community in decision-making. Do you
have any gauge of the extent to which that has now taken place
since the involvement of Friends of the Earth in this particular
case? Either as crude a measure as responses to planning consultation
or anything else, that can point to the involvement of the local
community rather than of a small group of activists generating
concern?
Mr Childs: I can do. At the height
of the concern around this issue, at the end of last year the
local council held a number of hearings, which were very well
attended by local people—not just the activists but the
generally concerned individuals. So there was a degree of participation
there. The important thing is now that planning applications need
to be made, applications for waste management licences, legally
there is a duty to involve people in making those decisions so
that will happen, but, as I understand, Able UK have yet to make
their planning permission applications, so that will come later
on in the year. I am very pleased to say also that the Environment
Agency has already begun engaging with local communities. I met
some of the Environment Agency recently and they are now thinking
about how they can best involve local communities, for example
having a series of surgeries around the area, which would not
have happened previously. So it is certainly true to say that
there is more opportunity for engagement than there would have
been otherwise.
Q71 Mr Mitchell: In the "lessons
to be learned" review, which the Department proposed and
you supported, what do you think the most important lessons are
to be learnt from this fiasco?
Mr Michaels: I can start off on
that. There have been two reports produced now looking at the
lessons to be learned, the one by Defra, by Mr Ballard, and the
other one by the Environment Agency. We think the one by Defra
is a pretty thorough and robust analysis.
Q72 Mr Mitchell: That means to say you
agree with it, does it?
Mr Michaels: We do not necessarily
agree with everything in it, but it is quite impressive in its
thoroughness. We would agree with a lot of the conclusions it
reaches, and it is a shame that some of those conclusions are
not reflected in the Environment Agency's own internal report.
To highlight a few of the key areas, key lessons to be learnt,
the first has already been touched on, which is public participation.
The Habitats Regulations allow the Agency to involvement members
of the public and specifically to provide a mechanism for doing
that. However, in this case that opportunity was not taken up,
which is surprising considering the novelty of the application
and of course the public interest in what was going on, and participation
in this type of decision is, we think, absolutely crucial to good
environmental decision-making, and it goes beyond a mere process
point and actually contributes to better environmental decisions
being made. I think that is the first important lesson that does
not seem to have been picked up very clearly by the Agency. Another
important lesson is joined-up thinking. That has been touched
on both in the Defra Report and in the Agency Report, but it has
been dealt with in terms of joined-up thinking between the various
regulators. I think there is also a case for the Agency to look
at joined-up thinking internally. For instance, there were discussions
involving the Agency at the start of July, in which it was made
quite clear that there were real problems with the planning permissions,
and if that point had been picked up higher up within the Agency
at an earlier stage then none of this would have ended up in court
and a lot of subsequent problems could have been avoided; indeed,
the TFS, the Transfrontier Shipment, might not have been issued.
A third, broad point again relates to the speed with which decisions
are made or issues looked at in a situation like this. What I
say might be contradictory but in some sense the regulators move
too fast and in other cases they move too slowly. In cases where
they moved too slowly, which again led to these court proceedings
reaching the stage they did, is when the Agency obtained legal
advice but then did not actually act on that legal advice nearly
as quickly as they should have. Furthermore, the Agency did not
take the steps of advising the US authorities not to send the
ships over at nearly as early a stage as we think they should
have done. Friends of the Earth wrote to the US authorities on
a number of occasions saying, "You should not send the ships
over, there are very serious legal holes in the permitting structure
over here." Of course, perhaps unsurprisingly, the US authorities
did not take notice. I think had the UK regulators sent that sort
of letter at the time when we asked that they should then the
ships probably would not have set sail, with the avoidance of
much cost in court proceedings. By contrast, there is an argument
for saying that decisions were made too quickly to authorise,
to grant the permits when they were granted without sufficient
consideration being given to the environmental problems.
Q73 Chairman: Can I pick you up on a
point of detail which has come up in some of the discussions that
we have had with others on this about when is a ship waste and
when is it a ship? What seems to emerge is that if a vessel can
move under its own steam to a point at which then the owner decides
that it is going to be dismantled, it is not waste. What, in your
judgement, therefore, was the status of these American vessels
because, as I understand it, they made their way here under their
own steam? Therefore they seem to be a vessel and not waste.
Mr Michaels: I am certainly not
an expert on international waste law, but they did not make their
way here under their own steam, they were towed across. I do not
think there was any argument at all by anybody involved that they
were not waste. Certainly they were classified as waste by the
US authorities and by the Environment Agency here.
Chairman: That answers my question, thank
you.
Q74 Mr Mitchell: The chief lesson you
seem to have learnt, from what you said before that, is that everybody
else was wrong and Friends of the Earth were right.
Mr Michaels: That is a happy situation
for us to be in in one sense. We were vindicated in this, particularly
in law. Perhaps if I can quote from a final decision—and
there were of course four court judgments in this case—the
Judge said, "It is a matter of concern that it took the intervention
of third parties to expose serious deficiencies in the decision-making
processes of the public authorities that were responsible for
environmental protection. They [Friends of the Earth and the local
groups] have in effect discharged an environmental protection
function which the Agency failed to discharge." I say that,
not in any sense to put the boot in, as it were, to the Agency,
but to highlight the important role that NGOs and members of the
public can have in environmental decision-making and can have
in holding environmental regulators to account. I think that is
an important lesson.
Q75 Mr Mitchell: That is effectively
game, set and match to Friends of the Earth, but let me put another
point of view, as a political scientist. It was a marvellous pressure
group campaign because by manipulating possibly unrealistic fears
and a public panic you are able in fact to terrorise public bodies,
like the Environment Agency, like Defra and like Hartlepool into
a total reversal of policy.
Mr Juniper: I think the review
that we "manipulated" or "scare mongered"
needs to be challenged because we based all of the public statements
we made on official materials provided by American public bodies,
notably the Marine Administration, which had its own data about
the stage of the ships and the materials that they had embedded
in their structure, and these materials, including asbestos and
PCBs are hazardous and they do need to be dealt with properly.
Q76 Mr Mitchell: They can be dealt with.
Mr Juniper: The landfill site
where the PCBs were going to be put did not have permission for
PCBs to be put in that landfill site. We were listening with interest
when we heard the Minister address this Committee last November,
when he was talking about the high quality treatment of the PCBs
in incinerators, I think, and it subsequently proved the case
that they were going to be land filled. So it was not an academic
point that we were raising, we were raising real questions about
real toxic materials being disposed of in this country in real
landfill sites near to real people's houses, and it was a matter
of public concern and public interest that this was happening
without proper assessment of the kind that Phil has just described.
The reason these ships were so urgently departing the United States
was because of very serious concerns being raised by local communities
in Virginia, adjacent to where these ships were being moored on
the James River, and there was furious political pressure on decision
makers there to remove this environmental hazard from those local
communities, and the political choice taken was to remove the
hazard to that community to Hartlepool, to be disposed of. Under
some circumstances that may have been a good choice, but maybe
we will come to some of the discussions later on about what this
actually meant in terms of the situation in the USA, because it
was very far from straightforward in terms of what this meant
there. This was not a routine shipment, this marked a major change
of policy by the United States' administration, and set a precedent
which could have, may still have quite grave ramifications for
developing countries which, of course, was the other aspect that
came into this debate and is still there.
Q77 Mr Mitchell: There still is an argument
about the scale of the fears created and whether they were in
proportion to a realistic assessment of the problem, or the techniques
of disposal.
Mr Juniper: The Seal Sands Site
of Special Scientific Interest is designated under European and
International law as being—
Q78 Mr Mitchell: That is another matter.
These were fears of damage to the public, of PCBs next to your
house that you are just talking about, not the Site of Scientific
Interest.
Mr Juniper: There were a range
of environmental questions that were there; partly they were to
do with the integrity of the protected areas, partly they were
to do with the shipment and disposal of the toxic materials. We
placed in good faith into the public domain the best information
that we had available.
Mr Childs: In addition to that,
we of course talked to householders who live near that landfill
site because it is not that far away from houses, and we looked
on the Environment Agency's public register in terms of how well
that landfill was being controlled and there were scores of breaches
of licence conditions. So when the local people came to us and
said, "You should be aware that this landfill is not squeaky
clean, it is not state of the art," then of course that is
something that we needed to take account of. The other aspect
of course is that one of the reasons why it got widespread media
coverage is because it is a great story in many ways; you have
great photographs in there.
Q79 Mr Mitchell: They became "toxic
ships" as if they were nuclear radiating ships that were
being chugged into Hartlepool Harbour and all the inhabitants
would die. It was the scale of the thing that was quite disproportionate.
Mr Childs: If you look to the
words that we were using, the quotes that we made and all the
press releases we made, we based those on the facts and the evidence
that was coming from the States. Of course the media can sometimes
run away with itself and exaggerate issues, but the words that
we used, the press releases that we used, every single interview
we used was based on the evidence that we were getting from the
United States, either the official regulators or the evidence
we were gathering ourselves together with the local people.
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