R (Fighting Dirty Ltd) v The Environment Agency and the Secretary of State for Environment Food and Rural Affairs

In R (Fighting Dirty Ltd) v Environment Agency (Environment Secretary), the claimant, an environmental NGO, sought judicial review of the Environment Agency’s (“EA”) decision to remove a “Target Date” from its Sludge Strategy without identifying a replacement. The Sludge Strategy, first issued in March 2020, concerned the regulation of sewage sludge spread on farmland. It proposed moving from the framework of the Sludge (Use in Agriculture) Regulations 1989 to the Environmental Permitting (England and Wales) Regulations 2016. The original strategy had included a target of 2021 for recommending legislative change, later updated in July 2020 to 2023. When the strategy was reissued in August 2023, no date was included. The claimant argued that the omission of a replacement date was unreasonable and unlawful. It maintained that the EA had itself assessed the existing regulatory regime as outdated and inadequate, and that removing the deadline effectively reinstated the “Do Nothing” option which the agency had already deemed unacceptable. It further argued that the EA failed to take into account material environmental risks, including emerging evidence of chemical and microplastic contamination, and failed to conduct sufficient inquiry into the consequences of delay. The EA and the Secretary of State contended that no statute required a target date, that the inclusion of earlier dates had always been aspirational given that regulatory change required ministerial action, and that collaboration with the Department for Environment, Food and Rural Affairs made the omission reasonable. They argued that setting an unrealistic date risked undermining the EA’s working relationship with government and frustrating progress. In his judgment of August 21, 2024, Fordham J dismissed the claim. He held that the EA had acted within its discretion under the Environment Act 1995 in reissuing the strategy without a new date. While recognizing that judicial review in environmental cases may warrant more searching scrutiny, the court found that the case did not involve an imperative urgency requiring a narrowed margin of discretion. The judge noted that the 2021 and 2023 targets had been missed, that any legislative change depended on ministerial initiative, and that the EA’s action could not fairly be characterized as adopting a “Do Nothing” approach, since the agency continued to press for regulatory reform. Importantly, Fordham J emphasized that environmental judicial reviews may attract a more intense standard of reasonableness review, extending beyond cases involving individual human rights. He stated that “public law protects rights, but also values and interests, including the public interest. This allows for an ecocentric standpoint; not just an anthropocentric one.” Nevertheless, applying careful scrutiny, the court concluded that the EA’s approach was lawful. The application was dismissed, costs were awarded against the claimant (£10,000), and permission to appeal was refused.