How the High Court could bring a quick end to sewage pollution

Sewage pollution could be brought to a rapid end after the High Court began a hearing which environmentalist groups hope could entirely upend the water industry.

If the case, which began on Tuesday morning, succeeds, water companies could end up footing an enormous bill to immediately clean up England’s rivers.

Central to the case, brought by campaigning charity WildFish, is ripping up Thérèse Coffey’s plan to eliminate sewage spills by 2050.

The argument that WildFish’s lawyers will make rests on two key ideas. First, that what water companies are doing is already illegal under regulations from 1994 and that Ms Coffey’s reduction plan contradicts those regulations by allowing pollution to continue until 2050.

Second is that Ofwat requires water companies to pay to make their infrastructure compliant with existing laws, not the billpayer. But under Ms Coffey’s vision, much of the £56bn cost of stopping discharges falls on customers through their bills.

In short, WildFish claims that Ms Coffey and previous environment secretaries, going back three decades, have simply failed to enforce the law to clean up rivers.

“It is time for the Government to end its ‘smoke and mirrors’ approach to environmental regulation once and for all and make the water companies do what they have promised to do, and have been required to do by law, for nearly 30 years,” said Nick Measham, chief executive of WildFish.

“This must be at their own expense. Our wild fish, our rivers and all of us have had enough.”

The Government’s lawyers are expected to reject the idea that the law has not been enforced, in part on the basis that the 1994 regulations allow for discharges in “exceptional circumstances” and the use of “best technical knowledge not entailing excessive cost” to prevent them.

The Department for Environment, Food and Rural Affairs (Defra) estimates that ending all discharges could run into the hundreds of billions of pounds.

Indeed, the case may hinge on how the presiding judge interprets whether water companies have been making use of best knowledge and if the hundreds of thousands of spills a year are genuinely due to exceptional circumstances.

If WildFish does succeed, Mr Measham believes it could have wide-ranging consequences for the water industry. It could mean water companies being forced to take immediate and very expensive action to end discharges and without hitting customers – something the market might not support.

“It threatens to lump companies with a hefty bill,” he told i. “It could be that shareholders, debt holders get wiped out. That’s called capitalism. That’s tough. Or they could put more money into the companies.

“If they don’t, then there could be nationalisations without compensation because the companies have failed. Although, I suspect, ultimately, the investors will put more money in, because otherwise they’d lose everything.”

A study published last week found that water companies were “environmentally insolvent” and would go bust if forced to pay the full cost of a cleanup.

Water UK, the industry body, declined to comment on an ongoing case. Defra sources pointed out that the Storm Overflow Reduction Plan was the largest investment programme in water industry history to improve our water quality and that it included clear provisions to ensure no disproportionate impact on customer bills.

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It remains unclear how likely the case is to succeed. The Government has, in recent years, suffered several defeats in the High Court, most notably over a lack of detail in its net zero plans which forced a rewrite, and on air pollution laws.

WildFish’s case is not the only one that Government lawyers are defending against. A separate case, backed by the Good Law Project, has been brought by the Marine Conservation Society, an oyster farmer and Hugo Tagholm, a marine campaigner.

That case relies in part on a medieval common law principal dating to 1299, known as the Public Trust Doctrine. It holds that the state has a fiduciary duty to protect natural resources and hold them in trust for future generations.

The suit hopes to revive the doctrine, as it was in the United States in the 1980s. If successful, it could have broad implications for all the Government’s environmental policy, leaving it open to challenge if nature is deteriorating.

The Government’s lawyers are expected to argue that interpreting the law in such a way would be a radical and unwarranted expansion of the legal principle.

Defra declined to comment at this stage of the WildFish legal proceedings.