Legal Connection

Gordon Nardell QC is a barrister at Thirty Nine Essex Street Chambers, a set of over 90 barristers with a cross-cutting practice in environmental, commercial, regulatory and construction law.

Gordon specialises

in EU and international law affecting the energy, infrastructure and transport sectors. Before taking silk he served on the Attorney-General's panels of Crown

advocates. Gordon is an accredited mediator and a member of the LCIA arbitrators' panel. Gordon was formerly a commercial litigation solicitor. Before moving to the Bar he practised at the Council of Europe and later the UK Parliamentary Counsel Office, where he was a member of the drafting teams for the Competition Act 1998, Human Rights Act 1998 and Financial Services and Markets Act 2000.

Gordon deals with a range of commercial dispute resolution and advisory work in the fields of environmental and energy law.

Q

What are the main areas of Environmental Law that you have

experience in?

Most of my work involves energy projects. I handle disputes triggered by regulatory and liability problems, often caused by conflicts with European environmental law and its equivalent in other regions such as Asia and the Middle East. I also deal with waste, carbon emissions and other environmental issues affecting business. My practice also includes Parliamentary work. I have worked with the UK energy and utilities sector helping to shape important legislation, including last year’s Localism and Energy Acts.

Q

What are the main legal issues businesses need to consider with

regard to Environmental Law?

Environmental law is about understanding risk. Legislation enacts policy, so businesses need to be aware of where environmental policy is heading. But legislation co-exists with judge-made law, which is under constant development and doesn’t always point in the same direction as legislation. These problems can materialise long after projects have been set up. So the question becomes: how do your contract and funding arrangements accommodate this risk? Who bears the burden

if, say, a challenge to a consent for a wind farm delays the project or increases costs? Where do sunk costs fall if the project is derailed?

Is there a recent case that you can comment on, in regards to Environmental Law?

Q

My chambers were involved in Barr v. Biffa, a decision of the Court of Appeal earlier this year. Neighbours of a waste facility successfully claimed damages for nuisance even though the operator was in compliance with its environmental permit. This is an example of an unexpected change in the relationship between judge-made law and statutory regulation. It had been received wisdom that the terms of a permit or consent were a starting point in assessing the reasonableness of environmental impacts. Barr overturned this. A permit is not a licence to cause a nuisance. Many overseas jurisdictions absorb English law, so similar liabilities may now land at the feet of projects elsewhere.

Q

What challenges are raised when complying with environmental

regulations? How can you assist your clients to navigate these challenges?

Familiar legislation can throw up unfamiliar problems. This happens a great deal with EU law because of its complexity and because its interpretation is under constant review by the courts. Small, avoidable errors at the early stages of a project can cause irreparable harm, and contracts often fail to deal properly with compliance risk. Barristers are increasingly asked for advice at the outset of a project to help identify risk areas and head off costly downstream disputes.

or does it impede the success of a com- pany?

Q Businesses with a large

environmental footprint must accept that the law has to strike a bal- ance between their opera- tions and the people and

Gordon Nardell QC Thirty Nine Essex Street Chambers Tel: 020 7832 1134 Email: gordon.nardell@39essex.com

Do you feel environmental regulations are helpful to business,

places affected. But environmental law is also an opportunity. The shift towards a low carbon economy with high standards of nvironmental protection means that businesses who adapt and make forward-thinking investment decisions can gain a major competitive edge. Environmental lawyers can help business and investors understand the risks and benefits of unfamiliar areas of activity.

Q

What legislative changes do you feel could be made to further protect

the environment, without impacting negatively on business?

Renewable energy in the UK hasn’t so far been the `green growth’ opportunity it should be. The UK government should use the imminent Energy Bill to radically reform pricing to ensure that energy from renewable sources is permanently cheaper to use, and produces better returns on investment, than fossil-generated power. That would be good for business, consumers and the environment.

UK ENIRONMENTAL LAW

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