Archived press release

Ghost Ships in Court Battle

4 December 2003

Judicial Review, High Court, The Strand, 10:30 am, Monday 8 December 2003

On Monday 8 December, the High Court will hear Friends of the Earth's application to judicially review a decision by the Environment Agency to modify a waste management licence granted to Able UK, the company planning to dismantle and dispose of ships from the US Ghost Fleet on Teesside. The Environment Agency now accepts that the modification was `invalid', and will not contest any of Friends of the Earth's grounds for having it formally quashed. Able UK is opposing the application.

If the legal challenge is successful, Able UK will have to apply for a new Waste Management Licence, including a full environmental assessment, if it wants to dispose of the ships on Teesside.

Contrary to some reports, the judicial review (JR) will not, on its own, determine whether the ships can be recycled in Britain or must be returned to America. There are a number of additional issues relating to permits and licences that currently prevent the boats being dismantled on Teesside (see below).

WHY HAS FRIENDS OF THE EARTH MOUNTED THIS JUDICIAL REVIEW?

Friends of the Earth's legal challenge will have important ramifications beyond the current issue of the Ghost Fleet ships already on Teesside. The judicial review will not only determine whether the Environment Agency acted lawfully with regard to the modification of Able UK's waste management licence, it will also set an important precedent relating to laws concerned with protecting Europe's most important wildlife sites.

Friends of the Earth believes that the Environment Agency acted unlawfully when it agreed to modify Able UK's Waste Management Licence. In particular it failed to carry out a proper assessment on the potential impacts on the local, internationally-protected wildlife site, as required under EU Habitats law.

Regardless of the outcome of this case, the Environment Agency states that Able UK needs to make a fresh application for a new waste management licence in order to increase the amount of waste that can be received at the site. This will require an environmental assessment, and proper consultation with local communities.

Friends of the Earth's Lawyer Phil Michaels said:

"This case is much more than a battle over the Ghost Ships. It is about ensuring that international laws to protect our wildlife are complied with, and that local people are not deprived of their right to be involved in decision-making on issues which affect their environment. To suggest, as some have done, that failure to obtain the necessary permissions is a mere technicality shows a serious disregard for the rules that are supposed to protect us and our environment."

BACKGROUND TO FRIENDS OF THE EARTH'S JUDICIAL REVIEW

On 30 September 2003, the Environment Agency agreed to modify a waste management licence held by Able UK allowing it to deal with more waste at its scrapping facility near Hartlepool on Teesside. The Agency's modification also included `ships' in the waste permitted to be scrapped at the facility. Able said that the modification was needed to enable it to deal with the Ghost Fleet ships.

Friends of the Earth objected to the modification on the basis that it was not lawful. On the 30 October Friends of the Earth applied to the High Court for a Judicial Review of the Environment Agency's decision on the grounds that it had not carried out an adequate environmental assessment, and had therefore acted unlawfully.

On 31 October, before the case could be heard, the Environment Agency wrote to Friends of the Earth saying that it had now reviewed the modification of the licence, and decided that it could no longer stand. It said that it would not contest Friends of the Earth's application to quash the modification.

On 5 November, Friends of the Earth went to court to formally quash the modification. During the hearing the Environment Agency revealed that Able's waste management licence does not cover ships. This means that Able UK does not have permission to dispose of the ships, regardless of the court case.

Able refused to allow the formal quashing of the modification, and the case will now be heard on Monday 8 December. Friends of the Earth and the Environment Agency have both prepared detailed arguments as to why the licence must be quashed. The judge is expected to give judgement later in the day.

OTHER OUTSTANDING ISSUES

There are a number of outstanding issues preventing Able UK from dealing with the US Ghost Fleet ships in Hartlepool. As a result, the Environment Agency has ordered that dismantling work can not be carried out on the ships. A High Court injunction has also been placed on the vessels pending a legal challenge by local residents (see below). The ships have been given temporary refuge in the UK, and - as things stand - will have to be returned to the US in the spring.

The principle permissions that Able UK appears not to have include the following:

Planning Permission to build a rock-filled bund (dry dock)

Hartlepool Borough Council issued a statement on 7 October, the day after the first two ships left the US, saying that planning permission to build a rock-filled bund does not exist. This was ignored by Able and MARAD, which allowed two more ships to leave the US on 17 October. An environmental assessment will be required before planning permission can be considered.

Transfrontier Shipment of Waste Notification (TFS)

Without a TFS, ships from the Ghost Fleet cannot be lawfully imported into the UK. The Environment Agency withdrew the TFS when it, belatedly, realised how many permissions Able had yet to obtain to carry out the work.

The ships were allowed into the UK as a temporary measure, after Able and MARAD continued to bring the ships to the UK despite British Government requests to turn them round. The UK Government says that they can now winter in the UK but, under international law, must be returned to the US when weather permits.

Able UK and the US Maritime Administration (MARAD) were warned by the Environment Agency "on 3, 8 and 10 October 2003 that the permissions were not in place, and advised against sailing" [1]. This advice was ignored.

FURTHER LEGAL CHALLENGES

• A group of Hartlepool residents are mounting a challenge against Hartlepool BC and against the Environment Agency in the High court on 15/16 December. Those residents argue that the planning permission that is in place does not allow ships to be dismantled [2].

The case is due to be heard on 15 December. At a preliminary hearing on 5 November, the High Court ordered that work on the dismantling of the Ships could not begin until the court case has been heard. However, even if the residents lose their case, work can still not be carried out on the disposal of the ships as the Environment Agency has issued an emergency modification to the waste management licence prohibiting such work.

• Able's contract is to import 13 ships from the James River, in Virginia, USA. But, a legal challenge by US environmental groups the Sierra Club and Basle Action Network (BAN), has resulted in nine ships being injuncted and they will remain in the US until the case is heard next year.

More information on the Ghost Ships

Notes

[1]. EA position Statement on US Waste Ships

[2]. Phil Shiner of Public Interest Lawyers is representing those residents.

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Published by Friends of the Earth Trust