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Information on emissions (regulation 12(9)) (Environmental Information Regulations)

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Latest updates - last updated 10 February 2023

10 February 2023 - The guidance has undergone revisions to reflect the development of case law. However, the overall approach and structure remains the same.

What is an emission?

ICO decision notice FER0489827 is now used to illustrate that regulation 12(9) does not apply to controlled releases. 

CJEU case C-442/14 establishes that the terms ‘emissions’, ‘discharges’ and ‘other releases’ broadly coincide, as opposed to being mutually exclusive.  It also confirms that the term ‘emissions’ is  not limited to just those from industrial installations.

Information on emissions

C-442/14 is also used to confirm that information on emissions includes information on the effects of such emissions.

Does the term ‘relates to’ as used in regulation 12(9) extend the scope of the override?

A more detailed discussion of this issue is provided. An Upper Tribunal  decision (GW v the Information Commissioner, the Local Government Ombudsman and Sandwell Borough Council [2014] UKUT 130 (AAC)) confirms that the term ‘relates to’ does not extend the application of regulation 12(9) to information that can be indirectly linked in some way to the subject of  emissions. This is supported in another CJEU case, C-673/13P, which supersedes the case Ville de Lyon case C-524/09 referred to in the previous guidance. These examples have replaced the example provided by FS50431444 re the V music festival.

Can we separate out the information on emissions to which the override applies and still withhold the remaining information?

A short section has been added explaining that you can separate information on emissions from other information.

Does the override apply to past, present and future emissions?

The CJEU decision in C-442/14 is again used, this time to explain that information on emissions includes that on potential, future emissions, but only to the extent that can be realistically foreseen. 

About this detailed guidance

This guidance discusses the term 'emissions' and how regulation 12(9) works. Regulation 12(9) is the provision that means certain exceptions cannot be used to withhold information on emissions (the 'override'). The term 'emissions' is also used in the definition of environmental information at regulation 2(1)(b) and the guidance assists interpreting that provision. Read it if you have questions not answered in the Guide, or if you need a deeper understanding of these provisions.

In detail

What do the EIR say?

Regulation 12(9) states:

12.—(9) To the extent that the environmental information to be disclosed relates to information on emissions, a public authority shall not be entitled to refuse to disclose that information under an exception referred to in paragraphs (5)(d) to (g).

Regulation 12(9) overrides the use of the exceptions in regulations 12(5)(d) to (g); ie, where regulation 12(9) applies, you cannot use them to withhold information. These exceptions are where disclosure would adversely affect:

  • The confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law (12(5)(d)).
  • The confidentiality of commercial or industrial information where such confidentiality is provided by law to protect a legitimate economic interest (12(5)(e)).
  • The interests of the person who provided the information where that person –
    1. was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority;
    2. did not supply it in circumstances such that or any other public authority is entitled apart from these regulations to disclose it; and
    3. had not consented to its disclosure (12(5)(f)).
  • The protection of the environment to which the information relates (12(5)(g)).

The fact that regulation 12(9) prevents the use of certain exceptions highlights the importance that the EIR give to the release of information on emissions. This will also be a relevant public interest factor, which should be weighed, in the circumstances of the request, in cases where an exception can still apply and when deciding what environmental information should be proactively disseminated, in particular under regulation 4(4)(b).

Article 4(2) of the EU Directive

The EIR implement the EU Directive 2003/4/EC on public access to the environmental information (the European Directive). In particular, it is Article 4(2) of the European Directive from which regulation 12(9) is derived.

Article 4(2) first sets out several exceptions from the right of access, before going on to identify those that can't be used:

“… where the request relates to information on emissions into the environment.”

The exceptions identified as those that can’t be used mirror those referred to in regulation 12(9).

The European Directive in turn implements the Convention on Access to Information, public participation in decision making and access to justice in environmental matters (the Aarhus Convention). The interpretation of regulation 12(9) is informed not just by the language of the EIR and domestic tribunal decisions, but also by the European Directive, the Aarhus Convention (together with the Aarhus Implementation Guide, produced to support the convention), and precedents established by EU caselaw before the UK left the EU. Domestic courts will continue to follow these precedents until such time as either the Court of Appeal or the Supreme Court departs from them.

We will refer to the European Directive and the Aarhus Convention throughout this guidance.

What is an emission?

As explained below, ‘emissions’ is interpreted broadly. It will generally mean:

  • the by-product of an activity or process;
  • that is added (or potentially added) to and affects the elements of the environment;
  • over which any control is relinquished.

The term can overlap with others used in the EIR, ie ‘discharges’ and ‘releases’.

’Emissions’ is not only used in regulation 12(9). It first appears in the definition of what is environmental information provided by regulation 2(1) of the EIR. The term should be interpreted the same way in both regulations.

The definition in regulation 2(1) provides several ways, (a) to (f), in which information will constitute environmental information. Regulation 2(1)(a) lists elements of the environment, including air and atmosphere, water, soil, land, landscape, natural sites and biological diversity. Regulation 2(1)(b) then states that environmental information includes information on:

Regulation 2(1)(b) “factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a)”.

The full text of regulation 2(1) is available in Annex 1.

However, neither the EIR nor the European Directive defines ‘emissions’. Nor does the Aarhus Convention itself. However, the term was considered in the following case.

Example

In Ofcom v Information Commissioner and T-Mobile (EA/2006/0078, September 2007)  the Information Tribunal considered a request for information about the location and technical attributes of mobile phone base stations. The Tribunal   first had to decide whether the request should be dealt with under the EIR.

This involved deciding if radio wave radiation emitted from mobile phone masts was an emission for the purposes of the definition of environmental information provided by regulation 2(1)(b) of the EIR.

Although ‘emissions’ is not defined in the regulations, the European Directive or the Aarhus Convention, the Aarhus implementation guide gives an example of a definition used regarding the control of industrial emissions. At that time, the example came from the Integrated Pollution Prevention and Control Directive (the IPPC Directive). That definition was limited to emissions produced by industrial installations.

Parties opposed to both the information being environmental and the use of regulation 12(9) argued that the example from the IPPC Directive supported their position that ‘emissions’ only referred to those from industrial sites.

However, the Information Tribunal rejected that argument, finding instead that ‘emissions’ in both the definition of environmental information and regulation 12(9):

“should be given its plain and natural meaning and not the artificially narrow one set out in the IPPC Directive”. (paragraph 25)

The Shorter Oxford English Dictionary provides the following definitions of the words 'emit’ and ‘emissions’:

Emit – 1. Give off, send out from oneself or itself (something imponderable, as light, sound, scent, flames etc); discharge, exude, (a fluid).

Emission – 1. Something emitted; an emanation. 2. The action or an act of emitting.

Applying these definitions, emissions will generally be:

  • the by-product of an activity or process;
  • that is added (or potentially added) to and affects the elements of the environment;
  • over which any control is relinquished.

Example

ICO Decision Notice FER0489827 considered a request for ‘field development plans’ and other details relating to a specific licence to explore and develop petroleum reserves. The request was made to Department of Energy and Climate Change (DECC), which is responsible for allocating and administering such licences. DECC identified certain information such as that on ‘flaring’ as being on emissions. It therefore released that information.

Other information was, however, withheld under regulation 12(5)(e) – commercial confidentiality, one of the exceptions that regulation 12(9) overrides. The Commissioner accepted that the information withheld under regulation 12(5)(e) concerned a controlled process by which gas was extracted to be used as a resource. Therefore, this process was not an emission. The Commissioner concluded that this information could be withheld under regulation 12(5)(e).

When the case was appealed in EA/2014/0034, the Tribunal did not disturb the Commissioner’s finding on this point and upheld the Decision Notice.

 

Example

A request to a local authority for information about the noise levels at a specified industrial site would be a request for information on emissions. The noise is a by-product of the industrial activities and processes being carried out over which control is relinquished.

The term ‘emissions’ was also considered by the Court of Justice of the European Union (CJEU) in case C-442/14. As in Ofcom v IC and T-Mobile, arguments that the term should be limited to emissions produced by industrial installations were rejected. The CJEU’s decision also promotes a broad interpretation of the term as discussed below.

Example

Background – An information request to the Netherlands’ regulator for pesticides was refused, in part, on grounds of commercial confidentiality, one of the exceptions that can’t be used where the information relates to emissions. Ultimately that decision was appealed through the Netherlands’ court system, during which a preliminary ruling from the CJEU was sought on the meaning of ‘emissions’.

Arguments – The CJEU considered the expression as used in the definition of environmental information contained in Article 2(1)(b) of the European Directive. The definition, which mirrors that in the EIR, includes:

“factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions discharges and other releases into the environment, affecting or likely to affect the environment …”.

The CJEU rejected arguments that the definition distinguished between emissions, discharges and other releases. Instead, it found that the use of the expression ‘other releases’ showed that the concepts of emissions, discharges and releases broadly coincide. (paragraph 65)

The CJEU also rejected an argument that emissions should be restricted to those captured by the definition given as an example in the Aarhus Implementation Guide. By this time the definition used in the implementation guide was taken from the Industrial Emissions Directive. Although this directive had superseded the IPPC Directive, the definition was identical.

The CJEU found there was nothing in the European Directive or the Aarhus Convention that restricted emissions to those from industrial installations (paragraph 71). It found the Aarhus Convention itself supported a broader interpretation. This was based on the wording of Article 4(4)(d) of the convention which provides a ground for refusing a request  where disclosure would adversely affect:

“The confidentiality of commercial and industrial information where such confidentiality is protected by law to protect a legitimate economic interest.

Article 4(4)(d) then says,

“Within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed.” (emphasis added)

The CJEU pointed out at paragraph 72 that it was not just information on emissions from industrial installations that were relevant to the protection of the environment.

It also considered that interpreting ‘emissions’ too restrictively would undermine the convention’s objective of providing the widest possible disclosure of environmental information.

As established by the CJEU ruling in C-442/14, the terms ‘emissions’, ‘discharges’ and ‘releases’ broadly coincide. This accords with the approach taken in our guidance on What is environmental information?, which states that these three terms overlap.

But this does not mean that all discharges and releases will necessarily be an emission. As a result, you will need to determine, on a case by case basis, whether the information requested is on the uncontrolled by-product of an activity or process. This was also the approach taken in the earlier example of the licence to explore and develop petroleum reserves.

Information on emissions

The definition of environmental information provided by regulation 2(1)(b) refers to “any information on …emissions” and regulation 12(9) only applies to information relating to such information. Therefore, having considered the term ‘emissions’ and finding that it has a broad meaning, it’s now necessary to consider what constitutes information on such emissions.

Clearly, information that details the level of existing or potential emissions is information on emissions. If you hold information on tests that shows there are no emissions, this will also be information on emissions. Information on emissions also covers the assumptions and formulas you have used to calculate the emissions in question.

Details of the consequences or effect of the emissions will also be information on or about them. This ensures that the public can properly understand the information and that it facilitates effective participation by the public in environmental decision making.

Example

In ICO Decision Notice FER0445318 the Commissioner decided that information within a WRATE (Waste and Resources Assessment Tool for the Environment) report constituted information on emissions. The report contained data about the various factors in the waste management solution being considered. This included the efficiencies of the system and a lifetime analysis of its impacts regarding intakes and emissions.

The Commissioner concluded that:

“information on emissions includes predicted or forecasted emissions” and was “sufficiently broad to encompass assumptions upon which such predictions are based as well as information that details the possible consequences of such emissions”.

Based on the content of the WRATE report, the Commissioner therefore found that the majority of the information was on emissions and so fell within the definition of environmental information in regulation 2(1)(b).

A similar approach was adopted by the CJEU in the case discussed earlier, C-442/14.

Example

In C-442/14 the CJEU considered whether information on emissions extended to information on the effects of the emissions on the environment.

Taking account of the objectives of the European Directive, the CJEU considered it necessary for the public to have access to:

“… not only information on emissions as such, namely information concerning the nature, composition, date and place of those emissions, but also data concerning the medium to long term consequences of those emissions on the environment”. (paragraph 87)

Does the term ‘relates to’ as used in regulation 12(9) extend the scope of the override?

Regulation 12(9) of the EIR says that where the requested information ‘relates to information on emissions’, you cannot use certain exceptions. At first glance the term ‘relates to’ could be interpreted as extending the scope of the override to capture any information that can somehow be linked to the subject of emissions. However, the Commissioner considers a narrower approach is required and that, in line with the Upper Tribunal’s decision discussed below, regulation 12(9) will only be relevant if the information falls squarely within the definition of environmental information under 2(1)(b) because it is information on emissions.

Example

In GW v the Information Commissioner, the Local Government Ombudsman and Sandwell Borough Council [2014] UKUT 130 (AAC) GIA/4279/2012, 11 March 2014, the Upper Tribunal considered a request for legal advice. The advice had originally been obtained by the Council to inform its decision on which of two pieces of legislation was most relevant to the control of emissions from domestic chimneys.

The advice was later provided to the LGO during an investigation into how the Council had dealt with concerns about a particular chimney. A request was then made to the LGO for the advice. This was refused under regulation 12(5)(d) on the basis that its disclosure would adversely affect the confidentiality of the LGO’s proceedings. Regulation 12(5)(d) is one of those to which the override applies.

The UT considered the meaning and effect of the words ‘relates to’ in regulation 12(9) and posed the question:

“Does that widen the meaning of “information on emissions” so as to include matters which only fall within the definition of “environmental” because they are within heads (c), (d), (e) or (f) of [the definition of environmental information provided by regulation 2(1) of EIR]?” (paragraph 63)

The UT concluded that it did not. It found that information relating to information on emissions was limited to that captured by the definition of environmental information provided by regulation 2(1)(b) by virtue of being an emission.

Applying that rationale to the circumstances of the case, the UT concluded that the advice was information relating to a measure, ie the legislation, which would affect the elements of the environment, or factors affecting those elements. The advice therefore fell within the definition of environmental information provided by regulation 2(1)(c) and not regulation 2(1)(b). As a result, regulation 12(9) was not relevant to the case.

Interpreting the term ‘relates to’ as meaning that the actual information in question has to be on emissions is supported by the approach taken in another CJEU decision.

Example

In C-673/13P the CJEU considered the appeal of a decision from the EU’s General Court concerning access to documents held by one of the EU’s own institutions. The EU has separate regulations controlling access to such information, but where the information is environmental, the principles of the Aarhus Convention are applied. This includes an override to the use of certain exceptions where the information relates to emissions.

The General Court had found that the requested information only had to be linked ‘in a sufficiently direct manner’ to emissions for the override to apply. The CJEU rejected that approach, finding that the override applied to:

“… information which ‘relates to emissions into the environment’, that is to say information which concerns or relates to such emissions and not information with a direct or indirect link to emissions into the environment”. (paragraph 78)

We can take from this that the CEJU rejected a broad interpretation of the override in question. Rather than simply having to be linked to information on emissions, the information itself has to constitute information on emissions for the override to apply.

This means it’s important to carefully consider whether the specific content of the requested information is on emissions when deciding whether regulation 12(9) is relevant.

Example

ICO Decision Notice FER0436344, from 2012, considered requests about water abstracted from the River Tawe. Water is abstracted for use in industrial processes and later returned to river system. The complainant argued that the public authority should consider the process as a whole when determining the relevance of regulation 12(9).

The Commissioner disagreed and concluded that the requested information was specifically about the abstraction of water rather than the process as a whole. Furthermore, he concluded that whilst the water abstraction was a measure likely to affect the elements, the information requested was not on emissions into the environment so regulation 12(9) was not relevant.

If the complainant had requested details of nickel levels in the water subsequently returned to the environment, the Commissioner is likely to have found that this would constitute information on emissions falling within regulation 2(1)(b) so regulation 12(9) would have applied.

The example above shows that although the abstraction of water from the river system could be linked to the issue of emissions when the process as a whole was considered, you need to focus on the actual information requested.

Similarly, even if the requested information relates to an initiative aimed at reducing harmful emissions, it is important to consider whether the actual information being requested is on emissions.

Example

A request is made for a cost-benefit analysis used to inform a decision whether to award a grant towards the cost of constructing a wind turbine. The turbine is being constructed with the aim of increasing the amount of energy generated from renewable sources and reducing the emissions created as a result of other energy generation methods.

The analysis is environmental information falling within the definition under regulation 2(1)(e). It is a cost-benefit analysis used within the framework of the measures and activities set out in regulation 2(1)(c). In contrast to the WRATE report example above, it does not contain assumptions used to arrive at proposed emission levels. Therefore, in this case, while the information has some connection to the issue of emissions, it does not fall within regulation 2(1)(b) directly so regulation 12(9) does not apply.

Can we separate out the information on emissions to which the override applies and still withhold the remaining information?

The override only applies to the extent that the information relates to information on emissions. Therefore, if only part of the requested information relates to information on emissions, the rest of the information can still be withheld.

Example

ICO decision notice FER0594317 considered a request for information about draft plans for the intersections between two roads. Much of the requested information was withheld under the exception for unfinished documents. The relevant council had applied the exception for commercial confidentiality, regulation 12(5)(e), to the remaining seven documents. Regulation 12(5)(e) is one of the exceptions to which the override applies.

The Commissioner found that one paragraph in one of those seven documents was information on noise emissions. Therefore, that paragraph could not be withheld under regulation 12(5)(e) and, in the absence of any other exceptions applying, had to be disclosed.

However, the Commissioner found that the rest of the information could be withheld under regulation 12(5)(e).

This approach is supported by the CJEU in C-442/14. The CJEU’s preliminary ruling included whether the European Directive had to be interpreted as meaning that where a document did contain information on emissions, the whole of the document was covered by the override. At paragraph 106, the CJEU found that if it is possible to separate the information on emissions from other information, it is only the information on emissions that must be disclosed.

Does the override apply to past, present and future emissions?

The term ‘emissions’ will not only cover those that are occurring or have already occurred. It also covers future emissions to the extent that they can be realistically foreseen. This approach is in line with the CJEU’s ruling in C-442/14.

Example

C-442/14 concerned information held for the purposes of approving the use a particular pesticide. The CJEU was asked for a preliminary ruling on the interpretation of the European Directive. That part of the directive from which the override is derived identifies certain exceptions that cannot be used if:

“… the request relates to information on emissions into the environment”. (emphasis added)

The CJEU considered whether this limited the application of the override to emissions that had actually occurred and  whether such emissions had to have occurred in the environment, as opposed to information on tests carried out in a laboratory.

The CJEU’s ruling was informed by the definition of environmental information in Article 2(1)(b) of the directive. That definition includes factors, such as emissions: 

“… affecting or likely to affect the elements of the environment”.

This definition is identical to that in the EIR.

The CJEU concluded that the override covered laboratory tests to the extent they relate to emissions into the environment that would be foreseeable under normal or realistic conditions of use. This included information on laboratory studies designed to establish the effect of emissions released as a result of applying the pesticide in the most unfavourable of conditions that would realistically be encountered. However, it did not include information on purely hypothetical emissions, ie emissions from significantly higher doses than were ever likely to occur.

This approach establishes that information on emissions includes information on potential, future emissions.

Support for this approach is also taken from Article 7 of the Aarhus Convention, which emphasises the importance of making available information about future plans relating to the environment.

Does the override apply to any level of emission?

There is no test whereby only emissions at a certain level begin to affect the state of the elements of the environment. This means that information on localised and low level emissions will still fall within the definition of environmental information under regulation 2(1)(b) and so be subject to the override created by regulation 12(9).

In Ofcom v Information Commissioner and T-Mobile (EA/2006/0078, September 2007) the Tribunal considered that, within the natural meaning of the definition provided by regulation 2(1)(b), radio wave emissions passing through the atmosphere were likely to affect one or more of the elements of the environment.

Although in that case they were not low level emissions, all information about any such emissions will falls within the definition of environmental information irrespective of quantity. That is, once it is accepted that a particular type of emission is covered, all information on that type of emission is covered, irrespective of its magnitude. Moreover, it’s unrealistic to make decisions on a minimum level of emission that could affect an element of the environment when there is ongoing scientific debate on the subject. This also accords with the requirement to adopt a broad definition of environmental information. So, even electromagnetic or radio wave emissions that are localised or are at a very low level (such as from domestic appliances) are covered. 

Support for the approach that even low level emissions with a minor effect on the environment can fall within the definition of environmental information is found in the Aarhus Implementation Guide. This states that:

“where information is concerned, efficiency is served not by imposing a threshold, but by including everything that is relevant”. It goes on to say that “any information on emissions that may affect the quality of the environment, in view of the Convention’s principles and objectives, should be considered relevant for environmental protection, irrespective of their quantities”.

Further reading

Annex 1: the full text of Regulation 2(1)

2.—(1) In these Regulations –

“environmental information” has the same meaning as in Article 2(1) of the Directive, namely any information in written, visual, aural, electronic or any other material form on –

  1. the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;
  2. factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a);
  3. measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors in (a) and (b) as well as measures or activities designed to protect those elements;
  4. reports on the implementation of environmental legislation;
  5. cost-benefit and other economic analyses and assumptions used within the framework or the measures and activities referred to in (c); and
  6. the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c).”