by Agata Sudol

This blog is part of the ‘Environmental Justice and the Law – A Student Blog Symposium.’

The Story:

Whether summer is just around the corner or long behind us, families are always planning trips to the beautiful beaches of the UK and looking forward to a swim in the sea. However, it is essential to recognise the risks that this simple recreational activity may pose. Caitlin Edwards’ cautionary tale of polluted water should be a stark warning to these beachgoers to stay clear of the water and keep their children safe. 

After a routine swim at the beach one morning, 22-year-old Caitlin felt unusually unwell, experiencing severe stomach cramps and diarrhoea. She was diagnosed with an E. coli infection that had escalated into haemolytic uraemic syndrome, a rare but serious condition that damages the kidneys. Caitlin’s road to recovery was tough, involving multiple blood transfusions and a month of dialysis, with her kidney function only returning to normal several months later.

Although there are no public reports, Caitlin’s mother shared with the BBC that Public Health Wales, an NHS Trust, investigated the possible cause of Caitlin’s illness and suggested that the harmful bacteria responsible for her infection were likely from untreated sewage. Since details of the investigation and its findings were not released, the extent of bacterial contamination and sewage levels is unknown. However, it was confirmed that a sewage discharge incident had occurred, leading to public health alerts at the beach where Caitlin had been swimming. Despite these alerts, the beach stayed open, and the water remained untested.

Evidently, there are gaps in the environmental law of England and Wales, and this case prompts a closer examination of how the law on water pollution allowed this to happen and how it must change.

Environmental Justice – The Concept:

Environmental justice is a complex term that encompasses various facets of environmental law, including regulation, protection, and efforts to criminalise ecosystem destruction. As asserted by a board member of the Environmental Forum for Reformative Justice, Brunilda Pali, it also entails initiatives aimed at recognising the rights of nature and the responsibility to care for the environment. At its core, environmental justice involves addressing how communities are impacted by environmental crises and ensuring they have a voice in decision-making processes that affect their environment. One specific area of focus within environmental justice is ocean justice. This concept, as noted by a group of scholars, examines the distribution of environmental hazards and harms in marine environments. This case serves as an example of environmental injustice as it sheds light on ocean injustice caused by pollution and toxic waste. By questioning regulatory measures aimed at protecting oceans from sewage discharge, it highlights the importance of ensuring that individuals can safely swim without risking their health.

Another type of environmental justice is distributive justice. This is defined as the notion that environmental benefits and burdens should be fairly distributed among all individuals. This is significant as this case highlights distributive justice concerns, illustrating how individuals such as Caitlin bear the repercussions of insufficient sewage regulation and accountability. However, identifying clear benefits that can be distributed becomes challenging in the context of sewage spills, which result in unintended impacts of environmental harm. 

Water companies derive an advantage from sewage spills as the penalties are usually minor, often not exceeding £2,000, saving them the costs of infrastructure improvements. However, this ‘benefit’ cannot be shared among those affected by the pollution. Therefore, the traditional concept of distributive justice does not adequately apply in this scenario.

Nevertheless, there is a significant issue with distributive fairness that needs addressing. Polluters face minimal financial repercussions, while swimmers bear the brunt of the consequences on their health. This disparity highlights an imbalance in the distribution of harm. Therefore, fairly distributing benefits is inadequate in addressing these injustices because it fails to reflect real-world situations.

To better protect individuals in such scenarios, the definition of distributive justice should be revised, or, at the very least, enriched to provide a deeper understanding suited to these specific cases. The definition should focus on the distribution of harms and who is responsible, rather than looking at benefits. Therefore, this case study represents a form of distributive injustice but one that deviates from the conventional interpretation.

The case study also reveals an issue of procedural environmental injustice. This concept mandates that everyone has a meaningful role in environmental decision-making. A key aspect of procedural justice is transparency, which involves providing information. This case demonstrates procedural injustice as it points to the lack of warning signs and the council’s refusal to provide information. When details about environmental impacts, such as sea pollution levels, are not disclosed, it prevents the public from fully understanding the environmental issues at hand. This lack of information can obstruct informed public participation, leading to procedural injustice. 

The Law Pre-Brexit:

Before Brexit, the UK was bound to adhere to the European Union Bathing Water Directive, which aimed to safeguard public health and the environment by preserving bathing waters from pollution. Sewage contamination in water was assessed using indicator organisms such as salmonella and faecal coliforms (which predominantly comprise E. coli). The Directive established minimum standards for the presence of these microorganisms and outlined the frequency of testing required for each indicator. While the UK is no longer bound by the Directive, it is crucial to determine whether Brexit has impacted UK legislation to effectively assess whether these changes have improved or exacerbated ocean pollution.

Some scholars have criticised the Directive’s sampling methodology as inadequate, while others have pointed out its failure to address antimicrobial resistance within its regulatory framework. Given these criticisms, it is reasonable for the public to anticipate that UK legislation on river and ocean pollution would either surpass EU standards (by addressing these concerns) or, at the very least, remain consistent with them.

However, this expectation has not been met.

The Law Post-Brexit:

Following the UK’s departure from the EU, regulations concerning water quality and other environmental protections originally derived from Brussels were at risk. In response, the Environmental Bill was introduced in 2020 to address this gap. However, despite efforts to amend the Bill in the House of Lords to impose a legal obligation on companies to end the discharge of untreated sewage from storm overflows, the amendment was rejected. Consequently, the Environment Act 2021 was passed without this provision. Instead, in 2022, the Government unveiled the Storm Overflows Discharge Reduction Plan, aiming to tackle raw sewage overflows into rivers. Nevertheless, as set out in the Plan, discharges would continue being released into waterways until 2050, raising concerns about prolonged environmental impact and public health.

Legal Contributions to Ocean Injustice:

Critics, including The Rivers Trust (an environmental charity), have denounced the Plan for its narrow focus on water company targets, citing a lack of ambition in the timeline for action. A policy and advocacy manager at the UK’s leading marine charity, Marine Conservation Society, points out that while initial investments “aim to cut sewage overflows by up to 140,000 each year compared to the level in 2020”, the seven-year timeframe for this reduction to a level that many would still consider unacceptable, falls short of ambitious goals. Shadow Secretary of State for Environment, Food, and Rural Affairs Jim McMahon dismisses the Plan as insufficient, asserting that it permits water companies to carry out an additional 4.8 million discharges through to 2035.

The Government’s lack of urgency in tackling water pollution highlights its indifference towards individuals like Caitlin, who suffer its consequences. Although it aims to address ocean injustice, the Government’s actions only exacerbate the issue. There is also compelling evidence of the Plan’s failure. Recent data from the Environment Agency reveals a startling 54% increase in sewage spills in 2023 compared to 2022, marking the highest pollution level from sewage spills on record.

Despite the clear chance provided by the Environment Act to address environmental regulation gaps, particularly in sewage pollution, the Government’s actions have made matters worse. An advocacy and engagement director at The Rivers Trust, Christine Colvin, expressed disbelief that sewage pollution may persist even beyond her lifetime, she said: “It should have presented an open goal…instead they’ve scored an own goal”. 

Advocacy organisations have also expressed their disappointment, claiming that what should be the current situation will only be achieved in 2050. As noted by the largest environment and wildlife coalition in England, Wildlife and Countryside Link, granting the water industry decades to comply with existing requirements seems an evasion of responsibility. Interestingly, some water companies have set more ambitious targets than the Government. For instance, Anglian Water (a water utility company) aims to prevent any ecological degradation in its rivers due to its operations by 2030. This demonstrates that the Plan is too lenient. Consequently, water companies are compelled to set more aggressive targets in line with societal expectations.

Some organisations have pursued legal action against the Government for not bringing its targets forward, but their efforts fell short as the High Court deemed the Plan lawful. Others are equally appalled by the pollution. Jo Curd, a member of the public who led a recent sewage protest in Falmouth, recounted numerous occasions when sewage alerts disrupted her family’s enjoyment of the water. She also expresses her frustration with the Government’s targets: “My son is seven – and he’ll be 22 by 2035. That’s too late for him and all the other little ones.”

However, Water UK, the trade association for all UK water and wastewater companies, has asserted that the Plan represents progress, stating that water companies are “ready to invest to achieve these ambitious plans.” The Planmandates water companies to “progressively reduce adverse impacts of discharges,” prompting companies to unveil improvement strategies. These involve significant investments, with plans to allocate up to £10 billion towards initiatives like treating overflow spills to minimise their impact on rivers and enhancing the sewer network. 

However, these pledges are mere compliance with legal obligations, presented as proactive measures for environmental justice. Statements from the Water UK Chief Executive, such as “next year will see record levels of investment from water companies to…significantly reduce the amount of sewage in rivers and seas,” create the false impression of voluntary action when, in reality, these actions are legally mandated. This irony is emphasised by their new pledge to enhance transparency, which they seem to be sidestepping so soon after making. While strong legislation is more effective and is our goal, it should be complemented by voluntary actions. Such initiatives should be encouraged, but creating a misleading narrative is unacceptable. Water companies should aim to exceed the bare minimum and outperform government-set expectations. This is particularly important when government targets are inadequate, as in this case, making voluntary action essential when robust legislation is not in place. 

Another concern arises regarding the source of this £10 billion investment being water bill increases. Water UK’s announcement of increased charges has drawn criticism from the General and Municipal Workers’ Union (GMB), which labelled it as an “insult.” Gary Carter, GMB national officer, contends that consumers should not bear the burden when water companies are responsible for dumping millions of gallons of sewage and neglecting investment for decades. They should bear the cost of restoring them to a healthy state, not the public. This sentiment is echoed by clean water campaigner Feargal Sharkey, who expressed shock on the BBC’s Today programme, citing previous acknowledgments from Ofwat (Water Services Regulation Authority) that water companies had already received sufficient funds “to develop… a sewage system capable of properly dealing with our sewage.” Requiring customers like Caitlin to pay again for a service they never received the first time is unjustifiable. This is a clear example of distributive injustice, where those who contribute the least to environmental harm (namely, the public) suffer the most, while water companies, who are responsible for illegal pollution, suffer the least. It is unjust that Caitlin and others affected by water pollution would be expected to handle additional costs for remediation efforts despite having already paid for these services.

There also appears to be a legal loophole that needs addressing: when water sources become polluted and pose health risks, the public refrains from swimming in them. Consequently, these beaches lose their designated bathing status, leading to a stop in the weekly monitoring of harmful bacteria by environmental agencies. Mark Usher, a lecturer at the University of Manchester, has noted that achieving this status mandates people to immerse themselves in the water, even if it results in sickness. In 2020, the Department for Environment, Food & Rural Affairs conducted the Ilkley Consultation to consider designating a section of the River Wharfe in Ilkley as a bathing water area. The consultation disclosed that 380 respondents reported regularly swimming in the river to support the application. It is concerning that individuals must jeopardise their health to ensure their beaches are monitored for harmful microorganisms.

Another point of contention is the attitude of local authorities. Local councils must display information at bathing waters to indicate water quality. However, a year after the incident, Caitlin’s mother noted another sewage alert, yet this time no signs were displayed. Upon contacting the council, she was informed that they only provide signs if the issue is deemed as ‘significant and serious.’ She was advised to check the Surfers Against Sewage app to determine if swimming was safe. It is deplorable that the public must actively verify if their local beach is safe for swimming instead of receiving proactive warnings of its safety status. This is a clear issue of procedural injustice, as the public is not informed about sewage incidents, depriving them of crucial information about the contamination levels of these waters.

This also violates the Environmental Information Regulations 2004, particularly section 4(1)(a), which requires public authorities to disseminate information actively, and section 5(1), which stipulates that they must make environmental information available when requested. The council failed to do this by refusing to provide information. Guidance further mandates that public authorities proactively make environmental information available, a duty that the council also neglected in this case. This highlights the extent of public authorities’ disregard for public health, to the point where they are not only ignoring procedural justice but also violating laws.

Are Swimming Pools the Solution?

One might argue that swimmers are not significantly affected since swimming pools are available. However, the real concern is not merely the restriction from beach swimming but the water companies’ disregard for public safety and the lack of disclosure from public authorities about the dangerous contamination levels of these waters. Swimming pools are also not economically feasible for everyone. A survey by Sport England revealed that only 42% of children and young people from lower-income families can swim 25 metres unaided, compared to 86% from wealthier families. With sewage contamination increasingly affecting water quality, these numbers could drop even further as fewer children can learn to swim in free open waters.

Impact on Others:

Sewage pollution also affects the wider community. As previously mentioned, managing sewage pollution could significantly increase water bills, impacting everyone economically. The health of local ecosystems also suffers. For example, in 2023, sewage discharges in Cornwall were linked to high E. coli levels in oysters and mussels, resulting in the closure of 11 shellfish production zones. This affects local businesses that depend on the ecosystem for their produce. Sewage pollution can also make waters look unappealing and smell “unbearable,” leading to a decline in tourism and further straining local businesses, as tourists significantly contribute to the economies of coastal regions. Additionally, sea-dependent activities such as canoeing and paddleboarding would no longer be feasible, leading to the loss of jobs and volunteering opportunities these activities provide.

Clearly, sewage pollution has widespread effects, impacting not just swimmers but the entire community, highlighting the urgent need for change.

Recommendations:

Ofwat has announced that the average household water bill will increase by £27.40. The UK’s biggest water and sewerage company, Thames Water, has told the BBC that bills must surge by 40% by 2030 to finance infrastructure improvements and has been lobbying regulators to let it do so. Ofwat must maintain its stance and prevent further bill hikes to safeguard individuals like Caitlin and the public from the consequences of water companies’ negligence.

Another suggestion is to require local councils to display multiple warning signs. Councils must be held accountable for failing to disclose information about sewage spills to prevent victims like Caitlin from enduring such hardships. This procedural injustice must be addressed.

The final recommendation is to revise the Reduction Plan with more ambitious targets. Under the existing Plan, water companies are granted permission to discharge sewage for three more decades. This means that Caitlin, along with countless others, will be unable to swim without the fear of illness for years to come, an unjust scenario that must be rectified.

By implementing these recommendations, the UK can strive towards a future where everyone can confidently enjoy swimming in unpolluted waters, free from the threat of harm.

Conclusion:

The legal system, both pre- and post-Brexit, has fallen short in protecting individuals like Caitlin from the life-threatening effects of water pollution. Legislative gaps, coupled with lenient enforcement and accountability measures, have permitted water companies to continue polluting while the public bears the brunt of their negligence.

Caitlin Edwards’ story serves as a warning of the urgent need to tackle environmental injustice, particularly concerning water contamination. Her distressing experience highlights the failures within the UK’s current environmental legislation and regulatory frameworks. The Government’s ineffective Plan indicates its lack of urgency in addressing water pollution and ocean injustice, aggravating the issue rather than mitigating it. The Government must prioritise environmental justice to ensure access to safe swimming water and a healthy environment for all individuals.