New legal challenge from Wild Justice on burning of peatlands

Press release from Wild Justice and lawyers Leigh Day (16th July 2021)

Wild Justice issues legal challenge to new rules on burning of peatland

A legal challenge to new rules governing the burning of heather and grass on peatlands in England has been issued, claiming they are unlawful and unenforceable.  

Environmental group Wild Justice, represented by law firm Leigh Day, has applied for a judicial review of The Heather and Grass etc Burning (England) Regulations 2021, arguing that they are not only unenforceable, but create a façade of effectiveness, preventing urgent and far-reaching legislation addressing climate change and biodiversity loss from being introduced.  

Wild Justice, led by Chris Packham CBE, Dr Ruth Tingay and Dr Mark Avery, say the Regulations introduced in May this year need to be much stricter to ensure they can be enforced effectively. The Regulations were introduced after previous voluntary measures aimed at halting the burning of blanket bogs failed. The Government has a responsibility to protect blanket bog under the Conservation and Species Regulations 2017, which require the restoration of the habitat to “favourable conservation status”.  

The Burning Regulations 2021 are fatally flawed in two ways. They only prohibit the burning of heather, rough grass, bracken and gorse on peat deeper than 40cms – but there is no map to identify where such peat exists and therefore no means of properly enforcing the new rules. The new Regulations also only prevent the burning on Sites of Special Scientific Interest (SSSI) that are also designated as Special Areas of Conservation and Special Protection Areas, which amounts to a ban on only 40 per cent of all blanket bog in England.  

The UK’s peat habitats are wetland landscapes where it is estimated there are over three billion tonnes of carbon stored. They have a unique biodiversity recognised as habitats of national and international significance. The UK’s upland blanket bogs are a globally rare habitat.  

However, vegetation on upland peat soils is set alight at regular intervals, to promote the growth of young heather shoots to feed Red Grouse for the shooting industry. The practice damages the habitat, reduces peat accumulation, and releases around 260,000 tonnes of CO2 every year. 

[A grouse moor set alight in northern England. Photo by Ruth Tingay]

On 24 June 2021, the Climate Change Committee’s latest progress reports were laid before Parliament. The Report criticised the Burning Regulations for only preventing rotational burning on protected peatlands, highlighting that a partial ban was less ambitious than it had recommended. The Report includes a priority recommendation that this be “addressed quickly as delayed action now puts future targets at risk given the time profile of carbon sequestration” and that the Government: “Introduce legislation to … [e]xtend the ban on rotational burning of peat from certain protected upland bog sites to all peatland before the start of the burn season in 2021.”   Wild Justice’s grounds for claim are:  

  • Unlawfulness arising from the Burning Regulations frustrating their own purpose: The Regulations do not include a map, without which they are unenforceable. The failure to publish or refer to a map is unlawful;
  • Demonstrable flaw in the reasoning or serious logical error in the reasoning leading to the making of the Burning Regulations: there is no rationale for limiting the location of areas affected by the Regulations;
  • Breaches of the Conservation of Habitats and Species Regulations 2017: failure to take appropriate steps to avoid deterioration of natural habitats and disturbance of species;
  • Failure to take into account a material consideration, namely the imperative for early and swift action under the Climate Change Act 2008 (“CCA”) and the Paris Agreement.

Wild Justice said: ‘There’s a climate crisis and a biodiversity crisis, and this type of burning adds to both.  Instead of acting decisively, DEFRA is fiddling while the uplands burn‘.

Leigh Day solicitor Carol Day said: “Our client strongly supports effective action by the Secretary of State to protect peatland, including through enforceable legislation regulating the burning of blanket bogs, given their crucial importance as a habitat and in sequestering carbon. But in falling so far short of what is needed, these Regulations create a façade of effectiveness preventing real progress from being made. Wild Justice hopes that bringing this challenge, along with the call from the Climate Change Committee for urgent action, will prompt the Government to plug the gaps in these Regulations.”  


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8 thoughts on “New legal challenge from Wild Justice on burning of peatlands”

  1. How do you measure 40cm?
    How do you define the top surface?
    How do you define the bottom of the peat?
    Is it a spot measurement?
    Is it an average over an area?

    Within any single burn patch, the peat (which is supposed to be benefiting from protection) will never be a uniform depth.
    99% of the patch could be over 1m deep, however a single probe could hit an ancient tree stump and measure 20cm deep.

    Lawyers for the defence…please look for loopholes.

  2. It looks like typical backroom political maneuvering to me where the core of the Bill passed in may had effectively been gutted by the faceless shadows and partisan working groups centered around Westminster.
    Politicians have been reduced to PR agents where their job is to present these corrupted Bills to the public while making it look like an effective response is the result of their work. This is effectively undermining the will of the public, something that democracy sought to promote…. and the closer I look the more widespread it becomes.

  3. Yes, its just the twin of the raptor persecution laws. Looks good on paper, almost impossible to enforce on the ground. It allows some Minister or other with vested interests to cynically trot out the line – “this country has some of the toughest laws in the world on raptor persecution AND on peatland protection” etc, etc. It’s the same in many walks of life, for example they create a great looking rule book for social care that has very little to do with what happens in reality. It is just the way Government seems to function these days. Good luck to the WJ challenge!

  4. Excellent ! So pleased there is to be a legal challenge.
    As a gardener, I am being encouraged to use peat free composts. Indeed , peat free composts are to be made law in the coming months/ years I understand.
    So it’s important EVERYONE does their bit.
    And the burning of moorland for the sick minded shooting fraternity must stop

  5. As pointed out in other comments, the DEFRA regulations on the burning of peat on blanket bog appear not to deliver the protection and regeneration that this habitat should be afforded, despite all the government rhetoric.

    A similar situation has occurred with the proposed Environment Bill.
    Part of this Bill will make it illegal for UK businesses to use key commodities such as cocoa, soya, palm oil if they have not been produced in line with local laws protecting forests and other natural ecosystems.
    What this proposed legislations fails to address is that some countries whose habitat includes vital natural ecosystems, such as rain forest will simply legitimise the destruction of those ecosystems, if they interfere with economic growth and development.
    This will simply allow business to continue as usual and import products from those countries where environmental destruction is taking place. Much in the same way that the DEFRA Regulations on peat burning still allow most grouse moors to continue burning heather as usual.

    It is encouraging Wild Justice have seen through, what can only be described as a charade of deception by the government and are mounting a legal challenge.
    I hope other environmental groups also have the courage and conviction to challenge the government on what appears to be other deceptive environmental proposals.

    I suspect this is all about the government playing politics, so Ministers can make bold claims as we move towards COP26.
    At a time of a climate change emergency, we need a government that actually delivers tough environmental legislation, not one that appears to be trying deceive the public by burying weakness in the detail. Weakness which in reality allows the status quo to remain and the destruction to continue.
    This appears to be nothing more than a government meddling in the dark arts of deception, and it is right this is being legally challenged. Well done Wild Justice!

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