SOWING OF GM-CONTAMINATED SEEDS IS NOT AN ‘EMISSION’ FOR THE PURPOSES OF THE EIR

March 10th, 2011 by Anya Proops QC

Both the Environmental Information Regulations 2004 (EIR) and the Directive from which it derives (Directive 2003/4/EC) emphasise the importance of permitting the public access to information on ‘emissions’ – see further the fact that a number of the exceptions provided for in the EIR and the Directive are specifically disapplied in the case of emissions information (see r. 12(9) EIR and Art. 4(2) of the Directive). However, one question which is not always easy to answer in practice is what will constitute ‘an emission’ for the purposes of the legislation. In part, this difficulty arises because neither the EIR nor the Directive contains any definition of the word ‘emission’ (although the concept is examined in the Implementation Guide to the Aarhus Convention, which the Directive was itself designed to implement). The question of what will constitute an ‘emission’ for the purposes of the EIR and the Directive was considered for the first time by the Information Tribunal in the case of GM Freeze v IC & DEFRA (EA/2010/0112). In that case, the First Tier Tribunal held (obiter) that the word ‘emission’ did not include the deliberate sowing of genetically-modified seed. The Tribunal’s decision is also worth considering in view of the analysis it contains on the application of the personal data exception provided for in r. 13 EIR.