Regulatory Outlook | Environment | January 2018

Current issues

Government releases 25 Year Environment Plan:

On 11 January 2018, the government detailed its long-awaited plans for the UK’s natural environment over the next 25 years. Key aspects of the plan include achieving zero avoidable plastic waste by 2042 (which comes just days after the UK’s microbead ban), curbing emissions from combustion plants and generators (which also comes a few days after the government’s implementation plan to phase out UK coal generation), tackling air pollution in a proposed new Clean Air Strategy and consulting on plans to set up a world-leading environmental watchdog. Initial responses from industry are that the government’s plans sound promising but will need to be backed up by strong legislation and adequate funding in order to make any real difference

Brexit: consultation on new, independent, statutory environmental standards body:

On 13 November 2017, the Environment Secretary, Michael Gove, announced that the government proposed to establish a new independent body to hold the government and potentially other statutory bodies to account in relation to environmental standards once the UK has left the EU. The proposed new environmental watchdog will prevent a ‘governance gap’ following Brexit, by taking over the European Commission’s role of monitoring environmental targets and protection. The announcement follows concerns that the UK’s departure from the EU may weaken levels of environmental protection where the Commission has previously applied considerable pressure. The Environment Secretary has pledged a consultation to follow on the functions, remit and powers of the new watchdog, which was echoed in the government’s 25 Year Environmental Plan, published on 11 January 2018 .

Air quality: further challenge from ClientEarth, coal phase-out across UK and impact of air quality on planning permission:

On 7 November 2017, ClientEarth commenced its third judicial review challenge against the government over its continued failure to deal with illegal air pollution across the UK through its air quality plan. The latest challenge follows two successful judicial review challenges by ClientEarth against the government, in April 2015 and November 2016.

On 5 January the Department of Business, Energy and Industrial Strategy (BEIS) outlined its implementation plan for phasing out coal power generation in the UK. From 1 October 2025, new emissions limits will apply to coal-powered generators, which will force them to reduce their coal emissions or face being closed down. Air quality continues to dominate headlines – including news that the UK is the first EU member to ratify the Kigali Amendment to reduce hydrofluorocarbons (HFCs) under the Montreal Protocol. The importance of air quality issues in certain planning decisions, particularly in relation to residential developments, has recently been highlighted in a case where planning permission was refused on air quality grounds. In Gladman Developments Ltd v Secretary of State for Communities and Local Government and others, a planning inspector’s conclusion that a developer’s mitigation measures would not result in a satisfactory level of air quality were upheld.

Industry fears cost increases from Environment Agency charging review:

The Environment Agency (EA) has been criticised for ‘creating a lot of confusion’ by proposing to replace its current system of regulatory charges. This would impact a number of its charging schemes, including: the environmental permitting regime, the marine licensing regime, the waste electrical and electronic equipment (WEEE) regime, the control of major accidental hazards  regime and the EU Emissions Trading Scheme. The most radical change is the proposed removal of the operational risk appraisal regime, which is used in rating the environmental risk of installations based on their emissions, location, compliance rating, operator performance and complexity. It is thought that the proposed move to a less intricate ‘performance based regulation’ will see over 100,000 permitted operations being affected, including: environmental permits, abstractions licences and WEEE producers. Industry responses have highlighted concerns over the fairness of the proposed new regime as well as the limited preparation time for regulated business, as it is anticipated that the changes will be effective from April 2018.

A formal consultation on the EA’s proposals was published on 30 November and closes on 26 January 2018.

Waste Electrical and Electronic Equipment: DEFRA publishes amendment proposals:

In October 2017, DEFRA published a consultation on proposed changes to the WEEE Regulations 2013. The consultation sets out how certain aspects of the EU WEEE Directive 2012 might look once transposed into UK law. The changes required will bring all electrical and electronic equipment (EEE) within the scope of the 2013 Regulations in a move referred to as ‘open scope’ which must be implemented by all Member States by 15 August 2018. The ‘open-scope’ changes also introduce a requirement to categorise and report EEE and WEEE in six revised categories, which is a change from the current 14 categories in the UK. As a result of the move to ‘open scope, the consultation anticipates an increase in costs to regulators, producers and treatment facilities who will need to amend their existing reporting system.

Environment Agency proposes revised enforcement and sanctions policy:

On 28 November 2017, the EA launched a consultation on proposals to update its current Enforcement and Sanctions Statement and Enforcement and Sanctions Guidance so that they are combined into a single document – the ‘Enforcement and Sanctions Policy’ (ESP). Both the Statement and Guidance are currently used by the EA during enforcement of environmental legislation in England. In an effort to increase usage of enforcement undertakings, the draft ESP provides guidance on the form of undertaking which is capable of being accepted by the EA. Amongst other items which need to be included in an undertaking, offenders must specify action which will secure ‘equivalent benefit or improvement to the environment’, where restoration of the harm caused is not possible. The EA points out in its consultation that quantifying the cost of such harm to the water environment is particularly difficult. In response, the EA is proposing a simplified natural capital methodology to assess the long-term harm to the water environment caused by pollution. This system of assessment is one way in which the value of services provided by an ecosystem which supports the economy can be identified and valued.

The consultation closes on 29 January 2018.

Dates for the diary