Environmental Law News Update

In this latest Environmental Law News Update, Laura Phillips, Christopher Badger and William Upton consider the environmental implications of the Conservative manifesto, the start of European Commission infringement proceedings against member states who fail to report on implementation of EU waste rules, and new UK Environmental Impact Assessment Regulations.

The Conservative manifesto and the environment
The Conservative Manifesto was published on 17 May 2017. With the Tories still well ahead in the polls, here are the key points on what we might expect from a Conservative government on energy and the environment:-

Energy
The focus is on cheaper (rather than greener) energy with the ambition being for the UK to have the “lowest energy costs in Europe both for householders and businesses” (p22). There will be an independent review into the Costs of Energy (we anticipate following on from the Green Paper on Industrial Strategy published in January 2017). There is a commitment to improve the energy efficiency of homes, to offer smart meters and to introduce price protection (in the forms of tariff caps) for homes and business (p60), and to the use of smart grids (p81).
Natural gas from shale is positively promoted, the logic being that it is there and that “shale is cleaner than coal”. Planning law will be reformed so that non-fracking drilling will be permitted development and an industry specific Shale Environmental Regulator will be set up (p23). There is an explicit commitment to continue to support North Sea oil and gas through to its eventual decommissioning (p21-22). There is no mention of the coal phaseout promised in November 2016.
There is support for off-shore wind power in the UK, and the door is left open for on-shore wind power in Scotland (the pledge to end any new public subsidy for onshore wind power in the 2015 manifesto has been removed). There is a reference to exploring “ways to harness Welsh national resources for the generation of power” which would include tidal power (p33). There is also a slightly ominous reference to “the wrong regulatory frameworks” over-rewarding “investors for the risks they are taking in backing a particular product” and a promise for reform, which chimes with the Home Secretary’s previous comments that the balance had swung too far away from low prices in favour of climate change policies.
There is no explicit mention of nuclear energy (we already know that Theresa May intends to withdraw from Eurotom – see link here)

Climate change and conservation
Climate change is not mentioned at all in the ‘five giant challenges’ identified at the beginning of the manifesto (pages 6-7). Whilst there is repeated rhetoric about the UK leading global action against climate change (pp 37-40) and explicit reference to the Paris Agreement, this is difficult to square with the policies promoting the use of fossil fuels and ongoing support for Heathrow expansion (p24). There is also no mention of the long-awaited Clean Growth Plan to meet the fourth and fifth carbon budgets for 2023 and 2032 or of carbon capture and storage.
There is a commitment to investing in low emission and electric vehicles (p24); electric cars are specifically identified as an area in which to promote research and development (p19).
The government’s commitment to establishing a Blue Belt of marine protection is renewed (40).

Air quality
The government’s ongoing failure to tackle air quality has recently been subject to successful challenge in the High Court, see previous news update). There is, however, only a passing reference to “take action against poor air quality in urban areas” (p25).

Brexit
The manifesto confirms that the “protections given to… the environment by EU law will continue to be available in UK law at the point at which we leave the EU” but there is no detail on what will be kept and what will go or how this procedure will be managed. A “comprehensive 25-year Environment Plan that will chart how we will improve our environment as we leave the European Union and take control over our environmental legislation” will be produced, but for now we remain very much in the dark. It appears unlikely, given what is set out above, that climate change and air quality will be a priority.

European Commission starts infringement proceedings for reporting failures

The European Commission has opened infringement proceedings against 14 Member States, including the UK, for their failure to report on the implementation of several EU waste rules. The proceedings opened on 17 May address missing reports on reaching targets on reuse, recycling and recovery under the Waste Framework Directive, the Waste Electrical and Electronic Equipment Directive, the Batteries Directive, the Packaging Directive, the Directive on End-of-Life Vehicles and under the Waste Shipments Regulation. The nature and type of obligations vary from one Directive to another.

It’s unlikely that any infringement case, if one were pursued, would be resolved prior to the UK leaving the EU. The most likely course of action is that the UK will be asked to comply with an extended time limit.

Transposition of the above Directives often imposes what appear to be technical burdens of business at their own cost, where the environmental purpose and justification can become lost or under-publicised. Recycling targets, however, form a key part of the Commission’s Circular Economy Package, designed to boost global competitiveness, foster sustainable economic growth and generate new jobs. In the absence of an economic incentive to pursue a recycling agenda, tensions between perceived regulatory red tape on the one hand and responsible waste reduction on the other are likely to persist.

The Commission’s announcement can be found here

New Environmental Impact Assessment Regulations

One of the constant sources of litigation, the EIA Regulations, have been replaced. This is in line with the UK’s obligation to implement the changes made by the EIA Directive 2014/52/EU by 16 May 2017 (and on which the government carried out consultation earlier this year). In an echo of past failures, the UK has actually missed the deadline for transport projects, and the Department for Transport (DfT) has promised these for after the general election. There is also no updated English or Welsh guidance yet on the new Regulations (unlike in Scotland). It is to be hoped that this does not add a new stumbling block to the process. The headline point is not to wait for the guidance – any new project is subject to these new rules now. There are a number of important revisions, including a need to address monitoring measures and a requirement to assess specifically the impact on human health as well as the population (see reg.4) – as a result of a long campaign to include health impact assessments in EIA. That will be an interesting challenge, in the light of the need to consider cumulative impacts, as part of the direct and indirect significant effects of the proposed development.

See:

• The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (referred to by the explanatory memorandum as “the TCP Regulations”);
• The Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (“the IP Regulations”);
• The Town and Country Planning (Environmental Impact Assessment) (Wales) Regulations 2017;
• The Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2017, and Planning Circular 1/2017.