Environmental Law News Update

March 25, 2020

In this latest environmental law news update Charles MorganChristopher Badger and Mark Davies consider a call for evidence on future work from the Environmental Audit Committee, a new government consultation on plastic packaging tax and the latest policy outline from the Environment Agency on the treatment of sludge.

Environmental Audit Committee call for evidence

The EAC have issued a call for evidence from stakeholders on what its future programme of work should be. This follows the reshuffle of the Committee that took place at the start of the year with Philip Dunne MP elected as chair and its members elected (9 Conservative MPs, including the chair, 5 Labour MPs, 1 Green MP and 1 SNP MP).

The call is not, however, an opportunity to entreat the Committee to focus on whatever burning environmental topic you might consider relevant, but rather what you might consider most relevant about a number of topics pre-selected by the Committee. The pre-selected topics are:

• Energy efficiency of existing homes
• Nature based solutions to climate change
• Local authorities and net zero
• Follow up on progress since 2018 Green Finance inquiry
• Community energy
• Biodiversity and ecosystem services
• Sustainability of crop management
• Carbon labelling

At present the Committee is calling for ‘short written submissions’ to aid the Committee in prioritising its programme of work and they may be submitted via the Committee’s website by 5pm on 9 April.

The focus of submissions should be on:

• What are the key issues that the Committee should consider under a particular inquiry topic?
• How effective is government policy in the policy area covered by each inquiry?
• Why should the Committee consider a particular inquiry as a priority?

Once the Committee have reviewed the initial submissions there will be a further call for evidence for more detailed submissions on the chosen topic.

This author cannot help but feel that each of the topics is highly worthy of consideration and the Committee is going to be hard pressed to select one over another.

The announcement, including a link for submissions, may be found here

Government consults on plastic packaging tax

The Government has launched a consultation on the design of the Plastic Packaging Tax. The tax is intended to encourage the use of recycled plastic instead of new plastic within packaging. This should create greater demand for recycled plastic which will in turn stimulate increased levels of plastic recycling and plastic collection.

The consultation looks at very specific areas:

• The scope of the tax
• Liability for the tax
• Excluding small operators (de minimis)
• Evidence requirements
• Exports
• Registration, returns and enforcement

The tax will be charged at £200 per tonne where less than 30% recycled plastic is used in packaging. The rate of tax and the percentage is not part of the consultation.

The proposal is that from April 2022 UK manufacturers and importers of plastic packaging who reach and exceed the de minimis threshold will be required to register with HMRC and account for any tax that is due. The tax will be accounted for through quarterly tax returns. A group facility to register for the tax has been proposed to ensure that reporting requirements are not burdensome to business, enabling a number of businesses within a corporate structure to be able to report together as a single taxable person. There is to be a compliance and enforcement regime, run by HMRC, with sanctions to address non-compliance. Criminal penalties are to be considered.

The consultation identifies that the Government is considering ‘tax conditionality’. This would potentially mean that the issuing and renewal of other licences and registrations may be conditional on tax compliance. Ultimately, non-compliance with the Plastic Packaging Tax could lead to other approvals being removed for one or more particular businesses.

The deadline for responding to the consultation is 20 May 2020. The consultation can be found here

Sludge won’t budge despite proposed regulatory nudge

Sludge is the solid end product of sewage treatment. Its disposal is a paradigm illustration of the maxim that “Nothing ever goes away; it just goes somewhere else”. It may be little-known that (according to the Environment Agency) about 96% of sewage sludge is disposed by spreading as fertiliser on agricultural land, with the result that every year an area about the size of Berkshire is covered in it (note: this does not all in practice happen in Berkshire, which is actually a very fragrant place indeed). There have until recently been few alternatives; they include incineration and landfill, but each has its own problems. Dumping at sea was once popular but is now prohibited.

Any over-zealous regulation relating to sewage disposal always runs up against the buffers of “So what else do you suggest we do with it?”. It is ceaselessly produced in extremely large quantities. The fascinating website of the Sulabh International Museum of Toilets informs us that in India, for example, the daily load is 135 million kilograms. Sludge disposal to agricultural land has accordingly enjoyed to date something of a regulatory light touch. It is indispensable. The main instrument in the UK is currently the Sludge (Use in Agriculture) Regulations 1989, implementing the Sewage Sludge Directive. Those measures focus principally on the control of the heavy metals content of the sludge, whereas new potential hazards are now better recognised, including organic and inorganic chemicals, anti-microbial resistance and micro-plastics.

The Environment Agency has now issued a policy paper “Environment Agency strategy for safe and sustainable sludge use” in which it proposes to bring use of sludge within the framework created by the Environmental Permitting Regulations by 2021 by a process of revision described somewhat Delphically as “evolution”. The paper recognises the need to regulate these new hazards, the new treatment and distribution methods being developed by the water industry and other producers of sludge, and emerging new uses such as production of gas by anaerobic digestion. It provides a useful summary of current practices and makes the case for the choice of EPR “evolution” as the mechanism for future change (as opposed to doing nothing, revising the 1989 Regulations and adapting existing EPR régimes). The emphasis is on “risk-based and outcome-focussed regulation”. This is a welcome response to changing conditions, but the irreducible need for viable methods of lawful disposal is bound to continue to set the ultimate parameters. The paper in terms recognises this by its references to “the operational needs of all operators” and the need to “enable greater flexibility for the operator”. The environmental problems are not simply going to go away with the press of the regulatory equivalent of a modern flush button.

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