Environmental Law News Update

June 9, 2020

In this latest Environmental Law News Update, Charles MorganGordon Wignall and William McBarnet consider whether a green industrial revolution is on the horizon, another case dealing with the treatment of waste material on shipment and a useful report on the economic regulation of the water industry in England and Wales.

Time for the Green Industrial Revolution?

The Covid-19 crisis has caused major economies around the world to grind to a halt as governments have imposed lockdowns to control the spread of the disease. Whilst the effects of Covid-19 have been tragic, the period has also been viewed by environmental organisations such as Greenpeace as an opportunity for society to reflect on how it uses resources, a chance to reset and build back ‘green’ by putting the environment at the heart of any post-Covid-19 economic stimulus package.

The calls for such change are not just coming from organisations like Greenpeace. On 1 June, over 200 chief executives of some of the UK’s top firms signed a letter asking the prime minister to use the Covid-19 lockdown as a springboard to “deliver a clean, just recovery”. Greenpeace itself has produced a 62 page manifesto containing specific policy, spending and tax measures to try and explain how we might achieve this ‘green recovery’. The recommendations include:

  • Clean transport – measures to speed up the transition to electric vehicles; to expand, electrify and increase the affordability of public transport; and to fundamentally redesign urban transport to prioritise walking and cycling.
  • Green buildings – measures to kick-start a nationwide home and public sector energy efficiency programme; to require all new buildings to support a net zero emissions future; and to establish a new Warm Homes Agency which, amongst other things, would guarantee the delivery of targets.
  • Smart power – measures to make off-short wind the backbone of the UK’s energy system; to support the onshore wind and solar sector to reignite domestic supply chains; and to upgrade the electricity grid to ensure a ‘smart’ and flexible energy system.
  • Nature and a circular economy – measures to significantly restore and enhance nature and wildlife; to establish world-leading environmental legislation; and to get the UK on track to a zero-waste economy through, amongst other things, an improved waste infrastructure.

The manifesto comes in the context of a world which looks set to struggle to meet the targets it has set for itself under the Paris Agreement – the key aim being to keep global temperatures “well below” 2.0C above pre-industrial times and to “endeavour to limit” them even more, to 1.5C. This, says Greenpeace, is the scale of the change required to meet those targets.

Cynics will argue that Britain’s actions will count for little unless the world’s major powers start supporting similar levels of change. Indeed, how far Britain would be wise to go is hotly contested – the imposition of a carbon tax on British industry for example would expose it to international competition where producers overseas do not pay for the pollution they create.

But in Europe at least, there are signs of a new consensus with the EU pledging €750bn as part of its own “green” stimulus package. Teresa Ribera, deputy prime minister of Spain, was quoted as saying that the bloc would in fact be taking on much more risk was if action was not taken to reduce carbon emissions to net zero by 2050. The UK government may consider that the time is right to make bolder pledges than they have done in the past.

Contamination in waste shipments in the dock yet again

The recent decision of the ECJ in Interseroh concerns the vexed question of the treatment of waste material on shipment: when can a shipment be subject to the green list provisions rather than the much more onerous notification and consent provisions (Curia ref. C-654/18, given on 28 May 2020)?

The case concerns mixed paper with 10% impurities.  The authorities of the jurisdiction of receipt (Netherlands) were content that the material could be adequately dealt with in the Netherlands.  The authorities of the country of export (Germany) did not agree with the classification of the waste and considered that the notification and consent process had to be followed.

The main issue was a technical one concerning the definition of a particular waste category, namely B3020, as to which there are different EU-language versions.  (“International agreements concluded by the Union take precedence over secondary legislation, [so that] Regulation No 1013/2006 should be interpreted, as far as possible, in accordance with the Basel Convention”.)

Of more general interest is the question of the treatment of impurities.  In particular, if impurities can be dealt with at the plant of reception, then what does it matter that the impurity level is 1%, 2% or 10%? 

This key question was not directly answered by the ECJ, the Court following the same track as that previously beaten out by AG Sharpston (30 January 2020).

Both the A-G and the Court were stymied by the fact that the Commission has failed over the years to provide subordinate legislation which might provide legal certainty, the Commission having also hinted heavily in guidance that anything other than a minimal degree of impurities should not be acceptable to any Member State.  The default position is that whilst there is a margin of discretion, if the regulators of two States cannot agree, then the notification and consent procedure prevails (see Art.28).

A battery of interpretative provisions have been laid out on the lawns of both the A-G and the Court, deriving from Art.191 TFEU and general legal principles: a high level of protection of the environment, the precautionary principle and the principle of preventive action.

The A-G was prepared to commit to the comment that “In my view the presence of impurities at a level of 10% cannot readily be classified as trifling or insignificant”.

However, that all said, this case has already excited comment on the basis that it has been accepted judicially that it is open to a shipper to submit evidence as to how its waste will be processed at a receiving facility (see the A-G at 68 and the ECJ at 72).

The factual basis for the assessment of permitted impurity levels will be considered by the Court of Criminal Appeal of England & Wales at the end of this month, so that this is an issue to which the blog will no doubt return.


Who writes this stuff??

We ask in admiration. House of Commons Briefing Papers, generally written neither by nor for lawyers, but by professional journalists for busy politicians, often represent superbly succinct and readable summaries of their subject-matter and a valuable aide to legal practitioners. A very good recent example, published on 4 June 2020, is Economic regulation of the water industry in England and Wales, 25 pages of well-delivered information replete with useful hyperlinks to other material. Anyone engaging for the first time with this aspect of water industry law would be well-advised to dip into this briefing paper before plunging into the treacherous and murky depths of the relevant parts of the Water Industry Act 1991 (as you know, we like our water-related metaphors in this blog). Compact and clear narratives describing the functioning of the industry are hard to find, especially for free.

The paper describes in pellucid terms the structure of economic regulation and the operation of the quinquennial price review mechanism. It goes on to inform the reader about the outcome of the most recent review (PR19), the ongoing challenges to its determinations and the factors likely to shape the next review. Current issues concerning economic regulation are identified and summarised in neutral terms, with links to source material where the rival contentions can be found.

A visit to the library website and the appropriate search will lead to many other papers of use to the environmental lawyer. Another topical offering relating to the water industry is Water: non-household retail competition, which includes information on support for business customers during the coronavirus epidemic.

Fortunately our opening question is easily answered. Authorship of both reviewed articles is attributed to one Georgina Hutton, who deserves to be acknowledged for this work, unlikely as it is ever to find its way into the Amazon Best Sellers list. (Is anyone aware of any creative work of literature set in the context of the water or sewerage industries? Let us know – or why not write one in your idle lockdown hours?  “Reservoir of Passion” or “Love in a CSO” are offered as possible titles).

Please also view our Covid-19 Guidance Tracker and Blog – new resources set up by the Regulatory team to enable businesses and legal professionals to more easily navigate to the applicable Covid-19 guidance that is most relevant to their area of work.

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