Environmental Law News Update

September 2, 2020

In this latest Environmental Law News Update, Christopher Badger, Nicholas Ostrowski and Mark Davies consider a case dealing with the criminal liability of landowners for waste on their site, a report from Interpol on the sharp rise in plastic waste crime and a new policy paper from DEFRA on the inclusion of environmental targets in the Environment Bill.

R v  Green and Ryder [2020] EWCA Crim 110

Landowners were found to have criminally benefitted from waste left on their site despite that waste not being brought onto the site by them personally.

In Proceeds of Crime Act 2002 (‘POCA’) applications the court will determine the figure which a defendant has benefitted from through his or her criminal conduct. This is a powerful tool in the Environment Agency’s armoury when dealing with defendants who have been found guilty of waste offences as the benefit figure from such offences may be substantial and in this case was said to amount to £276,004.

In this appeal the unauthorised waste disposal site was owned and controlled by the two individual appellants but the waste was deposited at the site by a company which, although controlled by the appellants, was a separate entity and which, at the start, had lawfully deposited waste on the site in accordance with a permit. The appellants were, essentially, found guilty of operating a waste disposal facility without a permit because they continued to store and treat some of the waste that had been brought onto the site by the company.

The essential point in this appeal is whether a court is entitled to include in the benefit figure financial gain in the form of avoiding paying the costs of removing contaminated waste stored on a site owned by the appellants despite the fact that the benefit from depositing the waste originally accrued to the Company and not the individual defendants. In addition, as the appellants owned the site they argued that not only had they received no benefit when the waste was brought onto the site but that, as it would cost a significant sum of money to remove the waste, the value of the site was reduced pro tanto by the costs of removal of waste from the site. A confiscation order was, the appellants argued, disproportionate and, essentially, a double punishment and the benefit figure should have been limited to the modest proceeds derived from the sale of some of the treated waste to third parties.

The Agency argued that the fact that the waste had originally been lawfully deposited was irrelevant. In order to comply with the Environmental Permitting Regulations 2010 the appellants had to remove the waste from the site and by not doing so they had obtained a pecuniary advantage in avoiding the costs of procuring such removal.

The Court of Appeal dismissed the appeal in this case and unhesitatingly found that (per Stone v Environment Agency [2018] EWHC 994 (Admin)), simply storing the waste on the site was an offence and that (per Morgan [2013] EWCA Crim 1307), saving the costs of removal is a pecuniary advantage which can be considered as part of the benefit figure for POCA purposes even though the appellants may not have actually received cash directly when the waste was brought onto the site. Taken together, the appellants had spared themselves the costs of removing the waste from the site and the POCA benefit figure was not disproportionate.

This is yet another example of the punitive effects of POCA. While the Appellants’ arguments have some obvious merit in that they will have to pay a confiscation order comprising the benefit figure and if they want the site cleared then they will then have to remove the waste themselves (or sell the land at an undervalue taking account of the cost of removal), as the courts have repeatedly said, POCA does not adopt a balance-sheet approach.

The judgment of the Court of Appeal can be found here.

Interpol reports on sharp rise in plastic waste crime

A new Interpol strategic report on global plastic waste management has found a significant increase in illegal plastic pollution trade across the world since 2018.

The report makes for interesting reading. Between 1992 and 2018, China imported a cumulative 45% of the world’s plastic waste, making the global plastic waste market heavily dependent on access to the Chinese recycling sector. However, in January 2018 China implemented new restrictions on the import of 24 types of solid waste including plastic waste.

As a consequence of this policy there has been a large re-routing of plastic waste exports, especially into South and South-East Asia. Shipments of waste to Central and Eastern Europe have also increased. This is likely to have led to a ‘waste surplus’ in these areas. Significantly, there has been a noted increase in illegal treatment of plastic waste in both export countries and in emerging import countries, with three key elements:

i) Export countries have experienced both a significant increase in waste disposal at illegal landfills as well as irregular waste fires in order to cheaply deal with large volumes of untreated domestic waste that would otherwise have been exported to China;

ii) Illegal recycling facilities have thrived in emerging Asian import countries, due to the increase in waste imports and a lack of enforcement capacity. This has circumvented licence costs, impacted on efforts to treat waste in an environmentally sound manner and led to an increase in illicit landfills;

iii) There has been an increase in accidental and deliberate waste fires.

The report makes four recommendations to fight criminality in the plastic waste sector:

i) Develop targeted and time-efficient inspection strategies;

ii) Improve inter-agency co-operation;

iii) Improve waste traceability;

iv) Use the Basel Convention, given that a broader range of plastic wastes are soon to be brought under its scope, as a means of better monitoring and control of the plastic waste stream.

The case studies referred to in the report include the illegal export of 2600 metric tons of mainly household waste to Poland from the UK, misdescribed as green list plastic, which was the subject of a significant fire in May 2018, one of 80 waste fires in Poland in 2018. The report also refers to the major repatriation of waste from Malaysia, with a combined volume of 3737 metric tons of plastic waste sent back to 13 different countries, including 42 containers to the UK.

The report specifically references an “innovative digital solution to track waste through the economy” being pioneered by the UK. The UK’s ‘Waste Tracking Project’ aims to improve the management of waste and reduce the risk of economic, environmental and social harm by ensuring that all businesses adopt legitimate waste management services. It is hoped that a prototype digital waste tracking service will be developed by October 2020.

The full report can be found here

Environmental targets and the Environment Bill

On 19 August DEFRA published its policy paper on the inclusion of environmental targets in the Environment Bill.

The paper notes that,

“It is a major new step to set environmental goals, beyond climate change mitigation, in a way that legal binds this government and future governments, and we want to get it right.”

Ignoring, for a moment, the obvious inaccuracy in that statement, (the Water Framework Directive, anyone? Or perhaps the Convention on Global Diversity? I could go on…,) the sentiment behind it is laudable – it is important that the targets set in the Environment Bill are ‘right’. So, how does the paper do?

“We believe that the best way to deliver targets is through a robust, evidence-led process that seeks independent expert advice, provides a role for stakeholders and the public, as well as scrutiny from Parliament” – so good so far (of course note the irony of a government containing Michael Gove MP backing expert advice – this author thought people ‘had had enough of experts’).

“This paper provides an overview of how we intend to develop and bring forward targets by October 2022” – wait, what? No targets until 2022? What about the period in between when the transition period ends and these targets come into force?

“Once proposed targets are developed, businesses, communities and civil society will have an opportunity to share their views in response to a public consultation that is expected in early 2022.” – so realistically the targets won’t be effective until the middle of 2022 at the earliest? This isn’t looking so promising.

So, what are the targets going to cover?

“The Environment Bill allows for long-term targets to be set in respect of any matter which relates to the natural environment, or people’s enjoyment of it. It requires government to set at least one target in four priority areas: air quality, biodiversity, water and resource efficiency and waste reduction, as well as a target for fine particulate matter (PM2.5). These targets need to be brought forward by 31 October 2022.”

Therein lies the problem with the paper; whilst the Environment Bill was introduced on 15 October 2019, it essentially builds on the 25 Year Environment Plan, which was published on 11 January 2018. It is difficult to understand how work couldn’t have already been in train to set these targets so that they are ready to fill the gap left by our exit from the European Union, particularly in circumstances where they seem to tread the same ground…

Find the full policy paper here

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