Environmental Law News Update

October 23, 2020

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and William McBarnet consider amendments to the Environment Bill, sludge disposal regulation and government commitments to a more comprehensive Net Zero Strategy.

Government amendments to the Environment Bill

Rebecca Pow, on 20 October, published a prospective amendment to the Environment Bill to permit the Secretary of State to publish guidance on the Office for Environmental Protection’s enforcement policy and functions. Under the proposed amendment, the OEP “must have regard to the guidance” in preparing its enforcement policy and exercising its enforcement functions.

Green groups are concerned, as the ability of the OEP to hold public authorities to account has been heralded as the hallmark of this world-leading environmental body and now it looks increasingly as if the Government intends to erode away the OEP’s independence.

As if to anticipate the controversy that this amendment might cause, the Government’s policy paper reads:

“The proposed amendments also include a power for the Secretary of State to issue guidance to the OEP regarding its enforcement policy. Given that the Secretary of State is ultimately responsible to Parliament for the performance of the OEP, this power will give them the opportunity to provide guidance if they deem it necessary. However, this does not constitute a power of direction over the OEP, and the SoS will need to exercise this power consistently with their duty to have regard to the need to protect the OEP’s independence.”

On one view, the phrase “have regard to” is a relatively small hurdle for the OEP to overcome. However, a great deal will depend on the wording of the Guidance published by the Secretary of State, which is capable of amendment or revision at any time. It does feel increasingly as if the OEP will not be the world-leading environmental body that we have been promised.

Certainly proposed amendments published the next day give the feeling of a Government concerned at the prospect of an authoritative OEP. These reemphasise a need for the OEP to set out in its enforcement policy how it will determine how a failure to comply with environmental law is serious and limit the bringing of an environmental review to those cases that meet that threshold – matters that arguably are unnecessary. They also appear to remove the opportunity for the OEP to seek an environmental review in the Upper Tribunal. In the view of the author, this would be a lost opportunity. If ever there were a moment to establish a cost-effective efficient environmental tribunal system, surely it is now.

The proposed amendments can be found here: https://publications.parliament.uk/pa/bills/cbill/58-01/0009/amend/environment_rm_pbc_1020.pdf

And here: https://publications.parliament.uk/pa/bills/cbill/58-01/0009/amend/environment_rm_pbc_1021.pdf

Plumbing the depths of sludge disposal regulation

With a timing that is bound to stoke the fire behind both the Good Law Project’s proposed judicial review (see Blog issue 147) and the Sewage (Inland Waters) Bill 2019-21 (see Blog issue 149), the Agency published last week its report on the environmental performance of water and sewerage undertakers during 2019 As the Chair puts it in her foreword “today is not the day for whataboutery”. Err … Yes, quite (??).

Essentially progress in environmental performance has stalled in a number of ways detailed in the report and already widely reported. However, the passage which particularly caught our eye concerns a topic which we have addressed before and seems, as it were, in a manner of speaking, to be coming to the surface, namely sewage sludge (see Blog issues 132 and 143). The Agency states: “we have suspended the sludge disposal and use metric. Instead we include an update on our compliance assessment approach”. A deeper read reveals that this was because the Agency discovered “practices that were difficult to assess for compliance”. Its response, as well as “suspending the metric”, has been to publish a “time limited” regulatory position statement with conditions enabling the supply, storage and spreading of sewage sludge “containing other materials” whilst a “revised metric” is developed for future performance assessments.

The position statement was in fact published in January 2020 and lasts until 31 January 2021 (a date which seems likely to be extended). If the conditions in it are followed, companies can, without fear of enforcement, supply or spread sewage sludge containing the other materials specified in it. These include sludges from a widened range of physico-chemical treatments, off-specification compost, digestate from anaerobic treatment of animal and vegetable waste and sludge composted with biodegradable non-wastes. Whilst the position statement is confined to circumstances where “your activity does not, and is not likely to, cause environmental pollution or harm human health”, this plainly constitutes an instance where, in order to ensure the continuation of the vital business of sewage disposal, the letter of regulation must bow to practical expediency and play catch-up with what is actually happening on the ground (literally).

Disposal is not confined to domestic product. ENDS reports that in 2019 the Netherlands’ largest sludge incineration plant (yes, you can burn the stuff) closed four of its six incinerators. The surplus sludge has been shipped to … the UK.

Interestingly, a recent decision of the European Court of Justice held that sewage sludge incinerated for energy recovery purposes should not be considered as waste if certain end-of-waste conditions were already met before its incineration (Sappi Austria Produktions-GmbH & Co KG and Wasserverband “Region Gratkorn-Gratwein” v Landeshauptmann von Steiermark (Case C-629/19) ECLI:EU:C:2020:824 (14 October 2020)).

Government commits to comprehensive Net Zero Strategy

The UK Government has confirmed in the 156 page paper Government Response to the Committee on Climate Change’s (“the CCC”) 2020 Progress Report that it will bring together its plans to tackle climate change in an over-arching Net Zero Strategy, ahead of the COP26 climate summit in November 2021. The stated aim of the Strategy is to raise ambition and to set out the Government’s vision for transitioning to a net zero economy by 2050.

The Government’s Response is wide-ranging and addresses topics such as ‘Building Back Greener’ which sets out the UK’s approach to ensuring a green recovery from Covid-19. As well as the actions taken / required in sectors identified in the Clean Growth Strategy (such as Power and Transport) in order to achieve the UK’s emission goals. The CCC has welcomed the fact that the  Government has recognised the scale of the change needed, including the role of citizens and the need for an equitable transition.

The CCC’s 2020 Progress Report highlighted that the Government has only fully achieved two of the 31 milestones set out in the 2019 Progress Report and that progress is generally off-track in most sectors, with only four out of 21 indicators on track in 2019. This represented no change on the previous year where the same four out of 21 indicators were met. Although 14 indicators had moved in the right direction, the remaining 7 were worse than the previous year.

The conclusion must be that although the UK has made significant progress in reducing emissions (they were 44% below 1990 levels in 2018) and has met previous carbon budgets (2008-12, 2013-17; the UK is also on track to meet the 2018-22 budget) an increase in ambition is still required (the UK is not on track to meet the 2023-27 or 2028-32 budgets). The Net Zero Strategy will presumably seek to bring increased coherence to the various schemes underway.

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