Environmental Law News Update

August 4, 2021

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and James Harrison consider problems with the disposal of sewage sludge, a DEFRA Consultation on Environmental Review and a new UK Innovation Strategy from the BEIS.

More Sludge

We’ve written several times before about both microplastics in the water and sewerage systems and the somewhat under-explored problems relating to the disposal of sewage sludge by spreading on agricultural land, most recently in June. The Environment Agency has now obliquely acknowledged that the former is indeed an aspect of the latter. On 27 July it published “Appropriate measures for the biological treatment of waste: consultation response document”. The consultation is intended to inform the future regulation of permitted facilities which transfer or treat biowaste. Obviously, sewerage undertakers formed a major component of the responding consultees, with six of them amongst the total of 22. There are numerous references in the responses to the treatment of sewage sludge. Interestingly, one undertaker appears to have asserted that sludge was not a waste at all if destined for agricultural use, to which the Agency’s blunt retort is “Sewage sludge is a waste”, with reasons given. The Agency makes clear its view that the spreading of sludge is regarded as an entirely separately regulated activity from its prior treatment as waste.

The most interesting response is to the assertion from one consultee that “Removal of plastics is impossible for sewage sludge.” The Agency says simply “We acknowledge that microplastic in sludge is an issue and extremely difficult to remove. Larger fragments of plastic and other litter are usually removed by screening. Further work on microplastics in the environment will inform future policy and regulation.” That is another way of saying that at present there is no regulation (and no very clear policy) concerning this large area of concern, within either waste regulation or the Sludge (Use in Agriculture) Regulations. The fact is that even if the microplastic content of sewage sludge were found tomorrow to be a clear and direct source of serious injury to health or the environment, the present manner of treatment and disposal by spreading would both have to continue without modification for many years – they are essential components of a vast disposal system for an absolutely relentless waste stream, with considerable inertia built-in physically, economically and legally.

As we concluded last time, “When it comes to sewage, we are all sinners.” Anyone seriously concerned to take immediate personal steps to improve the situation should (a) stop using a washing machine and (b) visit their doctor (or possibly Dignitas) immediately.

DEFRA Consultation on Environmental Review

Are you a stakeholder or interested party in the new environmental review process, the Office for Environmental Protection’s bespoke litigation mechanism? In the recycled words of Lord Kitchener, DEFRA wants you!

When the Environment Bill becomes the Environment Act (anticipated to be in the Autumn), the Interim OEP will become the OEP and its whole gamut of enforcement powers, including environmental review, will become available. Whilst DEFRA takes the view that cases will “usually” be resolved by the OEP via the process of information and decision notices, the environmental review mechanism will exist for those matters that cannot be resolved through dialogue. The Court will apply the same principles as in judicial review to determine whether a public authority has failed to comply with environmental law and may grant standard judicial review remedies (other than damages).

Clause 38 of the Environment Bill sets out the new mechanism of environmental review but amendments will be required to the Civil Procedure Rules (CPR) to establish the mechanism in practice, and to specify important matters of procedure. Given the similarities between the environmental and judicial review processes it is likely that the new rules for the former will largely mirror the existing provision for the latter (set out in Part 54 of the CPR). However, the differences in procedure will require bespoke rules. For example, in environmental review both parties will be public authorities, the OEP will always be the applicant and will have engaged in the preliminary notice stage, and, in many circumstances, it may be appropriate for ‘the relevant Minister’ to join proceedings as an interested party. The early dialogue between the parties will mean that it is easier to deal with environmental review matters without a hearing than is the case with judicial review, the process for the inclusion of interested parties and interveners may sensibly be different from that of judicial review given that there is a greater likelihood of including such parties, and the publicly funded nature of the parties could justify a different default costs position (perhaps as in the Upper Tribunal). In addition, the time limits are different and there is no permission stage with environmental review. How best to deal with these differences, and more practical points such as the contents of the claim form, the requirements for service, and the provision of evidence, is the focus of this consultation. The consultation opened on 26 July and will run until 6 September 2021. Responses can be sent by email or post but are preferred by online survey. The survey and further information are available here.

BEIS publishes UK Innovation Strategy

“Historically, regulation has sometimes stifled innovation. Some of the current regulatory standards inherited from the EU are based on an overly restrictive interpretation of the precautionary principle.”

So reads the newly published UK Innovation Strategy produced by the Department for Business, Energy & Industrial Strategy. The document provides a useful insight into what role the Government considers ‘proportionality’ has to play in the current Environment Bill. After praising the outcomes that can be generated from a ‘correct’ proportionate application of the principle, the Strategy goes on to state:

“The precautionary principle can be interpreted in ways that produce more harm than good. In some cases, the precautionary principle has become a policy of blocking all potential harms, even a possibility of harm, without a balanced analysis of likely benefits.”

The example of genetically modified crops is given and the lack of any significant adoption of GM crops in the EU. The Strategy later continues:

“We will consult on how regulation can ensure that the UK is well-placed to extract the best value from innovation – including on the need for a benefit of a new proportionality principle for regulation.”

The document doesn’t attempt to resolve how innovation and equivalence may interact, nor expand on how proportionality in a regulatory context may be redefined. It doesn’t address previous attempts to consider the role of regulation – for example the Macrory Review or the Better Regulation Framework – or provide further examples of how the UK has had its hands tied behind its back by EU law.

The Strategy does state that “without risk there is no innovation”. Key then to the Strategy is risk management, unlocking skills and investment, as well as providing strategic direction to tackle the current challenges as the Government seeks to ‘Build Back Better’. The forthcoming statement on environmental principles due to accompany the Environment Bill will therefore make for interesting reading, if the Government is to try and rebalance ‘caution’ and ‘environmental risk’ in the context of proportionality and a need for innovation.

The UK Innovation Strategy can be found here

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