Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger, Charles Morgan and Mark Davies consider DEFRA’s 25 year Environment Plan and new regulations coming into force this year which impose strict controls on the use of mercury.

DEFRA’s 25 year Environment Plan: a model for the co-existence of environmental protection and economic growth?

In the first Environmental Law News of the year we made our predictions for the development of environmental law in 2018, including the contents of DEFRA’s as then unpublished 25 year Environment Plan. One comment made in those predictions noted that the current environmental buzzwords are, ‘natural capital’; following the Plan’s release on Thursday last week it is clear that those words are not only the buzzwords of the moment, but the concept which the Government intends will underpin environmental policy for years to come.

The Plan itself is split into six chapters:

• Using and managing land sustainably;
• Recovering nature and enhancing the beauty of landscapes;
• Connecting people with the environment to improve health and wellbeing;
• Increasing resource efficiency, and reducing pollution and waste;
• Securing clean, productive and biologically diverse seas and oceans; and
• Protecting and improving the global environment.

One could be forgiven for thinking that the chapter titles are somewhat nebulous, but the goals of the Plan are laudable:

1.   Clean Air.
2.   Clean and plentiful water.
3.   Thriving plants and wildlife.
4.   A reduced risk of harm from environmental hazards such as flooding and drought.
5.   Using resources from nature more sustainably and efficiently.
6.   Enhanced beauty, heritage and engagement with the natural environment.
7.   Mitigating and adapting to climate change.
8.   Minimising waste.
9.   Managing exposure to chemicals.
10. Enhancing biosecurity.

Underpinning each chapter and goal is the concept of natural capital, an idea propagated by the Natural Capital Committee (established in 2012 to advise the government on the sustainable use of our natural assets, i.e. forests, rivers, etc.). It is the reliance on this concept which might suggest that the Plan is an attempt to balance environmental protection with economic growth.

The Plan is full of comment recognising the natural environment as both the basis for our existence and an asset on which our Nation’s wealth is built, for example, “…the 25 Year Environment Plan will help boost… productivity by enhancing our natural capital… since this is an essential basis for economic growth and productivity over the long term.”

Some of the most interesting commitments from the Plan are:

• Ending the sale of new conventional petrol and diesel cars and vans by 2040 (chapter 1);
• Increasing woodland in England in line with an aspiration of 12% cover by 2060 – an aim clearly supported by the recent announcement of a new Northern Forest (chapter 3);
• Doubling resource productivity by 2050 – that being a measure of the value we generate per unit of raw materials we use in the economy (chapter 5);
• Making sure that all policies, programmes and investment decisions take into account the possible extent of climate change this century (chapter 7); and
• The establishment of a Green Business Council, which will advise on developing and articulating the “business case” for companies to assess, address and report on natural capital risks and opportunities in their operations and supply chains.

It will be fascinating to see how the Government balances what many may see as the competing interests of environmental protection with economic growth as the Plan promises. It is arguable that certain policies that might engender economic growth will fall foul of, for example, the commitment in chapter 7 to ensure all policies take into account the effects of climate change, although this is observation which presumably cuts both ways.

No doubt as more detail regarding the implementation of the Plan is developed it will become clearer as to whether it really will improve the environment whilst economically making the most of our ‘natural capital’.

Mercury Gets Special Treatment

As many of our readers will know, Part III of the Regulatory Enforcement and Sanctions Act 2008 (‘RESA’) and the Environmental Civil Sanctions (England) Order 2010 (as amended) introduced into environmental regulation the use of civil sanctions including fixed and variable monetary penalties, enforcement undertakings and costs recovery. These have enjoyed considerable success and could readily be extended in scope by statutory instrument. Nevertheless this is not happening. The proposed amendments to the Fluorinated Greenhouse Gases Regulations 2015 contain provision for a rather different system of civil penalties and now the Control of Mercury (Enforcement) Regulations 2017 (“the 2017 Regulations”) do likewise. Part 1 of the 2017 Regulations came into force on 1 January 2018 and Parts 2 and 3, concerning civil enforcement, come into force on 1 April 2018.

The 2017 Regulations supplement EU Regulation 2017/852 on mercury, which replaces Regulation (EC) 1102/2008. These European measures are directly binding on member states and impose very strict controls upon the export, import and use of mercury, described in the EU Regulation as “a very toxic substance which represents a global and major threat to human health”. The 2017 Regulations supplement the EU Regulation. Part 2 contains a bespoke code for civil sanctions in England and Wales, with provision for enforcement notices, financial penalties and recovery of enforcement costs. Unlike under RESA, but in common with the proposals concerning F-Gases, there is no system of enforcement undertakings and the standard of proof for the imposition of civil penalties is the balance of probabilities rather than the criminal standard imposed by ss. 39 and 42 of RESA. This seems to reflect the present Government’s rather lukewarm roll-out of the RESA régime by its confinement in operation (by policy) to larger companies. There appears also to be a pattern of disdain towards enforcement undertakings (the financial beneficiaries of which are of course environmental causes rather than central government).

One interesting aspect of the EU Regulation is its declaration of war on the use of mercury amalgam in dental fillings. Whilst the mere presence in the human mouth of such fillings is benign, the disposal of the ensuing waste is highly problematical. The waste arises in two main ways. The first is that every time a dentist drills out an old filling and tells the patient “Spit!”, mercury waste is introduced into the domestic sewerage system (dentists are outside the régime of trade effluent consents). Like everything else introduced into that system, much to the amazement of the general population (including perhaps dentists), it does not simply “go away”. It arrives at the treatment works where it receives no special attention, save where the method of treatment is the relatively unusual one of incineration. In the latter case the environmental permit will impose very strict (and costly) control upon mercury emissions to air. The same method of treatment and control is applied also to a significant proportion of the second major source of amalgam waste: corpses. Similarly severe restrictions upon mercury emissions are imposed upon crematoria in their environmental permits. Burials are uncontrolled. If recent proposals for the dissolving of corpses in caustic soda and the disposal of the residue into the sewerage system come to pass, a new context for regulation of mercury waste will arise.

The EU Regulation requires national plans for the gradual phasing-down of the use of mercury amalgam in dentistry and in the meantime for the separate disposal of amalgam waste. The potential longevity of “Baby Boomers”, reared on a post-war sugar-rich diet with the predictable outcome for their teeth, means that the problem will be a real one for decades to come.

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