Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Mark Davies and Angelica Rokad consider the Government’s response to a consultation on plastic waste, a new consultation on cleaner domestic burning of solid fuels and wood, and further thoughts on the definition of waste.

Government publishes responses to plastic waste call for evidence

HM Treasury has revealed that its call for evidence on how the tax system could be used to reduce single-use plastic waste has received strong public support. The consultation, entitled “Tackling the plastic problem”, ran from 13 March to 18 May this year and attracted 162,000 responses – the largest ever to a call for evidence in the Treasury’s history.

The Chancellor of the Exchequer, Phillip Hammond, launched the consultation following the Spring Statement in March this year. During the Statement, the Chancellor also announced a £20 million plastic innovation fund to help businesses, organisations and universities develop alternatives to the material, with half of that funding to go to business-led research.

The Consultation asked respondents a range of questions, including their opinion on the definition of “single-use” plastics, the most important problems associated with them and what the alternatives were.

The responses revealed particular support for using the tax system to encourage greater use of recycled plastic in manufacturing, rather than new plastic, and discourage the use of plastics which were difficult to recycle (for example, carbon black plastics). There was also strong support to reduce the demand for commonly littered single-use plastic items (for example, coffee cups) and encourage further recycling, as opposed to incineration.

Now with the responses received, the Government will consider implementing complimentary policies, with further input from industry and other stakeholders. One policy which the Government has committed to explore further is a tax on commonly used “on-the-go” plastic items – most notably, coffee cups by way of a “Latte Levy”.

The summary of the call for evidence also revealed that the Government will publish a new strategy on resources and waste later this year, as well as consult on the reform of the packaging waste regulations and a deposit return scheme for beverage containers.

The summary of the call for evidence can be found here

Consultation on cleaner domestic burning of solid fuels and wood

On 17 August 2018 DEFRA opened its consultation (yes, another one) on cleaner domestic burning of solid fuels and wood.

The overview to the consultation notes that with the emissions from transport or industrial level burning of fossil fuels having decreased, it is now time that we tackle other sources of air pollution, including those caused by heating our homes. In effect, the Clean Air Strategy has already picked the low hanging fruit, and we are now all going to have to work a bit harder to bring emissions down.

In the Clean Air Strategy the government sets out its aim to reduce particulate matter emissions by 30% by 2020, and by 46% by 2010. Quite staggeringly, according to the consultation, approximately 38% of UK primary particulate matter emissions come from burning wood and coal in domestic open fires and solid fuel stoves, compared to industrial combustion (16%) and road transport (12%).

All is not lost however. Michael Gove is not (yet) going to come and take away your homely wood-burning stove. DEFRA has developed simple guidance for all local authorities to share with residents on steps to bring down emissions and it really does contain some simple steps: use cleaner fuels (dry wood, not coal), burn in a clean appliance installed by a competent person, know how to operate it efficiently, keep it swept by a professional or registered chimney sweep.The proposed measures to ensure cleaner domestic burning include:

• Restrictions on the sale of wet wood for domestic burning so that it can only be purchased in volumes up to a specified cut-off point;
• Applying sulphur standards and smoke emission limits to all solid fuels; and
• Phasing out the sale of bituminous or traditional house coal.

The consultation closes on 12 October 2018 and may here found here

The guidance is available here

Definition of waste (1837)

“… there is no new thing under the sun.” (Ecclesiastes 1:9, King James Bible)

“Muck and money go together” (John Ray, A collection of English proverbs, 1678).

We commented recently upon the case of R (Protreat Ltd) v Environment Agency [2018] EWHC 1983 (Admin) concerning the “end of waste” (see here) and also upon the reinstatement of the Environment Agency’s Definition of Waste panel (see here). Over recent decades thousands of pages of commentary and judgments have been written on the meaning of ‘waste’. Despite it all, one wonders whether there has been any real advance in clarity or understanding since the judgment of Baron Parke in 1837 in the case of Filby v Combe (1837) 2 M&W 677 upon which one of us recently alighted by chance.

The case concerned the activities of statutory ‘scavengers’ appointed under the provisions of the Metropolitan Paving Act 57 Geo. 3 c.29. Their vital job was to gather waste from the streets of London and they were appointed by parishes to “take and carry away from the respective houses and premises of the inhabitants or occupiers their soil, ashes, cinders, rubbish, dust, dirt, and filth” of the parish. Title to the waste was vested by the statute in the scavengers, who made their living by finding what value they could in it. Brewers in Long Acre in the parish of St. Martin-in-the-Fields burnt coal but then transported the ashes to other premises in a different parish where their residual energy-generating capacity was used to heat water. The scavengers appointed for St. Martin-in-the-Fields demanded the ashes but the brewers refused and were sued for their value (£45).

After brief reported argument Parke B. delivered the extempore judgment of the Court of Exchequer of Pleas in the following terms (this is the whole of the judgment):

“The question is, what is the meaning of the enactment in the 59th section of this act of Parliament? I think it is clear, if you look at the whole context, that it applies to such things as are in the contemplation of the owner rubbish, and which he desires to dispose of in that character. If there be any other purpose to which the dust, &e. can be applied, except treating it merely as rubbish, he has a right to do so, either where it was produced, or on any other premises. If it be combustible as fuel, he has a right so to use it on any premises he may have. The right of the scavenger only attaches when the owner has no use for the articles mentioned in the act except as rubbish. Perhaps he may not be entitled to sell or dispose of them in the character of rubbish; but it is not necessary now to decide that.”

Could/will there ever be any improvement upon that?

We published August’s Environmental Law Podcast recently – a monthly round-up of the latest developments in environmental law.