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Posted on: 25 February 2019

Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger, Nicholas Ostrowski and Natasha Hausdorff consider the publication of the Environment Agency’s quarterly scorecard, a new consultation on plastic packaging tax and continuing scrutiny of the draft Environment (Principles and Governance) Bill.

Environment Agency’s quarterly scorecard published – pollution incidents polluting the Agency’s performance

On 21 February 2019 the Environment Agency published its ‘corporate scorecard’ for the second quarter of 2018-19 which is intended to provide readers with an ‘at a glance’ look at the Agency’s performance over a number of metrics set out in the Environment Agency action plan.

The scorecard is full of numbers, tables and charts for the data afficionados amongst us and uses a traffic light system to set out those targets which the Environment Agency is on track to hit, those which it may hit and those which it will probably fail.

The measures against which the Environment Agency is assessed are spread across water, pollution, habitats, flooding, incident response and influencing planning decisions by local authorities. There are also slightly less interesting ‘organisational’ targets such as the management of the Environment Agency’s budget.

Outside of the expert readers of this blog, the Environment Agency’s performance is typically measured solely by how they respond to flooding incidents (who can forget the political fallout during the 2014 floods). On reducing the risk from floods and maintaining relevant assets the Agency is doing well (perhaps assisted by a relatively dry winter).

However, the big red score which jumps out is that the Environment Agency significantly missed its target in its plan to reduce serious pollution incidents. The target is to have no more than 400 such events in a year and yet 492 such events were recorded in the last 12 months (just under 25% above target). In fact, this number is increasing as the equivalent figure a year ago was 415 such events. Elsewhere the Environment Agency does focus on its impressive efforts to improve water quality of rivers, lakes and coastal waters but this amount of pollution will be concerning. The reason for this may be weather related as the Environment Agency suggests or it may be that the high cost of legal disposal is tempting more people into illegality. The Agency suggests that it is investing in pollution Incident Reduction Plans which it thinks will deliver improvement but, if the situation doesn’t improve, it will be interesting to see what the Agency’s response to this will be. Will they invite DEFRA to water down their targets in the next action plan? Or will they shift resources towards compliance and investigation and away from other, potentially important tasks which the Environment Agency undertakes?

Consultation on plastic packaging tax

As part of government plans to target difficult-to-recycle materials, HM Treasury and DEFRA are seeking views on the design of the tax on plastic packaging, as part of the resources and waste strategy consultations.

The plans announced in the December 2018 Budget, indicated that a world-leading new tax on the production and import of plastic packaging with less than 30% recycled content would be introduced from April 2022, subject to consultation. This accompanies the government’s proposals for reformed Packaging Producer Responsibility regulations, for which there is a parallel consultation.

The consultation description indicates that plastic packaging accounts for 44% of plastic used in the UK, 67% of plastic waste, and over 2 million tonnes of plastic packaging is used each year. The vast majority of this is made from new, rather than recycled plastic. The consultation outlines the government’s proposal for how the tax will work and contains questions, including which packaging should be in scope of the tax, how to assess recycled content, and which businesses will be liable for the tax.

Last year, the government issued a call for evidence, which prompted a record 162,000 responses. This highlighted that recycled plastic using is often more expensive than using new plastic, despite its lower environmental impacts.

The government aims to shift the economic incentives involved in the production of more sustainable plastic packaging, encouraging greater use of recycled plastic and helping to reduce plastic waste and encourages stakeholders to also provide views on the high-level principles of the tax.

The consultation is open until 12 May and views can be submitted here.

Pre-legislative scrutiny of the draft Environment (Principles and Governance) Bill continues

The Environment, Food and Rural Affairs Committee continues its pre-legislative scrutiny of the draft Environment (Principles and Governance) Bill. It has published the written responses received and continues to hear oral evidence, the next oral evidence session to be heard on 27 February 2019 when Andrew Bryce, Co-Chair of the UKELA Brexit Taskforce and Richard Macrory QC, Emeritus Professor of Environmental Law at UCL will be giving evidence.

Highlights from some of the written responses include:

• ClientEarth considers that the Bill currently gives too much discretion to Government Ministers in the design and implementation of environmental law. In their view, this constitutional law endangers the future efficacy of environmental law. There should be an overarching binding objective on Government to secure the recovery and maintenance of a healthy, diverse, clean and beautiful environment with binding legal obligations of result on Government to achieve ambitious environmental objectives.
• Anglian Water submits that the clauses as drafted would at best deliver a weak imitation of the environmental architecture currently in place through the EU Commission and European Court of Justice. The Office for Environmental Protection (‘OEP’) as currently proposed would lack true independence and the duty on ministers to only ‘have regard’ to the environmental principles will make them too easy to ignore.
• UKELA submits that the current provisions significantly qualify and limit the application of the Policy Statement, in particular that the exclusion of the Principles from policies relating to the “allocation of resources within government” is too broad and that the overall proportionality limit found in clause 4(2) is unnecessary and creates scope to avoid applying environmental principles where this requires considerable cost of systemic change to meet environmental standards.
• Professor Macrory highlights the difference in approach between traditional judicial review and the application of Wednesbury unreasonableness and the CJEU’s approach of adopting a proportionality test involving a more structured examination of the balancing interest involved. His concern is that reliance on judicial review will not bring the same degree of review as currently adopted by the CJEU in infringement proceedings.
• The Institute for Government states that arrangements for environmental oversight after Brexit need to be seen as part of the overall supervisory and governance landscape after Brexit. If the OEP will eventually be duty-bound to supervise the UK’s compliance with its treaty commitments, as well as government’s compliance with UK environmental law, then it is all the more importance to give it independent governance now. Otherwise, the OEP will be designed now, only to be redesigned later.

The majority of the responses received welcome the direction of travel but raise serious issues with the current draft of the legislation, in particular in relation to the independence and bite of the OEP.

All written responses can be found here

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