Environmental Law News Update

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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Environmental Law News Update

In this latest Environmental Law News Update, Charles Morgan, Christopher Badger and Mark Davies consider the new Sewage (Inland Waters) Bill 2019-21, proposed regulations on ecodesign requirements for household appliances and refrigeration and the launch of the Green Homes Grant scheme.

The Sewage (Inland Waters) Bill 2019-21

This Private Member’s Bill was introduced by the Rt Hon Philip Dunne MP on 5 February 2020. The draft bill and explanatory notes were published yesterday and the Bill will receive its second reading in the House of Commons on 13 November 2020. It is described as “A Bill to place a duty on water companies to ensure that untreated sewage is not discharged into rivers and other inland waters; and for connected purposes”.

The substantive provisions of the Bill constitute a concise three-and-a-half pages of text enacting two sections. Its effect would be to introduce into to the Water Industry Act 1991 a new Chapter 1ZA, comprising four new sections 17ZA to 17ZD. These petite parameters belie the aim and reach of the Bill, which might be described as the winding-back of the consequences of the last 200 years or so from the adoption in the United Kingdom of the water carriage system of sewage disposal. Shortly put, that led to the creation of a system of combined sewers receiving and admixing both foul water and rainwater, all of which was then carried and discharged through the same pipes into inland and coastal waters, effectively turning those waters into parts of the system itself as a natural network of pipes and receptacles. The rainwater element being hugely variable and unpredictable, the system had to provide managed and designed relief from surcharging and did so via the now notorious combined sewer overflows (CSOs), of which we have written recently, see issues 140 and 142. In the latter article we noted the initial appearance of the Bill and speculated as to whether it would, as its short description suggested, seek to go further than the Urban Wastewater Treatment Directive in curbing discharges from CSOs altogether, without the present exclusion of “exceptional circumstances” (which, we noted, had seemingly occurred on some 200,000 known occasions during 2019).

The Bill in fact strikes a middle ground. At its heart is the proposed new section 17ZA(1): “A water company in England must take all reasonable steps to ensure that untreated sewage is not discharged into inland waters.” This is fleshed out by a non-exhaustive list of reasonable steps in section 17ZB, including the maintenance of a register of CSOs “and any other sewer catchment assets from which discharges of treated or untreated sewage may be made to inland waters” (which would thus seem to catch all continuous discharges too), the biannual publication of reports on their “operational status”, progressively improved monitoring of performance, and planning to ensure the introduction of additional biological treatment at wastewater treatment works and that “reliance upon CSOs is progressively reduced”.

Section 17ZC would impose annual reporting duties upon the Secretary of State, including an indication of what steps it is proposed to take to achieve fulfilment of the s. 17ZA duty. This identifies and elaborates upon five broad types of measures, namely:

  • measures intended to separate surface water and sewage collection – s. 17ZC(3)
  • measures intended to reduce the volume of sewage produced by domestic properties – s. 17ZC(4)
  • measures to reduce the polluting content of sewage – s.17ZC(5)
  • measures intended to reduce the impact of CSO discharges – s.17SC(6)
  • measures intended to promote improvements in bathing water quality in inland waters – s. 17ZC(7).

These repay full reading. The attempt to gather together and strengthen the various strands of possible solutions is laudable, as is the imposition of rather more specific duties on the companies, the Secretary of State, the Environment Agency and Ofwat than are to be found in current legislation.

The Explanatory Notes state that the Bill requires neither a Money Resolution (the only cost to Government is that of the reporting) nor a Ways and Means Resolution (“because it does not authorise new taxation or similar charges on the people”). The cost of implementing its aims would however necessarily be extremely high and inevitably funded largely or entirely by increases in water and sewerage service charges, which would certainly be politically unpopular. It may nevertheless be that the time has come for facing up to the chronic problems on which the Bill shines a light and its Parliamentary progress will be watched with interest. It already enjoys the support of The Rivers Trust, Surfers Against Sewage, The Wildlife Trusts, Blueprint for Water, The Angling Trust, The Chalk Aquifer Alliance and Salmon and Trout Conservation.

Government consults on draft Ecodesign and Energy Labelling Regulations 2021

The Government is consulting on proposed regulations to update ecodesign requirements for electric motors, household washing machines and washer-dryers, household dishwashers, household refrigeration and electronic displays as well as regulations to introduce ecodesign requirements for welding equipment and commercial refrigeration and energy labelling requirements for commercial refrigeration.

Goods such as washing machines and televisions, which have an impact on energy consumption whether in use or in standby mode, currently account for about 55% of the UK’s total non-transport energy use.

However, the Government isn’t proposing at this time to exceed the requirements that the UK agreed at EU level. Household washing machines and washer-dryers placed on the UK market are subject to existing ecodesign and energy labelling regulations, Commission Regulation (EC) No. 1015/2010 and Commission Regulation (EC) No. 1061/2010. In January 2019, the UK together with other Member States, voted in favour of updating these Regulations. Household dishwashers are similarly regulated. The draft 2021 Regulations simply reflect the agreement made by the UK as a Member State in January 2019.

The Government states that it expects these draft regulations to save 15.8 TWh of electricity by 2050 in the domestic sector, the equivalent of up to a £3 billion reduction on household energy bills. Whilst this sounds impressive, given that there are just under 28 million households in the UK, the author’s rough calculations appear to identify that this is a saving of approximately £3.50 a year for each household, every year from now until 2050.

It is proposed that there will be a further review no later than 7 years from the application dates of the Regulations.

Interestingly, the impact assessment indicates that the Government did not consider adopting more stringent ecodesign requirements than that agreed with the EU. An example of ‘equivalence’ in action, but it doesn’t suggest an overarching desire to fly a green flag.

The deadline for responding to the consultation is 11 November 2020. The consultation itself can be found here

The Green Homes Grant: Hit or Miss?

To much fanfare (at least in some circles…) the Green Homes Grant scheme was launched on 30 September. Chancellor Rishi Sunak said of it:

“We promised to support jobs and protect the environment – and the Green Homes Grant delivers on this. We’re giving homeowners, landlords and local authorities the funding they need to hire local tradespeople and make our homes more energy efficient. By supporting the green van men and women, we’ll save money, save jobs and save the planet.”

Quite the claim.

Alok Sharma, Secretary of State for Business, Energy and Industrial Strategy (BEIS being the Government department responsible for the Green Homes Grant) said this:

“Our plan to upgrade the nation’s buildings and help build back better is good news for jobs, the environment and people’s back pockets, as we reduce emissions and help cut energy bills.”

“I urge everyone to visit the Green Homes Grants website to see how they can make the most of this fantastic scheme.”

Our intrepid bloggers have been to the Green Homes Grant website to see how the Government’s claims stack up.

The website, www.simpleenergyadvice.org.uk, is pleasingly easy to use and takes a user through a series of questions to determine eligibility (the first question is ‘Is this property in England?’ – spoiler alert, if you select ‘No’, you’re not eligible).

If you own a property in England (in which you live, or of which you are the landlord) and that property isn’t a new build, you may be eligible for a voucher to fund up to 2/3 of the cost of hiring tradespeople to upgrade the energy performance of your home (up to a maximum of £5,000 or £10,000 if any member of your household is in receipt of certain benefits).

So far, so good. Assuming you meet those criteria, the website then requires answers to a series of questions concerning your property (no. of floors, current type of roof insulation, wall insulation, etc.)

Having complete those steps, the website churns out what your options are under the Green Homes Grant (for which it uses the acronym, GHG… which it’s difficult not to read as Green House Gases…) and herein lies the problem with the scheme: certain measures under the scheme are primary (solid wall, cavity wall, under-floor, loft, flat roof, pitched roof, room in roof and park home insulation, as well as air source and ground source heat pumps, solar thermal, biomass boilers and hybrid heat pumps) whereas others are secondary (draught proofing, double or triple glazing where replacing single, energy efficient replacement doors, hot water tank thermostats and insulation and heating controls) and you can only get at the secondary measures if you have used one of the primary measures, and then only for the same value as the primary measure.

So, for example, if you live in a flat in Central London that is well insulated and has a modern boiler, but that only has single glazing, your only primary option may be an air source heat pump, which depending on the flat may be impractical. However, you cannot access any money for double or triple glazing unless you make use of a primary option… which isn’t really an option.

The verdict on the Green Home Grant scheme has to be that it’s a hit. Many home owners and landlords will be able to take advantage of the benefits it offers, and this no doubt will support jobs and, hopefully, reduce carbon emissions, but one is left wondering why the Government hasn’t seen fit to structure the scheme so that the minority of home owners or landlords who won’t be able to take advantage of a primary measure, are permitted to use that voucher for a secondary measure instead.

A hit, but slightly wide of the bullseye.

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Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger considers the new Jet Zero Council, pledges to reverse biodiversity loss and the extension of the Environment Agency’s Covid Regulatory Position Statements.

New Jet Zero Council

The new Jet Zero Council has launched with the aim of zero-emission flight by 2050.

The Group is intended to focus on developing UK capabilities to deliver net zero-emission commercial flight by developing and industrialising zero-emission aviation and aerospace technologies, establishing UK production facilities for sustainable aviation fuels and commercialising the industry by driving down production costs and developing a co-ordinated approach to the policy and regulatory framework needed to deliver net zero aviation by 2050.

The Group will be chaired by Grant Shapps MP, Transport Secretary and Alok Sharma MP, Business Secretary and has amongst its members representatives of some of the key aviation players, including British Airways and Virgin Atlantic, Rolls Royce and Airbus, although there doesn’t appear to be a representative from RyanAir.

This is consequently billed as a Government and Industry partnership, with the aim of providing advice on ambitions for clean aviation. The primary focus will be on reducing carbon emissions, while taking into account wider sustainability issues. There appear to be two potential routes: either the development of electric or hydrogen based propulsion technologies leading to zero emission aircraft or combining low emission aircraft with sustainable aviation fuels that are not based on the conventional fossil-derived kerosene. However, don’t rule out that the Government may still attempt to use an offsetting scheme as a means of claiming zero-emission flight.

The Group’s members and its key aims can be found here

Countries pledge to reverse biodiversity loss

World leaders have pledged to clamp down on pollution, embrace sustainable economic systems and eliminate the dumping of plastic waste in oceans by the middle of the century as part of “meaningful action” to halt the destruction of nature on Earth.

Ahead of a UN Summit on Biodiversity that was held virtually from New York on 30 September, the political leaders of 64 countries including the UK signed the ‘Pledge for Nature’ comprising of 10 commitments for urgent action over the next 10 years. These include:

1) Putting biodiversity, climate and the environment as a whole at the heart of any Covid-19 recovery strategy;
2) Committing to a global biodiversity framework with robust goals and targets;
3) Addressing the various environmental challenges in an integrated and coherent way;
4) Moving to sustainable food systems;
5) Reaffirming the Paris Agreement;
6) Ending environmental crimes;
7) Mainstreaming biodiversity into relevant sectoral and cross-sectoral policies;
8) Integrating a ‘One-Health’ approach into all relevant policies and decision-making processes;
9) Strengthening all financial and non-financial means of implementation;
10) Basing the design and implementation of policy on science.

Highlights of the Summit included Jair Bolsonaro attacking international greed over the Amazon rainforest and emphasising that Brazil intended to make full use of the huge wealth of resources available to it in its territory and Xi Jinping committing China to reach carbon neutrality by 2060 and ensuring the China’s greenhouse gas emissions peak by 2030.

Greta Thunberg was not convinced, tweeting:

“Every few years, governments gather to make solemn promises about the action they will take to defend the living world, then break them before the ink is dry. Must read to understand the laughable, cynical empty promises and “pledges” still taking place.”

EA extends Covid Regulatory Position Statements

The Environment Agency has extended some Regulatory Position Statements as part of its response to Covid-19. This includes (amongst others):

  • Monitoring emissions from some environmental permitting activities: PRS C20 (to be withdrawn on 31 January 2021 unless extended by the EA);
  • Reporting for installations, radioactive substances and waste permits: RPS C21 (to be withdrawn on 31 January 2021 unless extended by the EA);
  • Social distancing when signing and handing over waste transfer and consignment noted in person: RPS C8 (to be withdrawn on 31 March 2021 unless extended by the EA).

Ordinarily, complying with the Regulatory Position Statements mean that the Environment Agency will not normally take enforcement action provided that the activity meets the relevant description, the conditions are complied with and the activity does not or is not likely to cause environmental pollution or harm to human health. It should be noted that some of the Regulatory Position Statements require prior written approval from the Environment Agency before they can be relied upon.

The Environment Agency has also made use of virtual inspections of permitted waste sites as part of its efforts to check those sites are complying with regulations. The Environment Agency continues to emphasise that it expects operators to take all reasonable steps to comply with regulatory requirements using contingency plans to help them comply.

The updated Regulatory Position Statements can be found here

To keep up-to-date follow us on Twitter @6pumpcourt or click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk