Environmental Weekly News Round Up – 5 January 2024
Welcome to our first weekly Environment Law news update of 2024. As ever, we bring you developments, insights, and analysis in the world of environmental law.
600 pieces of retained EU law expired on New Year’s Eve
The controversial sunset clause did not make it to the Retained EU Law (REUL) Act 2023, but it was instead replaced with a list of around 600 retained EU laws that would be revoked by 31 December 2023. These laws have now expired on New Year’s Eve and include several pieces of environmental law. Among the revoked environmental laws, the following two are the most relevant:
Regulation 9 and 10 of the National Emission Ceiling (NEC) regulations
Reason for revocation: This regulation has either been superseded by UK legislation or is a duplicate of existing domestic legislation and is no longer required.
The NEC regulations set legally binding emission reduction commitments for 2020 and 2030 for five key air pollutants.
Regulation 9 requires the Secretary of State to prepare a National Air Pollution Control Programme (NAPCP) to limit pollutants in accordance with the national emission reduction commitments. Regulation 10 requires that before preparing or significantly revising the NAPCP, the secretary of state must consult the public.
ClientEarth have accused the government of attempting to skirt accountability by scrapping these regulations. The OEP also showed concern and warned that revoking the regulations “weakens accountability and transparency and- in the absence of an alternative, comprehensive plan – it has the potential to weaken environmental protection”.
The Government however denied these claims, arguing that the intention was to reduce administrative burden.
Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003
Reason for revocation: This regulation has either been superseded by UK legislation or is a duplicate of existing domestic legislation and is no longer required.
These regulations impose environmental impact assessment requirements on water resource management projects for agriculture, including agricultural irrigation projects and water abstraction projects, which are not accepted under section 27 of the Water Resources Act 1991 and that are not subject to environmental impact assessment under other regulations.
The Liberal Democrat peer baroness Bakewell of Hardington Mandeville sought to remove these regulations from the list in the House of Lords, but this was not achieved. Lord Callanan, a minister at the DESNZ described the law as “inoperable” because the water abstraction licence exemptions were removed from the Water Act 2003.
This has been described as “concerning” by Ruth Chambers, from Greener UK, and the National Drought Group warned drought conditions may return this year, so the government must demonstrate the abstraction licencing regime is a suitable alternative.
Oil produced by Rosebank might not help UK’s energy security
The North Sea Transition Authority (NSTA) granted development and production consent for the Rosebank oil field in September 2023, which has the potential to produce 500m barrels of oil in its lifetime. The government has highlighted that this project would help the UK to achieve energy security.
The project has faced resistance from opposition groups and received two separate legal challenges by Greenpeace UK and Uplift.
Despite the government’s initial stance being that Rosebank is required for UK’s energy security, a recent development seems to contradict this.
On the parliamentary session that took place on 6 December, the Labour MP Lloyd Russell-Moyle requested the Secretary of State for Energy Security and Net Zero to respond whether the oil produced by Rosebank will be allocated for domestic use. The written response given by Amanda Solloway, Parliamentary Under Secretary of State, provided the following:
“The UK is a net importer of both gas and oil. Gas produced in the UK is the equivalent to about half of our demand; offshore crude production is equivalent to around 90 per cent of refinery demand (5-year average 2018-2022). However, due to UK refinery specifications and global market conditions, around 80% of the oil produced in the UK is refined overseas into the products demanded by the UK market. It is not desirable to force private companies to “allocate” oil and gas produced in the North Sea for domestic use.”
Considering that a major percentage of oil is destined for overseas use and there is no intention to allocate the oil for domestic use, it is unclear if the government will keep its stance linking Rosebank and the UK’s energy security. Evidencing that this link is still alive might prove difficult for the government given the statement above, which will certainly be brought up as part of the legal challenges from the green groups.
The UK’s Consumption and Deforestation Challenge: Findings from the Environmental Audit Committee’s Report
Following on from the UK government’s announcement at CoP28 of its commitment to tackle deforestation and introduce legislation to deal with the issue a report published by a group of Members of Parliament from the Environmental Audit Committee on 4th January 2024 urges the UK government to act with urgency to tackle global deforestation. The Committee is concerned over the “seeming lack of urgency about the implementation of this regime, given global commitments to halt and reverse deforestation trends by 20230”.
A timeline has still not been provided by the UK government as to when the legislation will be introduced, and the Committee is concerned that the proposed phased approach of incorporating products gradually does not reflect the urgency of the need to tackle deforestation.
The Committee’s findings highlight that the proposed legislation may only address a fraction of the problem as a significant amount of deforestation is legally conducted within the countries of origin and highlights the limited scope of the proposed current legislation. This criticism of the legislation has also been raised from various other quarters, with concerns expressed around the legislation’s effectiveness, scope and potential impacts on both the environment and communities. Moreover, the law’s application to only the largest businesses leave many companies unregulated allowing them to continue importing products linked to deforestation.
The report also highlights the UK’s impact on global deforestation due to its consumption patterns and sheds light on the high deforestation footprint of the UK particularly in relation to commodities such as soya, cocoa, palm oil, beef and leather which it warns is unsustainable. These products are linked to deforestation activities and the UK’s footprint per tonne of product consumed is reportedly higher than other countries including China. The Chair of the Committee Rt Hon Philip Dunne MP said:
“UK consumption is having an unsustainable impact on the planet at the current rate. UK markets must not be flooded with products that threaten the world’s forests […]. Yet despite the recent commitment before and at CoP28 to invest in more reforestation measures […], the UK needs to take tangible steps to turn the dial at home”.
The Committee is calling on Ministers to develop a Global Footprint Indicator to demonstrate this impact to the public and a target to reduce the UK’s impact on global deforestation.
The Committee is proposing (amongst others) that all forest risk goods purchased by public bodies should be certified as sustainable and not linked to deforestation and urges for stronger regulations within the UK timber laws to ensure all imported timber is sustainably harvested.
In response the UK government has expressed its commitment to reversing global forest loss through various measures as well as legislation such as international programs aimed at forest restoration.
From Gadgets to Green Goals: The UK’s WEEE Consultation and its Implications
The UK government has initiated a consultation to reform the Waste Electrical and Electronic Equipment (WEEE) Regulations 2013. This initiative aims to enhance the collection, reuse and recycling of WEEE, aligning with the UK government’s broader goal of transitioning towards a circular economy. The proposed reforms emphasise the responsibility of producers and distributors in financing the end-to-end management of electronic waste.
Some of the key proposals in the consultation include:
- Enhancing collection infrastructure funded by producers of electronic equipment. This includes a UK wide waste collection system for small and bulky items significantly financed by the importers and manufacturers;
- Revamping take-back obligations by way of reforms to the current obligations of distributors including retailers and online sellers. For instance, when delivering a large new appliance, the seller would be obliged to collect the old appliance without additional charge facilitating convenient disposal and recycling;
- New obligations on online marketplaces;
- A focus on vapes which aligns with the UK government’s goal of creating smoke free generation and addressing youth vaping with proposals that producers of vapes should finance recycling costs when their products become waste.
Accompanying the proposals are impact assessments including separate ones by the Scottish government. These assessments evaluate the environmental, societal and implications of the proposed reforms.
The consultation indicates that reforms will be implemented in phases starting potentially as early as next year. Initial measures may include regulations for online marketplaces, free collection of large domestic appliances and introducing a new category for vapes. The rollout of household collection system is anticipated to begin around 2026.
The proposed reforms are guided by principles such as setting clear outcomes, ensuring producers cover full net costs, using modulated fees to encourage sustainable design and making it easy for consumers to participate. The principles also stress transparency, fairness and efficiency in the implementation of the reforms.
In summary whilst the proposed reforms to the WEEE Regulations represent a significant step towards a more sustainable and responsible management of electronic waste, the UK government has faced criticism for the delay in introducing the consultation which has been attributed to the need to for completion of key research that will inform both the consultation and the accompanying impact assessments. The criticism follows on from the delays to the implementation of the Extended Producer Responsibility Scheme. The delays in consultation and implementation indicate a slower progress towards the goals of a circular economy and more sustainable waste management practices and may hinder the UK’s efforts to effectively manage and recycle electronic waste with is a growing environmental concern.
100% of storm overflows in England are now monitored
Reports concerning sewage overflows throughout the UK have been increasingly hitting the headlines. Storm overflows were designed to prevent sewage, during periods of heavy rain or snow, from backing up into properties, bursting pipes and overflowing into streets, rivers and seas.
Since 2013, DEFRA has been working to increase storm flow monitoring by installing event duration monitors (EDMs). These monitors provide information concerning the amount and length of a discharge which allows for more transparency concerning polluting events.
The aim was to have 100% of the storm overflows fitted with monitors by the end of 2023. DEFRA counts 14,470 storm overflows in England and has confirmed that all of them are now monitored. As an additional measure, under the Environment Act, from 2025, water companies will be required to make the information publicly from 2025. Section 81 of the Act also requires sewerage undertakers to report on discharges from storm overflows “in near-real time”.
Environment secretary, Steve Barclay, has stated that the "wealth of data collected from these monitors will ensure that we know the full extent to the problem - increasing transparency, revealing the worst-offending overflows, and enabling regulators to hold polluters to account”. He also commented that "this step is just one of many ambitious actions set out under our Plan for Water, which is delivering more investment, stronger regulation, and tougher enforcement across the water system”.
Unfortunately, many are saying these measures are meaningless. Chief executive of River Action, James Wallace pointed out that:
"It has taken over 30 years since privatisation for storm overflow monitoring to be mandatory, however the system still requires polluters to self-report and police themselves. A dozen years of cutbacks on Environment Agency and Ofwat budgets have left the regulators toothless while water companies pollute without fear of prosecution.”
Mr Wallace believes that the government must increase the resources available to regulators – in terms of both staff and funding – for there to be actual change and improvements.
While increased reporting is good, Kirsty Davies, community water quality manager at Surfers Against Sewage, fears the data gathered from the monitors "will sit behind closed doors" until it is mandatory in 2025.
