Environmental Weekly News Round Up – 26 January 2024

Welcome to the latest edition of our weekly Environment Law news update. As ever, we bring you developments, insights, and analysis in the world of environmental law. Also, we are now featuring our new Environmental Insight section, which this month addresses PFAS in the textile and clothing industry.

NEWS ROUND UP

New BNG Statutory Instruments

This week, the following statutory instruments on BNG were made. These statutory instruments will come into force on 12 February 2024, which is the new launch date for BNG:

1. Commencement order: The Environment Act 2021 (Commencement No. 8 and Transitional Provisions) Regulations 2024 SI 2024/44
2. BNG register: Biodiversity Gain Site Register Regulations 2024, SI 2024/45
3. Register fees and penalties:  Biodiversity Gain Site Register (Financial Penalties and Fees) Regulations 2024, SI 2024/46
4. Exemptions: Biodiversity Gain Requirements (Exemptions) Regulations 2024, SI 2024/47
5. Irreplaceable habitat:  Biodiversity Gain Requirements (Irreplaceable Habitat) Regulations 2024, SI 2024/48
6. TCPA amendments: Biodiversity Gain (Town and Country Planning) (Consequential Amendments) Regulations 2024, SI 2024/49
7. TCPA further amendments:  Biodiversity Gain (Town and Country Planning) (Modifications and Amendments) (England) Regulations 2024, SI 2024/50

Draft BNG regulations were initially published on 29 November 2023, but the contents in these statutory instruments have been updated, which included clarifications in BNG exemptions among other changes.

Steve Barclay vows to end water firms’ pollution self-monitoring in England. 

Steve Barclay, Secretary of State for Environment, Food and Rural Affairs, has told water companies in England that they will no longer have the ability to monitor and report on pollution from their own treatment works, in an attempt to toughen the regulatory approach. 

Water companies have been able to test their own treatment works and sewage discharges for around ten years. They can test their own treated effluent to make sure it met the requirements of their permits, as well as monitoring their releases of raw sewage via storm overflows. Prior to this system, the Environment Agency would send officials to carry out all relevant testing. 

As has been reported multiple times in the weekly roundup, water companies are often found to be illegally dumping waste into water and are not being held to account by the Environment Agency (who have lacked the relevant funding and manpower to regularly audit these systems). The agency is currently conducting a major criminal inquiry into suspected widespread illegal sewage dumping from treatment works. 

Peter Hammond has been calling to an end to self-monitoring for many years. He states that ‘it could result in a major improvement in river ecology, but this is assuming it would be done properly and paid for by the water industry. Ending operator self-monitoring is one of the major changes I have been campaigning for.’ Peter’s research shows less than 50% of all treated sewage has ever been monitored for quality because of self-monitoring. 

Whilst this seems to be a positive toward the ending of water pollution, Steve Barclay has not given a timescale for the ending of self-monitoring, and some readers may have Deja-vu, as Rebecca Pow promised the same end three years ago, as environment minister, with the outcome yet to be seen. 

OEP’s Annual Report finds that the Government is off track to meet its environmental ambitions 

Each year the OEP produces a report to provide an assessment of the Government’s progress towards legally binding environmental targets and the goal of its Environmental Improvement Plan, this year the period covered was 1 April 2022 to 31 March 2023. 

The Chair of the OEP, Dame Glenys Stacey stated that ‘whilst some progress has been made, substantial challenges remain.’ Their assessment was that the Government is largely off track to meet its ambitions and its legal obligations, and more must be urgently done to correct the country’s current trajectory. She went on to disclose that ‘deeply deeply adverse environmental trends continue. With the depleted state of our natural environment and the unprecedented pace of climate change, it does seem to many that we are at a crossroads.’ 

The watchdog has concluded that the progress has not been strong in relation to any of the ten issues covered by the Environmental Improvement Plan and is ‘limited’ by their assessment. The particular concerns of the watchdog are water quality, water scarcity, sustainable resource use and climate adaptation. Progress in seven other areas has been dubbed ‘mixed’ also. The report further raises concerns about the transparency from DEFRA. The OEP stated that it was unable to assess progress against 15 of the 40 targets due to a ‘lack of sufficient evidence.’ 

However, there are some spots of progress, which includes reductions in some air pollutants and chemical pollutants. But the OEP feel that these are largely overshadowed by weak or backward progress in some areas. 

Environment minister Rebecca Pow said that ‘we are always clear that our targets are ambitious and would require significant work to achieve, but we are fully committed to creating a greener country for future generations and going further and faster to deliver nature.’  

Although ambitious, there is no strong attempt for progress, and more must be done to satisfy the OEP’s next report. 

Banned pesticide Cruiser SB gets emergency approval 

Despite being banned in 2018, Farming Minister Mark Spencer had signed off on the limited use of Cruiser SB, a pesticide containing neonicotinoid thiamethoxam, for use on sugar beet crops. 

This is the fourth consecutive year this particular pesticide has been allowed due to its effectiveness against the beet yellow virus. The current stipulation is it can only be used in cases where there is a danger “as evidenced by an independent prediction of virus incidence” of 65% or over. In 2023 the incidence threshold was set at 63% or above; and in 2022 it was 19% or above. Though we see a lowering of the threshold, the recurrence of this “emergency authorisation” might be considered worrying. 

Spencer determined the measure is “necessary and proportionate” in the face of the “damaging impact that an outbreak of beet yellow virus could have on farmer livelihoods”. The decision document showed that the year where no seed treatments were used, “25% of the national sugar beet crop was lost, which resulted in approximately £67 million of total economic loss across the industry, including losses of £43 million for growers.”

The government decided the precautionary principle did not need to be applied in the case of Cruiser SB as “the risks were sufficiently low and were outweighed by the benefits". The UK Expert Committee on Pesticides (ECP) as well as the Health and Safety Executive (HSE) have disagreed. They argued that Cruiser SB poses a significant danger to bees and other pollinators and will have wider repercussions on the environment. 

Anne Rowberry, the President of the British Beekeepers Association BBKA said: “This decision shows little concern for our bees and other pollinators. The treatment will not just kill our bees now, but will affect them and the environment for several years to come. In its recent Environment Bill, the Government announced its commitment to protect our environment and wildlife yet, after eventually banning Neonicotinoids and despite all the rhetoric about protection, they are now intending to allow the use of Thiamethoxam.”

Many others have spoken out against the decision, including Barnaby Coupe, land use policy manager at The Wildlife Trusts, described the decision as a “deathblow for wildlife” and Richard Benwell, chief executive of Wildlife and Countryside Link stated “these pesticides are banned for a reason, they are a risk to our wildlife and to human health. He goes on to remind the public that “Industry promised to find replacements, and government promised better environmental protections. But what we’re getting is delays and yet more broken promises, that leave the UK increasingly falling behind on pesticide action.”  

It should be noted that the European Court of Justice ruled that authorisations for using neonicotinoids were never justified.

ClientEarth’s UK head Kyle Lischak said they are “concerned by the government’s decision to grant emergency authorisation for neonicotinoid seed treatments again this year and we will be reviewing the decision carefully.”

ENVIRONMENTAL INSIGHT

PFAS in the textile and clothing industry

PFAS chemicals or ‘forever chemicals’ are used in a wide range of products from food packaging to firefighting extinguishers. PFAS chemicals are utilised in the manufacturing of textiles and clothing for (among other things) their waterproof and stainproof properties. 

These chemicals by their nature do not break down for centuries. They have been detected in every remote area of the globe, in watercourses, drinking water and even in peoples blood. PFAS chemicals are known to be harmful to people and regulation is slow, and limited.

In this article, Benjamin Holland explores the use of PFAS in the textile and clothing industries, while assessing the environmental and human risk of PFAS chemicals. Benjamin goes on to review the current and upcoming regulation(s) and explores what these sectors can do to phase out the use of PFAS chemicals.