Environmental news update - 6 December

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.

NEWS ROUND UP

Call for consultation responses – Environment Agency and UK ETS Authority open consultations on scope of the UK ETS and related charging structures

Introduced in 2021, the UK Emissions Trading Scheme (“ETS”) covers the aviation, power and industry sectors. The UK ETS Authority has now opened two consultations on plans to include the maritime sector within the scope of ETS from 2026 onwards and to recognise and implement non-pipeline transport within the UK ETS. The UK ETS Authority is made up of the UK Government, Scottish Government, Welsh Government and the Department of Agriculture, Environment and Rural Affairs for Northern Ireland. 

The consultation on the inclusion of the maritime sector into the UK ETS is intended to provide more detail and consult on the implementation of how the maritime industry will be incorporated into the UK ETS from 2026 onwards. This is cited as a key move in decarbonising the maritime sector, where the prices of maritime fuels are not currently reflective of their environmental costs. At the same time, the inclusion is hoped to strengthen incentives to adopt low carbon fuels, support the rollout of fuel-efficient technologies and the introduction of fuel-efficient operating practices. 

Under the proposed expansion, businesses with ships carrying out domestic voyages would need to obtain ETS allowances for every tonne of CO2 emitted. In particular, the consultations is seeking input on the scope of the scheme (i.e. thresholds for inclusions, what constitutes a ‘domestic voyage’, the possible inclusion of methane and nitrous oxide emissions, and exemptions), details around adjusting the UK ETS cap to include maritime sector emissions, details around scheme participation (including reporting and verification and monitoring obligations), and the potential distributional and carbon leakage risk impacts of the scheme.

Under the consultation on non-pipeline transport, a model is proposed whereby UK ETS participants can deduct carbon dioxide sent to permanent storage through non-pipeline transport from their reportable emissions. 

The consultation document highlights that carbon capture and storage will be “crucial” to meeting the UK’s net zero targets and that the UK ETS as it stands “lacks a framework for operators to deduct CO2 transported to storage via such methods from their reportable emissions.” The consultation is looking for feedback on multiple areas, including accounting for non-pipeline transport emissions, shipping and multiport journeys, possible interactions between proposed non-pipeline transport policy and greenhouse gas removals, and whether the proposed non-pipeline transport policy should require an adjustment to the ETS cap.

Speaking on both open consultations, UK ETS Ministers have stated that “expanding the UK ETS to include maritime and recognising non-pipeline transport for carbon capture and storage will encourage investment into clean technologies, a vital green industry in the UK.” Both consultations run until 23 January 2025.

Relatedly, the Environment Agency (“EA”) have also announced a new consultation relating to the charging structure for greenhouse gas emissions schemes – including charges for customers under the UK ETS, charges for customers of the Carbon Offsetting and Reduction Scheme for International Aviation (“CORSIA”) and charges for the UK Kyoto Protocol national registry. The consultation also sets out charge proposals for the new areas to be brought within the scope of the UK ETS, including maritime activities and energy from waste and waste incineration installations. The EA consultation is open for responses until 24 January 2025.

DEFRA releases Simpler Recycling policy and workplace & household guidance for waste collection

The Department for Environment, Food and Rural Affairs has published the following documents relating to waste policy and guidance:

Policy paper – Simpler Recycling in England: policy update (link)

This document details the government's plans to implement Simpler Recycling in England, which is intended to enable a consistent, more streamlined collections from all households, businesses and relevant non-domestic premises.

The policy introduces a new standard requiring households and workplaces to use four separate containers for residual waste, food waste, paper and card, and other dry recyclables. Importantly, it will end the “postcode lottery” of bin collections in England whereby councils collect different materials for recycling.

Businesses must comply by 31 March 2025, local authorities by 31 March 2026, and micro-firms have until 31 March 2027. 

Secondary legislation implementing the policy updates will be laid in December 2024, subject to parliamentary process.

Guidance – Simpler recycling: workplace recycling in England (link)

Provides that from 31 March 2025 (or 31 March 2027 for micro-firms with less than 10 full-time employees) all workplaces will need to segregate their waste as follows:

• black bin waste (residual waste),
• food waste, and
• dry recyclable materials (plastic, metal, glass, paper and card). Paper and card need to be separated from the rest unless the company’s waste collector collects them together.

These requirements apply to a wide range of workplaces, including facilities used as offices, retail, hospitality, education, healthcare, care homes, charities, places of worship, penal institutes, charity shops, residential hostels, and premises used mainly for public meetings. 

The EA can issue compliance notices in case of non-compliance, with potential enforcement action if these notices are not adhered to.

Guidance – Ensuring good waste collection services for households (link)

Provides that from 31 March 2026 waste collection authorities in England should collect food waste on a weekly basis from all households, unless a longer transitional arrangement has been granted.

Black bin waste (residual waste) and dry recyclable materials will continue to be collected in a way that meets local needs and provides value for money for the taxpayer. 

The guidance specifies further considerations that the waste collection authorities should factor in when deciding the waste collection frequency and methodology.

Plastic Treaty negotiations collapse

The long-awaited final round of negotiations for the UN convened Plastic Treaty concluded with no formal decision. These negotiations started in 2022, and aimed to conclude this year, in the efforts to create an international legally binding instrument to address plastic pollution. This fifth round, called INC 5, marked significant progress but highlighted further points that need to be discussed. The negotiations will therefore continue in 2025. 

The Plastic treaty aims to tackle plastic pollution comprehensively, addressing the full lifecycle of plastic, including production, design and disposal, with a particular focus on reducing plastic waste in marine environments. Without it, plastic pollution could climb about 70% by 2040 on top of the approximation of 400 million tons of new plastic that is currently produced in the world every year. UN’s ambitions are to slash plastic pollution by 80% by 2040 and save more than $4.5trn in the process. 

Despite efforts in Busan the points still outstanding relate to the clash between “high ambition” coalition of nations and the smaller “like-minded coalition”. A group of 85 nations making up of the high ambition coalition are after a strong agreement and that takes time. The date for the next round of negotiations is yet to be determined. The smaller group, which includes Iran, India, China, Russia and Saudi Arabia, on the other hand, highlights that time bound numerical targets to reduce virgin plastics production levels are unacceptable. 

The current draft does hold the potential for meaningful action:

• It introduces mandatory design standards for products.
• It kick-starts a critical list of harmful chemicals and products that will be phased out. This includes single-use and excessive packaging that pose a high pollution risk.
• It includes Extended Producer Responsibility, which requires producers to take responsibility for the entire lifecycle of their plastic products, from production to disposal. 
• It suggests productions limits on plastic production, which is still under debate. 

The talks also included investing in different business models and better infrastructure, offering more economic incentives for companies to create products and packaging that are recyclable and reusable. 

One of the proposed solutions is a treaty that is not entirely global in its nature, agreed by “the coalition of the willing”. This coalition focuses on setting ambitious targets, sharing best practices, funding and support, leading by example and inspire other nations to adopt similar measures. 

At this stage, only recycling is not enough and transition to a circular economy is key to reducing waste and promoting sustainability. While the delay does cause more damage in the battle against plastic pollution it does mean that a better treaty is underway. The talks created a framework for which solutions can be implemented and motivated different stakeholders to take action and push good legislation. 

Newport City Council resist call to open a landfill site for £500 million bitcoin wallet 

James Howells is seeking to sue Newport City Council to gain access to a landfill site containing a Bitcoin wallet, or get £495 million in compensation. 

Mr Howells says in 2013 he accidentally put a hard drive containing the bitcoin wallet in a black bag when having a sort-out which his then partner mistakenly took for rubbish and took to the dump. He alleges the wallet would now been worth between £500 and £600 million and claims the device is in the Docksway landfill site. 

A hearing was held in the High Court in Cardiff this week to decide whether the case should proceed to a full trial. The Council have asked the Court to strike out the claim and James Goudie KC, barrister for the Council, argued “anything that goes into landfill goes into the council’s ownership”. It was also said in that Mr Howell’s offer to donate 10% of the Bitcoin to the local community was encouraging the council to "play fast and loose". 

The Council have previously said on the matter: “The council is licensed to carry out work on the landfill site. This licence is issued by Natural Resources Wales, who regulate our work to ensure we adhere stringently to the terms of our permit in our management of the site.” 

“The council has told Mr. Howells multiple times that excavation is not possible under our environmental permit, and that work of that nature would have a huge negative environmental impact on the surrounding area.”

Judge Keyser KC, overseeing the proceedings, has reserved judgment.

UK Watchdog Questions Defra’s Emergency Approval of Bee Harming Pesticide 

The Office for Environmental Protection (“OEP”) has issued an information Notice to Defra over concerns about potential non-compliance with environmental laws. The scrutiny centres on Defra’s decision to grant emergency authorisations for the use of a neonicotinoid pesticide, Cruiser SB, on sugar beet seeds in 2023 and 2024.

This follows an investigation launched by the OEP in June 2023 after a formal complaint from environmental law charity Client Earth. It questions whether Defra adhered to its legal obligations, specifically the precautionary principle and nature conservation requirements, during the authorisation process. The precautionary principle requires public authorities to avoid actions that may cause environmental harm when scientific evidence is uncertain.

Neonicotinoids, the pesticide at the heart of the case, are highly controversial. They are widely known to pose significant risk to pollinators, particularly bees, which play a critical role in ecosystems and agricultural productivity. While the use of these chemicals is heavily restricted under UK and EU law, emergency authorisations are sometimes granted to tackle specific threats to crops such as viruses carried by aphids.

Helen Venn, Chief Regulatory Officer at the OEP clarified: “The investigation is looking at whether the appropriate assessments and considerations were undertaken in accordance with the law when those emergency authorisations were granted, rather than the outcome of the decisions themselves”.

The case raises significant questions about how the UK government balances agricultural challenges with its environmental obligations, particularly as it seeks to establish post-Brexit independence from EU pesticide regulations. Critics argue that granting repeated emergency authorisations risks undermining efforts to reduce pesticide dependency and conserve biodiversity.

Conservationists have repeatedly warned that derogations for pesticide use threaten pollinator populations already under pressure from habitat loss and climate change.

Client Earth has welcomed the OEP’s decision to pursue the case, stating that it highlights the importance of robust scrutiny of government actions that have significant environmental consequences. The outcome of this investigation could set a precedent for how emergency authorisations are evaluated in the future and may reinforce the legal standing of the precautionary principle in the UK’s regulatory framework.