01/11/2017
Under Article 50 of the Treaty on the European Union (TEU), the Lisbon Treaty, the UK gave notice on 30th March 2017 that it intends to leave the EU. The process of exit negotiations takes two years. At the end of this period, unless a different date is agreed with all the 27 remaining EU member states, the UK will cease to be part of the EU. If there is a failure to reach an agreement and there is no time extension agreed, all EU treaties and regulations cease to apply to the UK on 30th March 2019.
Once we leave the EU, much of the environmental law contained in EU regulations will need to be transposed into UK law. This will be achieved via the European Union (Withdrawal) Bill 2017-2019 (the Repeal Bill) which passed its second reading on 12th September 2017. Although this will reduce the likelihood of an environmental legislative black hole, it doesn’t address the issues related to target setting or whether the UK will keep in step with the EU as the bloc environmental laws and targets change.
It is important that any company affected by waste and recycling laws understand the following:
• the legislative changes likely to occur if and when Britain leaves the EEA/EFTA
• which EU regulations will be transposed into UK law by the Repeal Bill
However, the waste and recycling sector also needs to appreciate the extent to which it relies on EU targets for its commercial viability. When we leave the EU, what will the impact be if the newly independent UK declines to follow EU environmental targets?
The origins of UK environmental law
Britain may have been labelled the ‘sick man of Europe’ in the 1960s and 70s due to its lacklustre economic performance, but in the 1980s it was undoubtedly “Europe’s grubby cousin”.
As a nation, we produced more sulphur dioxide pollution than any other European nation, and we happily dumped tons of raw sewage into the sea.
Over the past 35 years, Britain cleaned up its act; sulphur dioxide emissions fell 89%, and almost 600 British beaches met clean water standards (compared with only 30 in the late 1970s). We are now considered one of the world’s leaders in global warming initiatives.
The EU is the driver for much of the UK’s environmental policy. Up to 80% of environmental regulation derives from the EU and up to 25% of all EU legislation relates to the environment.
Key Pieces of legislation
• Packaging and Packaging and Packaging Waste Directive (94/62/EC) – sets escalating targets for reducing packaging waste and for labelling of packaging’s recycling needs.
• Landfill Directive (1999/31/EC) – outlines the rules for landfilling and sets targets to reduce the amount of municipal waste going to landfill and is the driver for domestic landfill tax
• Waste Framework Directive (2008/98/EC) – the overarching EU policy on waste covering recycling targets, a definition of waste and national waste management plans as well as creating the “Waste Hierarchy”
• Controls on Animal By-Products Regulation (EC) 1069/2009 – sets rules for the disposal of animal carcasses and other animal parts.
• Industrial Emissions Directive (2010/75/EU) – introduces a holistic approach to environmental permitting in industrial activity.
• WEEE Directive (2012/19/EU) – sets targets for electronic waste recycling and lays out rules for recycling electronic waste.
The importance of targets
In April 2017, the then Secretary of State for the Environment, Andrea Leadsom stated that around a third of EU might be subject to changes following Brexit. Her statements imply that at some stage, environmental regulations will be examined and perhaps realigned with post-Brexit UK’s economic priorities. This is when the EU and the UK may begin to diverge in terms of environmental policies.
But although there has been much talk about the fate of environmental legislation, there has been little mention of targets. Once the UK leaves the EU, we will no longer be obliged to abide by targets set by the bloc. And given that we have objected to many of them, this is unlikely to be met with much angst by certain Conservative MPs.
For example, the UK has, in the past, disagreed with EU policy on renewable energy and has actively sought to prevent further target increases set by the Renewable Energy Directive. Britain is also likely to miss the existing 2020 targets.
One environmental policy which could fall victim to dropped EU targets is limiting the use of landfill as a waste disposal measure.
Introduced in 1996, the Landfill Tax was Britain’s first environmental tax, designed to enable the UK to meet targets set out in the Waste Framework, Packaging and Packaging Waste and Landfill Directives by increasing the cost of landfill and thereby making other advanced waste treatment technologies more financially attractive.
EU Member States are required to send no more than 35% of the volume of bio-municipal waste to landfill than they did during 1995 by 2020
Although landfill is cheaper than many other methods, it has its drawbacks, namely;
• you eventually run out of space
• gasses omitted from the waste decomposing makes the surrounding area very smelly
• there is a potential for local streams to become polluted from toxins seeping through the ground
• it is not always possible for the site to be used for residential or commercial development once it has been filled
The government will have to decide whether to keep existing landfill targets or relax them. This may be a tough call, especially if some industries are struggling from the economic downturn predicted to be caused by Brexit. They may put pressure on the government to ease environmental taxes to free up capital. But such a decision could be disastrous for the environment and economy in the long term.
Final words
The deeper we delve into Brexit, the more complications appear. Simply concentrating on whether environmental regulations will be transposed into UK legislation while ignoring the targets that underpin them will cause enormous confusion amongst an already jittery business community. It also puts the livelihoods of many people and entities set up to meet EU targets at risk.
Fisher Scoggins Waters are experts in construction, manufacturing and engineering law, based in London. We provide expert advice environment law matters and can act as your emergency response team if required. If you would like more information or need an emergency response team, please phone us on 0207 993 6960