Environmental developments in an uncertain political climate

Transcription

1 Environmental developments in an uncertain political climate Simon Colvin Partner Head of National Environment Team DDI +44 (0) M +44(0) Weightmans LLP

2 Summary Macro - Brexit White Paper and Great Repeal Bill - Circular Economy - Air Quality - Energy & Carbon Micro - Japanese Knotweed - Thames Water case - Duty of Care and Waste Crime - Regulatory Growth Duty Weightmans LLP 2

3 Brexit White Paper (1) 29 March Art 50 Notice 2 years to negotiate departure (longer if all EU MS agree unlikely) Until leave UK remains full member and must comply with all EU rights/obligations 12,000 EU Regs, 7,900 SIs and 1,302 Acts Great Repeal Bill - Repeal ECA mirror/flip existing EU Law into domestic law on day of departure = certainty - both directly applicable laws and implementing legislation - Historic CJEU decisions binding - EU treaty rights preserved Weightmans LLP 3

4 Brexit White Paper (2) But gaps e.g. references to EU institutions, regimes, systems so that some legislation will no longer work DEFRA SoS Andrea Leadsom said 25-33% of EU derived environmental laws will not work post Brexit Therefore GRB will include power to correct statute book through secondary legislation ongoing during negotiation process to take effect on departure point of interest as DEFRA already working on this e.g. TFS will get to know and see in coming months what these areas are and how Government intends to address gaps Weightmans LLP 4

5 Brexit White Paper (3) GRB will also include powers to implement departure agreement to reflect terms agreed with EU But limited scope of power nothing new per se What will the departure agreement say? - Nothing as there will not be one! - Accede to ongoing compliance with and observance of EU environmental law? That s what the EEA provides between the EFTA and EU Easy concession for UK Government Weightmans LLP 5

6 Circular Economy Package (1) Weightmans LLP 6

7 CEP (2) 2 Dec 15 published by EC (round 2) 4 new legislative proposals waste generally, packaging, landfill and WEEE Improve waste management practices in line with waste hierarchy Long term vision and strategy to guide investment Weightmans LLP 7

8 CEP (3) Revised EU targets for recycling 70% of municipal waste and 80% of packaging waste by 2030 New binding target to reduce landfill to a maximum of 10% of total waste by 2030 Latest on CEP - Trilogue negotiations between EC, EP and E Comm commenced on 30 May 17 - EC (made up of MS reps) seeking lower targets e.g. 60% municipal recycling target for 2030 Weightmans LLP 8

9 CEP (4) But Brexit? - New directives in yes EU work plans - Part of transitional arrangements? If not CEP, then what? - More EfW FCC? - Extended producer responsibility schemes? - Industrial Strategy very limited information - DEFRA 25 year Environment Plan? Spring Strategic waste plan? - In any event suspect no UK initiatives until post March 19 unless Weightmans LLP 9

10 Air Quality (1) Directive 2008/50/EC on ambient air quality and cleaner air for Europe OJ 2008 L152/1 Limit values are set for: - Particulate Matter (PM10 and PM2.5) - Sulphur Dioxide (SO2) - Nitrogen Dioxide (NO2) - Lead - Benzene - Carbon Monoxide Infraction proceedings UK and many other MS Weightmans LLP 10

11 Air Quality (2) Weightmans LLP 11

12 Air Quality (3) ClientEarth case: - 29 April 2015 Supreme Court orders DEFRA to develop revised air quality plan DEFRA s attempt inadequate - December 2015 revised plan published - November 2016 plan quashed and Government ordered to issue revised plan by 24 April 17 for consultation and to be finalised by 31 July 17 - April 2017: Government seeks permission to delay publication of new plan pending general election rejected by courts Government publishes widely criticised plan - May 2017 ClientEarth announces ready to launch further legal challenge Weightmans LLP 12

13 Air Quality (4) Next steps: - Consultation closes 15 June Revised plan published 31 July Further challenge? Posturing by ClientEarth - Post General Election if decent Conservative majority likely to see new strengthened plan (strong plan not a vote winner) - Role of CJEU as infraction proceedings pending? - Impact of Brexit? - Practical impact: Infrastructure projects Vehicle emissions Generators Permitted activities Weightmans LLP 13

14 Energy & Carbon Paris and beyond (1) Paris Agreement signed and ratified by UK National Defined Contributions (NDCs) to achieve 2 o C target by 2020 and 5 year intervals after that UK submitted joint NDC with EU Negotiations ongoing as to UK allocation of EU NDC Brexit UK either continues as part of EU team, or submits its own NDC (NB no backsliding ) Weightmans LLP 14

15 Energy & Carbon Paris and beyond (2) UK GHG reduction tgt of 57% by 2030 = fifth carbon budget under CCA 2008 (EU only 40%) BUT policy gap current policies only deliver 50% of necessary reductions role of Emissions Reduction Plan Impact of US departure adverse PR but 3 years (+ 1 year) to leave and that coincides with next US election may not leave after all Weightmans LLP 15

16 Energy & Carbon CRC, ESOS & CCL CRC scheme 2010 CCA 2008 scrapped in 2019 ESOS 2014 Energy Efficiency Directive 2012 (NB current enforcement) 2019 new system based on ESOS and CCL/CCAs to replace CRC and generate 1bn, but perhaps not Talk of a single carbon pricing and tax system - Government emissions reduction plan and energy/carbon reporting consultation both delayed by Brexit and general election Weightmans LLP 16

17 Energy & Carbon CRC, ESOS, CCL & EU ETS Framework there - Paris Agreement, CCA 2008 and carbon budgets just need the detail EU ETS goes/stays? EU system based on UK approach Too many EU links to remain Managed handover towards 2020 and end of current Phase 3 EU ETS cycle Possibly align with new single carbon pricing and tax system in 2019 Weightmans LLP 17

18 Japanese Knotweed Wildlife & Countryside Act 1981 EU Invasive Species Regulations 2014 Infrastructure Act INNS SCA SCO Third party claims cost of treatment and reduction in value of property - Network rail case Weightmans LLP 18

19 Thames Water (1) The Guideline TW - fine of 20.3m (inc. 600k of EA costs) 8 Sites Long period 21 incidents (approx. av. of 1m each) Weightmans LLP 19

20 Thames Water (2) Key sentencing considerations: - History of offending - Message home to shareholders - 2 weeks profit - With VLOs focus on turnover and disregard tables Key messages: - Learn lessons not cheaper to offend - Engagement of owners/board lines of communication/reporting framework - Adapt systems and incident response protocols so aligned with Guidelines Weightmans LLP 20

21 Poll Q have the increased fines for Environment, Health and Safety offences improved/enhanced the focus of your company s/your clients senior managers/board of directors to EHS compliance? A Yes/No Weightmans LLP 21

22 Duty of care and waste crime (1) Waste Crime - 600m+ S34 EPA You must take all reasonable steps to: - prevent unauthorised or harmful deposit, treatment or disposal of waste - prevent a breach (failure) by any other person to meet the requirement to have an environmental permit, or a breach of a permit condition - prevent the escape of waste from your control - ensure that any person you transfer the waste to has the correct authorisation - provide an accurate description of the waste when it is transferred to another person Weightmans LLP 22

23 Duty of care and waste crime (2) Evidence of increasing enforcement of duty of care by EA How far do you go? - Review of permit terms/exemptions? - Sites visits and audits? - Discussions with regulators? Do not rely on your contract with other parties this is trumped by the Duty of Care Look out for waste crime white paper: - Greater focus/emphasis on duty of care - Proportionate responsibility for illegal waste sites Weightmans LLP 23

24 Poll Q - Are you confident that your company and/or your clients are fully compliant with their waste duty of care obligations? A Yes/No Weightmans LLP 24

25 Regulatory Growth Duty (1) Statutory economic growth duty (Deregulation Act 2015): - when exercising regulatory function must have regard to promotion of economic growth - ensure regulatory action: taken only when needed; and is proportionate - Guidance regulators must have regard to guidance: Growth is an important factor alongside social/environmental factors Regulators must be transparent and accountable in relation to role of duty in their decision making Weightmans LLP 25

26 RGD (2) Applies to regulatory functions including enforcement up to point of referral for decision on instigation of criminal proceedings If adverse/negative impact from regulator s activity consider how minimise impact by adapting activity Used as ground for appeal against regulatory decision 3 primary areas: - Minimum burden e.g. no multiple or uncoordinated inspections/data requests, cost to business when focused on regulation and not growth - Proportionate in decision making - Understand business environment Weightmans LLP 26

27 RGD (3) Practical interpretation of duty for regulators as per guidance: - Discuss cases of non-compliance, be clear about what is required to achieve compliance and discuss reasonable timescales - Employ best intervention to achieve compliance - Communicate decisions clearly and promptly Practical tip challenge regulators to justify how their approach is in line with the RGD and the guidance Weightmans LLP 27

28 Next Time Specific legal developments: - REACH - TFS - EU ETS - Air Quality - Any other areas Policy developments: - 25 year Environment Plan - Emissions Reduction Plan Weightmans LLP 28

29 Questions Simon Colvin Partner Head of National Environment Team DDI +44 (0) M +44(0) Weightmans LLP 29