Robbie Staniforth, head of policy at Ecosurety, looks at what the Environment Bill could mean for future waste legislation.
OPINION: Finally, the Environment Bill looks to be on a safe track towards royal assent following its introduction at the end of last month. The powers within the bill cannot come too soon given the uncertainty of legislative direction in a post-EU membership world.
The bill will affect many areas of environmental legislation, but it is the resources and waste section that is the most prominent in terms of size and scope. It could mark a significant improvement in the way the country views the use of materials and products, aiding the transition to the much more circular economy.
Given the strong majority enjoyed by the Prime Minister in the House of Commons, any significant revisions to the bill are most likely to come from the House of Lords. However, I expect that the bill will pass in a similar state to its current form as it looks very similar to the version introduced at the end of last year, before the general election hiatus. It certainly covers the recent high-profile packaging commitments outlined in the government’s 2018 Resources and Waste Strategy, and more specifically, for extended producer responsibility, or EPR.
Once adopted, these primary powers will give the government the ability to pass on the full net costs to producers, based on fees that can vary “according to the design or composition of the products or materials to which the regulation relates, the methods by which they are produced or any other factor.” While producers will now be looking to understand the secondary legislation needed to execute the powers granted in the bill, they will be relieved to hear that the government “must consult persons appearing to it to represent the interests of those likely to be affected” before introducing these new regimes. The devil is always in the detail when new laws are being introduced, and it must be noted that over the last few years, Defra have expressed renewed desire to get into the detail required.
Particularly, there have been concerns about the potential for producers of packaging to be double penalised in Scotland, if the UK packaging laws are not changed in tandem with the introduction of a deposit return scheme. They will be relieved to understand that the Environment Bill gives powers to the UK Government to make the minor amendments required. This could mean that UK packaging legislation goes through one final revision before the total overhaul expected in 2023.
However, it is not just packaging producers that will be affected by these new powers. There are also clauses that pave the way for new EPR regimes to be introduced by future governments as “the relevant national authority may by regulations make provision for imposing producer responsibility obligations on specified persons in respect of specified products or materials.” Furthermore, future governments will have the option to introduce a deposit return schemes for such materials and products.
I have lost count of the number of times a new employee has innocently asked the question: “why do these laws only affect packaging, electronics, batteries and vehicles?”. While the EU has played a vital role in the introduction of EPR, it has also provided a convenient excuse for successive UK governments not to go further. The prevailing wisdom was that if the EU wasn’t doing it, the UK wasn’t interested. The Environment Bill provides an opportunity for future governments to consider proposals for new regimes based on their own merit, rather than simply mirror activities of our neighbours.
“While the EU has played a vital role in the introduction of EPR, it has also provided a convenient excuse for successive UK governments not to go further”
The government cited textiles, tyres, bulky waste, fishing gear and construction waste in the Resources and Waste Strategy but the timescales are long (2022) and capacity is finite. Given the updates required for packaging, WEEE and batteries, the reality is that these issues are significantly down the pecking order unless David Attenborough can rouse public concern for these poorly regulated waste streams to the plastaphobic levels of 2018.
Speaking of which, the plastics supply chain will again be alarmed by the provision of powers to introduce a charging regime for any single-use plastic item. It seems the government are looking to replicate the perceived success of the single-use carrier bag charge and are intent on giving themselves a full range of powers to charge, ban or tax. However, the powers required to introduce the Plastic Packaging Tax touted in previous Budget announcements are not present in the Environment Bill as they will be included in an, as yet unpublished, Finance Bill.
Getting the primary legislation in place is a vital first step towards better resource governance in the UK. It provides the power and scope to create vital new laws. However, the proof of success will be in the way the Government chooses to exercise these powers to create new secondary legislation. In terms of new legislation, I’m hoping that we ain’t seen nothing yet.