6 January 2021

‘Is environmental regulation fit for purpose?’

This special report by Barrister, Gordon Wignall looks at whether today’s environmental regulation is fit for purpose. The context is the web of legislative measures which apply to the waste and recycling sectors, and in particular the requirements of the environmental permitting scheme.


On the basis that the purpose of environmental legislation is one which should encompass economic growth, then the conclusion to be drawn is that the system is not fit for purpose. What is more, the international competitive impetus on the UK government to champion the environment suggests that regulatory waters will be choppy for the foreseeable future, writes Gordon Wignall.

This is not to suggest that the vast majority of businesses do not operate effectively within the present framework or that protection of the environment should not be a priority. The difficulty is the disproportionate effect where the system fails. Extra safeguards are needed to ensure that efficient, innovative operators do not fall between regulatory gaps.

Difficulties

Five chief regulatory difficulties can be flagged up. A separate note [below] in letsrecycle.com goes on to comment on a recent case which offers ground for supposing that the courts may have responded.

Gordon Wignall is a barrister specialising in various environmental and trade issues, including nuisance, waste and environmental permitting, with related interests in competition and information law.

First, there is the withdrawal by the regulators of practical assistance as to what constitutes “waste”. Secondly, there is the failure on the part of both government and regulators to respond with sufficient speed to technical advances in the treatment of waste. Thirdly, the regulators are unclear about the bar above which an emission will deemed to constitute ‘pollution’, a bar which is progressively lowered. Fourthly, there are the difficulties caused by the discretionary decision-making of individual officers. Fifthly, there are the uncertainties caused by devolution.

Underlying all these issues lurk the elephant trap of the regulators’ enforcement powers. Despite the availability of non-criminal sanctions under the Regulatory Enforcement and Sanctions Act 2008, criminal liability remains the trusted means by which the regulator enforces its rules. There are very few defences and the regulator is likely to take criminal proceedings against the company’s officers.

The current waste regulatory framework is subject to an unfortunate combination of inflexibility and uncertainty as to what types of waste need regulation by way of a permit. The framework needs some clarification before continuing.

Bespoke permit

At the apex of this regulatory framework is the bespoke permit – expensive to obtain and to operate on an annual basis. Oddly, the bespoke permit is the default requirement for a waste process if there is no convenient made-to-measure alternative, however small the operation and however unlikely the risk of pollution.

As to the made-to-measure alternatives, they consist of standard rules permits and exemptions, at the heart of which are the European waste codes (or the list of waste codes, as we should now call them). These waste codes are intended to delineate the types of waste which can and cannot be treated by an operator, but in practice they give rise to substantial uncertainties when it is not clear that the material does in fact fall within the ambit of the relevant codes. If an operator gets it wrong, then it faces enforcement by the regulator on the basis that the operator does not have any permission to carry out its activities – a criminal offence.

At a lowest level of environmental risk, there are the Regulatory Position Statements and the Low Waste Risk Positions (LRWPs). These amount to qualified promises from the regulators that so long as the prescribed parameters are observed, a permit will not be required and the operator will not be prosecuted.

Five flags

Turning to the five flags.

The first is the withdrawal of regulatory assistance as to the meaning of waste. It is little short of scandalous that the national regulators no longer provide practical assistance to those needing certainty as to what will be classed as waste. It is wrong in principle that for many operators the first opportunity to obtain a determination as to whether or not something is “waste” should be in a criminal court.

Gov.UK coyly holds out the possibility that in England it may be possible to contact a local officer, but the Definition of Waste Panel was shut until “at least” 1 January 2021. Not so long ago, it was possible to pay a fee for an opinion that end of waste status has been achieved, an opinion which would substantially lift the fear of prosecution, promote confidence and avoid the burden of unnecessary regulatory expenditure.

The same abrogation of government assistance can be felt in the collapse of the RPS schemes formerly promoted by WRAP with assistance from the Environment Agency and DEFRA. These were funded with significant contributions from private industry and enjoyed detailed contributions from specialist experts. The Environment Agency Gov.UK website now contains a thin offering suggesting only that a periodic ‘review’ is under way.

So too the position of the reduced RPS and LWRP is one of commercial uncertainty. Entries on the LWRP list contain the warning: “The Environment Agency may review its LRWPs. It may decide the activity is no longer suitable for a LRWP or that the conditions need changing. You must regularly check that the LRWP you are benefiting from is still in place”.

Permitting system

The second flag is the problem that the permitting system does not allow for rapid technical advances in product development. For instance, an operator may have established its waste activity with an existing exemption, but should that same operator find a new way to process its waste in an equivalently safe manner, but not quite within the four walls of the same exemption, experience shows that the regulator is likely to look first to criminal enforcement rather than to the adaptation or development of the exemption. The problem is compounded by the breadth and uncertainty of what is understood by “treatment”.  A rapid response mechanism is needed from government when exemptions or standard rules permits become inadequate.

The third flag is the problem of the ‘ratcheting-up’ of standards. The sharp end of this problem is in the use of suspension notices, which are difficult to challenge. Ratcheting-up is a problem particularly when there is a general requirement to improve environmental standards, for instance in respect of water quality. Where there is an obligation to improve an environmental standard, at what point does “pollution” occur, justifying the service of a suspension notice?

The fourth flag is the discretionary decision-making of officers. Regulatory officers face their own pressures, not the least of which is the perception of colleagues and of local residents that they are not strict enough.

The Legislative and Regulatory Reform Act 2006 requires a regulator to act according to proportionate and consistent principles, targeting those activities where action is needed. The Deregulation Act 2015, requires a regulator to have regard to the desirability of promoting economic growth when contemplating regulatory action.

However, these legislative restraints are by no means always given serious consideration. An individual officer who decides that there has been a regulatory breach, in particular that an activity is outside anything allowed by the permitting system, is likely to initiate an expensive process which has a criminal sanction as its primary response. Regulators’ internal complaint systems are slow and inadequate.

Fifth and finally, there is the ‘problem’ of devolution. Whilst it is a legislative priority for the separate countries of the United Kingdom to be able to adopt their own regulatory rules, this creates areas of uncertainty for the waste and recycling industry.

In the context of a regulatory breach, for instance, where the permitting requirements are no longer met, it may be possible to offer the regulator an enforcement undertaking in England, but this possibility does not exist if the breach occurs in Wales.

In Chapter 4 of the  25 Year Environment Plan, 2018 (Increasing Resource Efficiency and Reducing Pollution and Waste) there is a declaration that “we will improve and develop our regulatory framework so that it provides strong environmental protection and standards while promoting economic growth: providing certainty for investment, stimulating markets and innovation, and setting a baseline for all”.

The majority of operators may be appropriately regulated, but the seams can give way dramatically. When they do so, the consequences are likely to be time-consuming and cost-ridden. It is those consequences which mean that the current system is not fit for purpose. Regulators and government can do so much more to provide positive assistance to make the 25 year plan a reality, and encourage rather than to stifle innovation.

AUTHOR

Gordon Wignall is a barrister specialising in various environmental and trade issues, including nuisance, waste and environmental permitting, with related interests in competition and information law. He practices out of London and Dublin.

Contact:  www.wiglaw.co.uk    email: gordon.wignall@6pumpcourt.co.uk tel: 0207 797 8400

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