Top 5 Environmental Legislation in 2017
On 29 March 2017, the UK Government served formal notice under Article 50 of The Treaty on European Union to terminate the UK's membership of the EU (following the June 2016 UK referendum on EU membership). Based on Article 50, the EU Treaties shall cease to apply to the UK and the UK exit will take effect in March 2019.
The legal consequences are complicated, especially in the environmental sector as many principles and obligations in our national law stem from EU legislation. UK Government has indicated that it will freeze into UK law the EU legislation in force at the point of the UK's exit to ensure continuity, but may choose to amend such law in due course.
However, environmental legislation has and will continue to change and in this blog I will be looking back over 2017 and picking out my top 5 significant changes. As this blog has to be relevant to businesses from all sectors, I have tried to concentrate on ‘across the board’ changes. We will start with EU withdrawal – probably the biggest change in not only environmental law but in the UK legislative arena.
European Union (Withdrawal) Bill
This Bill (commonly known as the Repeal Bill) sets out the power to repeal the European Communities Act 1972 and make other provisions in connection with the withdrawal of the United Kingdom from the European Union.
It provides that the European Communities Act 1972 will be repealed on the day the UK exits from the EU. It will restate in UK law all enactments previously in force under EU law. It would smooth the transition by ensuring that all laws remain in force until specifically repealed.
Any rights, powers, liabilities, obligations, restrictions, remedies and procedures which are recognised and available in UK domestic law under the European Communities Act 1972 before exit day will also continue to be recognised & available in domestic law after the UK leaves the EU.
On and after exit day the supremacy of EU law will no longer apply to any legislation passed from that point onwards.
Environmental Permitting (England and Wales) Regulations SI 2016/1154
These regulations came into force right at the start of the year on 1st January 2017. The aim of these Regulations was to consolidate the existing environmental permitting system, which integrates regimes covering waste management licensing, pollution prevention and control, landfill, waste incineration, the operation of large combustion plants, water discharge consents, groundwater authorisations and radioactive substances.
The environmental permitting regime requires those carrying on certain types of activity to hold an environmental permit. It provides operators with a "one-stop-shop" for environmental permits, covering a wide range of activities that release emissions to land, air and water, or that involve waste. The environmental permitting framework was originally created in 2007 to simplify the process of applying for, regulating and measuring compliance in permitting.
The legislation created a more efficient and effective regime, reducing the bureaucracy associated with the various separate permitting regimes that had previously been in place. A key component is that it allows applicants that would otherwise require several permits for activities falling under various regulations on a single site to complete a single application, and to be issued with one permit.
The framework introduces different levels of control, based on risk:
- exclusions (activities that may be undertaken without any permit);
- exemptions (activities that may be undertaken after registering, which is free);
- standard rules permits (standard requirements and conditions for the relevant activities are set out so that applicants can determine in advance whether the permit is applicable to their proposals); and
- bespoke permits (permits written specifically for activities which are unique or of higher risk).
Any organisation that currently holds an environmental permit, or is thinking of applying for one, should consider the amendment and consolidation of the regulations.
All facilities that require environmental permits currently, and that may require permits in the future, should be reviewed and checked for compliance.
Phase 2 of ESOS (Energy Savings Opportunity Scheme)
There was some uncertainty as to the future of the scheme. ESOS was one of the policy measures openly under consideration as part of the previous government’s 2015 energy efficiency tax landscape review, as well as being the UK implementation of the European Commission’s 2012 Energy Efficiency Directive.
In the aftermath of the June 2017 UK general election the Environment Agency, Scottish Environment Protection Agency (SEPA), Northern Ireland Environment Agency (NIEA) and Natural Resources Wales (NRW) have jointly advised organisations that they can now start carrying out energy audits as part of the compliance process.
Although there some exemptions for public bodies, the regulations require all other large UK organisations to take three important steps before the compliance date of 5 December 2019:
- measure their total energy consumption;
- conduct audits to identify cost-effective energy efficiency opportunities; and
- report compliance to their national scheme administrator - the Environment Agency in England, SEPA in Scotland, NIEA in Northern Ireland and NRW in Wales.
Alternatively organisations can comply automatically in certain cases. The main way to do this is by providing evidence that they have achieved certification to ISO 50001, the international standard for best practice energy management, across their organisation.
The one element of ESOS compliance that organisations are not yet able to begin is collecting the data for reporting their total energy consumption. The earliest this can begin is the start of 2018, as ESOS compliance requires a 12 month period of total energy consumption data which includes the qualification date of 31 December 2018.
Environmental Offences (Fixed Penalties) Regulations
The updated regulations set out the prescribed range of fixed penalties payable to various authorities, with regard to environmental offences committed under the following:
- Refuse Disposal (Amenity) Act 1978;
- Control of Pollution (Amendment) Act 1989;
- Environmental Protection Act 1990;
- Noise Act 1996;
- Anti-social Behaviour Act 2003;
- Clean Neighbourhoods and Environment Act 2005.
- Revocations and amendments
The revised penalties come into force in April 2018 and raise the amounts payable as fixed penalties.
Water Act 2014 (Commencement No. 8 and Transitional Provisions) Order SI 2017/58
Deregulation of the non-domestic water market in England took place in April 2017. The water market in England was a regional monopoly of more than twenty different companies. Whilst nothing changes about the water that reaches you or the infrastructure it passes through along the way, but account provision and billing is now managed by a business’ Licensed Provider of choice and organisations in England can now choose which company they want to supply their retail water services.
Eligible businesses, charities and public sector customers are no longer restricted to buying retail water services from their regional water company. Instead, they are now free to choose their water retailer.
Finally, looking forward into 2018 and beyond, I hope that:
The UK’s current environmental legislation is preserved pending proper review, full and open consultation on options for change
The level of environmental protection, and the ability of the public to participate in environmental decisions and take action in the courts where necessary, must not be reduced
Environmental legislation is not ‘watered down’ so that we will be able ensure on-going compliance with international law, regulatory stability and continued protection of the environment.