The Comply Direct Policy Blog gives you expert advice on how key policy developments, including Brexit and legislative reform, may affect your environmental compliance obligations now, and in the future. Be sure to check in for regular updates.
Key environmental policy updates from our global law firm partner Squire Patton Boggs
Posted: 1 July 2020
Content has been taken directly from Squire Patton Boggs' June edition of their ESH newsletter, which you can view in full HERE
The Environment Bill will not now resume until after the summer recess
Parliamentary scrutiny of the Environment Bill was paused on 19 March, but it was thought that the public bill committee scrutinising the bill was going to restart on 15 June and report by Thursday 25 June. However, the Secretary of State for the Department of the Environment, Food and Rural Affairs (DEFRA) confirmed that the bill will not be returning to parliament until after the summer recess. The committee is now scheduled to report by Tuesday 29 September 2020. Following the Committee’s final report, the bill will have a third reading and then be transferred to the House of Lords for further scrutiny.
EU starts revision of its packaging law
The EC published an inception impact assessment, i.e. its plan for the revision of Directive 94/62 on Packaging and Packaging Waste (‘PPWD’). The PPWD regulates the placing of packaging on the European market and the prevention and management of packaging waste. In line with the ambitions of the 2018 Plastics Strategy and the 2019 European Green Deal and the recently adopted new Circular Economy Action Plan, the Commission wants to make all packaging, including plastic packaging, reusable or recyclable in an economically viable manner by 2030. For more information, please see the SPB client alert.
EU to amend Waste Shipments Regulation to implement international law on plastic waste
The EC published a draft delegated regulation amending the annexes to the EU Waste Shipments Regulation 1013/2006 to ensure that the EU implements the decision on plastic waste agreed at the fourteenth meeting of the Conference of the Parties to the UN Basel Convention held in May 2019. This involves prohibiting the export of hazardous and hard-to-recycle plastic waste from the EU to non-OECD countries and setting out control procedures for the export of such waste to OECD countries. The Commission invites comments on the draft until 22 July. It plans to adopt the regulation in Q4 2020. It would then enter into force at the start of 2021.
EU to revise concentration limits for persistent organic pollutants (POPs) in waste
The EC published an inception impact assessment, i.e. its plan to update Annexes IV and V of POPs Regulation 2019/1021. The initiative follows-up on the new Circular Economy Action Plan and the 2018 Communication on the interface between chemicals, product and waste legislation (CPW). It aims to determine limits for new substances listed under the UN Stockholm Convention, and update existing values, in order to find the optimal balance between enabling recycling while at the same time substituting substances of concern. According to the Commission, this is particularly relevant in the case of POPs, which may be reintroduced into the economy in recycled material as otherwise already banned legacy substances. The Commission invites comments on its plan until 7 August 2020. It will prepare a full impact assessment throughout 2020 but does not plan to conduct a further public consultation. A legislative proposal is expected in Q2 2021.
Coronavirus updates from Environment Agency for producers
Posted: 30 June 2020
The Environment Agency have provided a further update since their initial announcement in April regarding the measures they were taking to continue fulfilling regulatory duties throughout COVID-19. Since then, developments have taken place, so we have summarised the key points for obligated producers to be aware of in our full news story HERE
COVID-19: Environmental Compliance Updates
Posted: 18 May 2020
Update: Compliance with ESOS and the impact of COVID-19
Although the deadline for compliance with Phase 2 of the Energy Savings Opportunity Scheme passed at the end of 2019, Comply Direct are aware that many organisations may have missed that deadline and are looking to comply as soon as possible in order to minimise the fines associated with non-compliance.
However, the impact of the COVID-19 Pandemic and the social distancing measures introduced by the Government in March 2020 have made the completion of on-site audit assessments difficult, or impossible. Although the regulator have not released a Regulatory Position Statement on the matter, we have been advised of the following in relation to conducting on site audits for ESOS phase 2 obligated organisations who missed the original deadline of 5 December 2019 whilst social distancing measures remain in place.
Organisations who are still required to complete their Phase 2 ESOS commitments should carry on with this as best they can.
Where site visits are not possible you can continue to complete the ESOS assessment without a site visit where sufficient energy use data and other information for the selected site(s) is available. A recommendation could be that further investigation is necessary for a given site to identify energy savings and these will need to be re-scheduled for completion an appropriate date.
Any organisation that has received an ESOS Enforcement Notice will still be expected to comply with the enforcement notice or inform the appropriate regulator why they will be unable to comply.
Posted: 7 May 2020
Environment Agency extends registration deadline for packaging producers
As of 20 April 2020, the Environment Agency published their COVID-19 Regulatory Position Statement for packaging producers. This statement is in regard to the original deadline of 07 April where obligated producers are required to register with the Environment Agency, either directly or through a compliance scheme such as ourselves. Due to concerns raised from producers not being able to provide accurate information by 07 April, the Environment Agency has therefore extended the deadline to 07 July.
This statement only applies to producers impacted by COVID-19. The expectation is for producers to take all reasonable steps to comply with regulatory requirements, using contingency plans available to help. If it is not possible to comply due to these exceptional circumstances, Producers must follow specific criteria listed on the links below. If they cannot provide sufficient evidence meeting the requirements set, the Environment Agency's usual position will stand and resubmission/late fees will apply.
WEEE estimated data from producers permitted by Environment Agency
Obligated B2C WEEE producers usually submit their data on a quarterly basis and in light of the current situation, the Environment Agency issued a statement in early April announcing that whilst they expect all those with obligations under the WEEE Regulations to take all reasonable steps to comply, they are doing what they can to support producers during this difficult time. Therefore, this statement confirmed that where actual accurate data cannot be obtained due to the impact of COVID-19 on businesses, WEEE producers can provide reasonable estimates for their ‘placed on market’ data. If estimated data is submitted, the Environment Agency expect records to be kept of the impact that COVID-19 has had on the data submission and the basis for any estimations.
The Q1 submission deadline remained the same (30 April 2020) and the statement confirmed that this position regarding estimated data will be reviewed for subsequent quarterly submissions. In addition, the EA have advised that late registration/ resubmission fees will still apply if the late registration is not a direct result of COVID-19.
Streamlined Energy & Carbon Reporting (SECR) deadline extension
Companies obligated to report in line with the SECR requirements are able to receive a 3-month extension period to file their Companies House accounts if COVID-19 has affected business ability to meet the original deadline. Affected businesses must apply for this 3 month extension before the filing deadline to help avoid penalties. Click the link below to view the official government guidance and for how to apply:
COVID-19 & WEEE Collections: Guidance from Environment Agency for handling waste transfer notes
Posted: 28 April 2020
Please note, the below information is from a statement released by the Environment Agency; the stances from Natural Resources Wales and the Scottish Environment Protection Agency on the topic are both slightly different, so we have provided links to each of their guidance documents below also.
Key points from the EA's guidance on social distancing when signing and handing over waste transfer and consignment notes in person which will be adhered to by waste collection companies when facilitating a collection from your site:
- Instead of a signature, the responsible person should provide their full name, date of birth and contact number.
- If you are transferring or receiving waste, you do not need to physically hand over (or receive) the waste transfer or consignment note. But you must give (or receive) all the information and data normally provided in a note. This must be done before the waste transfer or at the time of the transfer – but not later.
- For each waste transfer you must send or receive (as appropriate) the completed paper copy (without the signature) of the waste transfer or consignment note. You must do this as soon as possible and not later than 10 calendar days after the waste transfer has taken place.
- You must keep a record of any waste you transfer or receive during the period of time you use this COVID-19 RPS. These records must include all the information and data required by the waste transfer note and consignment note.
- This COVID-19 RPS will be withdrawn on 30 June 2020 unless we extend it.
Budget 2020 Announced – Plastic Tax Consultation Launch
Posted: 11 March 2020
Today’s (11 March 2020) budget announcement from the government brought with it a number of spending and taxation commitments for environmental purposes.
These include removing Red Diesel tax breaks, investing significant funds into a “nature for climate fund”, allocating an additional £10m to support the design and delivery of net-zero policies / programmes and a brief update on the upcoming “plastic packaging tax”.
The Future of the WEEE & Batteries Regulations
Posted: 3 March 2020
Following on from the release of the government’s Resources and Waste Strategy in December 2018, which you can read more about HERE, we are now in the year when we can expect to see consultations on amending the WEEE and Batteries producer responsibility regimes.
As stated in the Resources and Waste Strategy document, the aim of these reviews is to “incentivise more sustainable product design, increase recycling and ensure alignment with the wider Extended Producer Responsibility framework.” After these reviews, government will change the current regulations as required.
Post-Brexit update - What does this mean for environmental legislation?
Posted: 14 February 2020
As the UK has now exited the European Union, we can now look forward to making progress beyond that significant milestone. We are now in the “Implementation Phase”, meaning as of 31 January, the UK will make no contributions to the EU and will have no say in EU counsel, however, we are still required to implement EU Directives introduced until 31 December 2020. At the end of the Implementation Phase, all EU law will be converted into UK law but with relevant UK amendments; an agreement is required at this stage with the EU on our future relationship. By the end of 2020, we expect to have access to a list of all converted EU laws and the amendments.
In terms of expected environmental consultations, unsurprisingly Brexit has caused a delay in parliament on consultations that should have already happened, therefore, we hope to see these released very soon, specifically the further producer responsibility reform consultations in Summer 2020. A response to the first ever public consultation regarding an Environmental Strategy for Northern Ireland is also expected shortly, to provide a set of environmental outcomes around climate change action, plastic pollution, zero waste plans and governance.
Government publish responses to packaging consultations
Posted: 25 July 2019
On the 23 July 2019, The Department for Environment, Food and Rural Affairs (DEFRA) and HM Treasury released a summary of the responses they have received to the four packaging related consultations that all closed in March 2019. The documents also include the proposed next steps and can be found via the links provided below.
Plastic packaging tax consultation (HM Treasury response)
Government confirm plastic straws, cotton buds & stirrers ban from April 2020
Posted: 22 May 2019
Today (22 May 2019) the government published their response to the consultation proposing a ban on plastic straws, cotton buds and drink stirrers – you can read the full response document HERE.
The consultation, which closed in 2018, intended to gather views from industry and the public on the usage of these products and their perceived necessity.
As a result of the consultation, the government has committed to banning the supply of plastic straws, cotton buds and drink stirrers in England as of April 2020.
DEFRA release packaging consultations on DRS, PRN reform, plastic tax & UK recycling consistency
Posted: 18 January 2019
Back in December 2018 the government published its long-awaited Resources and Waste Strategy. Today, Monday 18 February 2019, DEFRA have released 4 expected consultations all with a 12 -week completion period:
- Introducing a Deposit Return Scheme (DRS) for drinks containers (bottles and cans)
- Waste and recycling: making recycling collections consistent in England
- Packaging waste: changing the UK producer responsibility system for packaging waste
- Plastic packaging tax
Click here to read more about the content of each consultation including how to respond.
Government release Resources and Waste Strategy
Posted: 18 December 2018
This morning (18 December 2018), the government has published its long-awaited Resources and Waste Strategy. It is a significant document of 146 pages covering a huge range of waste related issues. Although reform of the Producer Responsibility System for packaging appears to be the headline issue, alongside mandatory food waste collections, progress has been made on other sectors of the waste value chain and the Circular Economy (or a movement towards a more Circular Economy) is a running theme throughout.
National Audit Office publish report on UK packaging recycling obligation system
Posted: 23 July 2018
Following an announcement in March 2018 that a review of the packaging recycling obligation system was to be carried out by the National Audit Office (NAO) on behalf of the Environmental Audit Committee (EAC), the official report has been released today (23 July 2018) detailing the findings. The initial requirement for the review was due to concerns raised by the EAC that the system is not very transparent and therefore, vulnerable to fraud and non-compliance.
This subsequent report is 60 pages in length and can be downloaded in full HERE.
We have provided a summary HERE outlining the key findings.
Recommendations on the packaging regulatory reform have been presented to the Secretary of State
Posted: 15 May 2018
A finalised list of recommendations for the packaging reform have been published today (15 May 2018). This came as a result of an initial discussion called for by the Secretary of State Michael Gove in December 2017, leading to three industry representative associations engaging with multiple stakeholders within the packaging supply chain in the UK to discuss the packaging reform.
Consultation on Environmental Governance on the horizon? - update 1 March 2018
In relation to our update of 13 November 2017 below, a consultation is now expected in the very near future with regards to a new Environmental Governance. Selecting a new independent body to hold the government to account poses the question of what the Environment Agency's role will be going forward and whether they will perhaps focus on certain sectors, potentially Waste specifically.
As soon as we have full details of the consultation, we will communicate this and provide information on how to respond.
Brexit Blog - our very own Brexit expert Liz Watson provides a February update - update 8 Feb 2018
Liz Watson attended an IEMA Brexit roadshow in February 2018 and provides the following update:
The withdrawal bill formally referred to as the great repeal bill, has been stalled in parliament. Over 500 amendments have been debated to the bill since it was introduced. The timetable for having the withdrawal bill passed onto the statute books is unclear – it has always been “spring 2018”. The longer the withdrawal bill takes to pass the less time we have to pass amendments to regulations through the bill, so time is of the essence ahead of the March 2019 deadline. DEFRA advise there are 1200 pieces of environmental legislation affected with 850 needing amendments, plus 100 new statutory instruments (SIs) will need passing between the withdrawal bill coming into force and March 2019.
Chemical companies do want to stay in REACH post-Brexit but it must be noted that this is administered in Europe and will give the EU some jurisdiction over the UK which was set down as a red line not to be crossed by the government. We will keep you updated on this.
A new environment act for the UK?
A number of environmentally focused organisations are looking to lobby the government for a new environment act post-Brexit, which the government are currently looking into. This could help fill in for some of the high-level frameworks which we currently get from the EU treaty (Article 11) in terms of environment protection. This would cover the goals/principles such as monitoring and reporting targets and KPIs which are responsibilities of government departments.
Michael Gove reveals plans to replace the Environment Agency - update 13 November 2017
Tomorrow (14 November) sees the return of the Brexit Bill in parliament as Michael Gove, the environment secretary of state, reveals plans to replace the Environment Agency with a new regulatory body which would have greater power than the Environment Agency and deliver a green Brexit.
Yesterday (12 November) Michael Gove said outside the EU we would have the chance to make changes and there would be a consultation in the new year on establishing "a new, world-leading body to give the environment a voice and hold the powerful to account. It will be independent of Government, able to speak its mind freely.
“And it will be placed on a statutory footing, ensuring it has clear authority. Its ambition will be to champion and uphold environmental standards, always rooted in rigorous scientific evidence.
“We will consult widely on the precise functions, remit and powers of the new body but we are in no doubt that it must have real bite.
“We also need to ensure that environmental enforcement and policy-making is underpinned by a clear set of principles. Environmental principles are already central to Government policy.”
Currently, it is unknown once we leave the EU how the powers of the Environment Agency will change and who will take on environmental powers and decisions.
We will keep you up to date on the progress of this as it happens.
General Election 2017, Manifestos - update 5 June 2017
The General Election 2017 is just days away, and with this in mind we have reviewed the manifestos of each of the 4 main political parties and importantly examined all the key points in their manifestos for our environment.
The Conservative Party
Back in 2015, the Conservative Party voiced their bold statement - to be the 'greenest government ever'. Whether this statement has become true or not remains to be seen, however, their manifesto outlines plans that may support the opinion that the work on our environment is nowhere near finished.
The Conservative Party have made it clear in their manifesto that they are fully supportive of the environmental and legislation around the recycling waste management. Their manifesto states that it pledges to support 'comprehensive rubbish collection and recycling'. The Conservative party's manifest also outlines admitting that more needs to be done to get to the environmental standards that we want as a nation, promising to 'do more to reduce litter' which includes 'supporting better packaging' and take new powers to force councils to remove the litter from roadsides.
The Great Repeal Bill is focused on in-depth in the Conservative manifesto. The Great Repeal Bill will convert existing EU legislation into UK law, meaning that once these laws are made UK law the government that wins the election will the right to edit and improve or amend any particular piece of legislation it wishes to.
The determination of the Great Repeal Bill could give a favourable advantage to the Conservative party, as workers in the UK will have comfort knowing that the rules will not be changed overnight. The conservatives have also outlined their commitment to publishing a 25 Year Environmental Plan and take back our own powers for our environment.
The Labour Party
Labour has made it clear that their manifesto is determined to protecting environmental laws ahead of Brexit. The Labour party's main straplines have been aimed at 'Creating an Economy that works for all' and 'For the Many, Not the Few'. The Labour manifesto states that they will set guiding targets for plastic bottle deposit schemes working with food manufacturers and retailers to reduce waste'.
The manifesto by the labour party outlines their plans for a Clean Air Act, to look after habitats and species and build relationships with farmers. In connection with the Conservative Party's wording around the Green Repeal Bill, Labour's manifesto also outlines their intentions to back the Great Repeal Bill in terms of the EU Rights and Protections Bill, ensuring there is no 'detrimental change' to environmental protections. With Brexit in progression, it is essential that there is a sense of certainty in the environmental policies which the Labour party has set out, making sure that workplace, consumer rights and environmental protection are the prime focuses. The Labour party's wording includes 'making sure that all EU-derived laws are of benefit - including workplace laws, consumer rights and environmental protections'.
The Liberal Democrats
The Liberal Democrats manifesto includes pledges on waste which include a statutory 70% recycling target and a tax on incineration. This manifesto expresses a new commitment to introduce and pass the 'Zero Waste Act', which would include legally-binding targets for reducing net consumption of key natural resources, and introducing incentives for companies to improve natural resource efficiency. Other outlined plans by the Liberal Democrat's manifesto are the introduction of a 5p charge for disposable coffee cups, which would 'build on the success' of the introduction of the plastic carrier bag charge. Their manifesto repeats the 2015 pledge to establish a coherent tax and regulatory framework for landfill, incineration and waste collection. The Liberal Democrat Party has promised to deliver food waste collections to at least 90% of homes by 2022.
The Liberal Democrats target the Conservative party critically in their manifesto, claiming that the Conservatives are determined to take the UK back to the 1980's, as well as stating that Theresa May is creating a 'cold, mean-spirited Britain'. They also insist that they have promised a second referendum on EU membership, believing that the EU has created the highest environmental standards in the world.
The Green Party
The Green Party's manifesto has pledged to ensure that existing environmental laws are retained and enhanced in the UK no matter what the future holds, policies which include the Precautionary and Polluter-Pays principles which would be transferred into UK statue books and therefore this looks likely that the Green Party would opt in favour of the Green Repeal Bill. They have outlined that they would introduce a new environmental regulatory framework to effectively monitor and enforce environmental law here in the UK, and guarantee strong protections for our natural environment and ocean, including a long-term 25-year target for biodiversity, water and air quality.
The Green Party's manifesto also focuses on the energy system in the UK, stating it is currently 'broken' and is not delivering what households and businesses need. Therefore, The Green Party has promised to breathe life back into the Climate Change Act by investing in an energy system fit for the 21st century and ensuring that all new investment in energy is directed towards clean and renewable energy. They also state that they would promote the culture of reusing and refilling through the introduction of a bottle deposit scheme and free public water dispensers and a community refill scheme.
We will keep our members up to date with all the latest news and changes to legislation as a result of the General Election and Brexit. In the meantime, if you any questions, please get in touch with us.
General Election - update 27 April 2017
Following on from our first Brexit blog entry below discussing Article 50, the Paris Agreement and the Circular Economy package our next insight into Brexit shifts to look at the immediate decision of a General Election.
The Prime Minister, Theresa May has shocked the whole country and the EU with her announcement of an emergency General Election, taking place on 8 June 2017. This action by May has placed even greater uncertainty over the future relationship between the UK and the EU and the policy measures and legislation which will apply following Brexit. MP's approved a motion in parliament on 19 April calling an election some three years ahead of when the next ballot was set to be called. The Prime Minister had previously ruled out an early General Election, however, upon changing her mind, Theresa May informed the country that the decision of a General Election had been taken to shore up support within Parliament over the UK's negotiations to leave the European Union, which could work in the UK's favour when negotiating terms for a UK exit from the EU.
What lies ahead for our policies?
The truth is, no-one has a definitive answer until we have seen which government will take power and what measurements will be taken to bring a calmer and hopefully a more sustainable Britain post-Brexit. The current government has previously confirmed that existing laws from the EU legislation will be safeguarded before Brexit, with the UK working in the future to create our own UK driven environmental policies. The Tory commitment to the Great Repeal Bill offers some short-term security for our environmental policies. As reported on our first Brexit blog, the Repeal Bill is a piece of legislation which will transpose all EU law into UK law in March 2019. 50 pages long, the paperwork will include all existing EU Environmental legislation including regulations on Packaging, Waste Electrical and Electronic Equipment (WEEE) and landfill.
It's sure that no matter which party is elected on the 8 June, leaving the EU will be a difficult task for whoever is in charge. Keep checking in to find all the latest updates on these historical events!
Brexit Blog, Brexit Begins - update 19 April 2017
31 March 2017
On March 29 2017 Theresa May triggered Article 50 firing the starting pistol on the two-year process which will see the UK leave the EU in March 2019. However, rather than a sprint to the finish, the next two years promises unpleasant economic hurdles and political obstacles, not unlike those to be faced by the Comply Direct team when we tackle the Tough Mudder course later this year.
The minutes of meetings of the Bank of England used the word uncertainty 123 times in 2016 a rise of 78% on the year before, and the ‘u’ word promises to continue trending throughout 2017. In this, the first of our Brexit Blog series, we aim to clarify what we know (and don’t know) about the impact of Brexit on Environmental issues and compliance.
Rather than a bolt from the blocks, after any initial anticipation at the triggering of Article 50, for now, there is just an eerie silence. Over the next two years Britain will remain a member of the EU and will continue to be bound by EU law and, unless all 28 member states agree otherwise, will continue as such until March 2019.
As the pistol was still smoking, the 30 March 2017 saw the publication of a government white paper setting out the terms of the Great Repeal Bill, a piece of legislation which will transpose all EU law into UK law in March 2019. A task made harder, following the admission that the government doesn’t actually know how many EU laws currently form a part of UK law.
The bill, which will be some 50 pages long, will include all existing EU Environmental Legislation including regulations on Packaging, Waste Electrical and Electronic Equipment (WEEE) and landfill. Should the Circular Economy Package become EU law in the next two years, it will be transposed too.
Controversially the Great Repeal Bill will also allow for the amendment (and repealing) of legislation without parliamentary scrutiny. The government ‘promises’ to only use these powers for technical amendment, rather than policy shifts. But here, we enter murky waters, where is the line between a technical amendment and a policy shift? Despite assurances on the use of delegated powers, the white paper outlines no safeguards.
Brexit and the Paris Agreement
The Paris Agreement sets out legally binding commitments for cutting carbon emissions. The UK signed on the dotted line in 2016 and currently participates in a burden-sharing agreement for cutting carbon emissions across EU member states through the Emissions Trading Scheme (EU ETS). The UK could remain in the scheme following a departure from the EU. However, uncertainty over the future of EU ETS remains.
Brexit and the Circular Economy Package
The Circular Economy Package aims to do away with the traditional linear model of take, consume, throw away, and move towards a circular model of reuse, repair and recycling.
DEFRA has indicated that it expects the Circular Economy Package to become EU law in the next two years, meaning it may well be transposed into the UK law under the Great Repeal Bill. Even if the Circular Economy Package is not transposed into UK law, or is subsequently amended, some obligations proposed under the Package (e.g. minimum recycled content in certain products), would indirectly apply to the UK because they affect products being supplied to the EU.
Pulling up short
So, we have not yet reached the first hurdle. But the UK exit from the EU promises to be a bumpy ride.