Environment—Lexis®PSL comments on key developments in 2018 and 2019
In this year’s end of year comment, our Lexis®PSL Environment team consider what was their standout legal development in Environment in 2018. Our Lexis®PSL team also preview the anticipated talking points for Environment in 2019.
First published on Lexis®PSL on 12 December 2018.
What was the standout legal development in your area this year?
This year the government consulted on the Environmental Principles and Governance Bill, which aims to introduce and implement the first independent environmental regulator to ensure the UK’s environmental standards remain in place post-Brexit. This is thought of as a singular and unparalleled opportunity to establish a world-leading body to hold government to account for environmental outcomes, as well as enshrine key environmental principles, which will together help to deliver the government’s 25-YearEnvironment Plan.
On 26 June 2018, the European Union (Withdrawal) Act 2018 came partly in force, including s 16 maintenance of environmental principles etc, which requires the Secretary of State to publish, within six months, a draft bill with a list of environmental principles and a requirement to establish an independent body to monitor compliance with those principles, with the power to take proportionate enforcement action, including legal proceedings if necessary, if the independent watchdog considers that a Minister of the Crown is not complying with environmental law. It also requires the Secretary of State to publish a statement of policy in relation to the application and interpretation of those principles by ministers. The response to the consultation and the draft Environmental Principles and Governance Bill are expected before Christmas 2018.
How has this impacted on practice in your area?
This is a once-in-a-generation opportunity to improve and enhance environmental policy and environmental law in the UK. By creating a statutory statement of clearly defined environmental principles, the government can then devise a policy approach within this framework. Also, while the UK has a strong legal framework for environmental protection, including the implementation of environmental laws by regulatory authorities (such as the Environment Agency) and their enforcement through courts, the UK’s withdrawal from the European Union means that we will no longer be under the jurisdiction of the Court of Justice or the Court of Justice of the European Union. As such, the implementation of a new, independent environmental body to hold government to account on the environment will be critically important in replacing EU oversight, by providing independent scrutiny, objectivity, and impartiality for environment protection and enhancement. Additionally, the new body could have an even broader range of powers in terms of wider environmental governance.
What Lexis®PSL content would you recommend to find out more about these developments?
You will find comprehensive coverage of the Environmental Principles and Governance Bill in our Brexit subtopic, including:
- Practice Note: Brexit—environmental law implications
- Practice Note: Brexit—key publications on implications for environmental law
- News Analysis: Consultation on post-Brexit environmental principles and governance
What do you think will be the key development(s) next year?
Dealing with plastic waste has become an increasingly important development and momentum is certainly growing in this area. The UK government and European Commission (EC) have vowed to tackle the plastic waste problem with a number of policies and legislative proposals being developed to deal with specific plastics waste stream issues.
The EC’s Strategy on Plastics published in January 2018 provides a list of action plans to be taken that will improve the economics and quality of plastic recycling, increase the trust in recycled plastics and boost the market, curb plastic waste and litter and drive up investments and innovation. Of course the nature of the UK’s relationship with Europe post March 2019 will affect the extent to which the action plans work their way into England and Wales legislation.
At a national level, we have seen lots of work on plastics, such as the ban on microbeads, which entered in force in the UK earlier this year, plus a pledge to extend the single-use carrier bag charge.
Additionally, there are several ongoing consultations and proposals on plastic waste management, including: the ban on distribution and/or sale of plastic straws, plastic stemmed cotton buds and plastic drink stirrers in England; a proposal for a deposit return scheme, and the anticipated Waste and Resource Strategy.
We have also seen the consultation on a single use plastics tax (tackling the plastic problem), to which a response has been published, as well as announcements made in Budget 2018. The momentum of this all this work at European and national level is likely to build into 2019.
What do you think this will impact and how do practitioners find out more?
Legislative and policy changes in this area are likely to increase and will impact on several areas including producer responsibility, safe disposal, re-use and recycling obligations, waste management, permitting, registration requirements and tax regimes. For more information, see Practice Note: Waste types and controls—plastics and News Analysis: Budget 2018—environmental headlines.
Other developments of interest
We will also be watching with interest:
- streamlined environmental and carbon reporting: Following consultation by the Department for Business, Energy and Industrial Strategy the Companies (Directors’ Report) and Limited Liability Partnerships (Energy and Carbon Report) Regulations 2018 were made on 6 November 2018 and come into force on 1 April 2019. The regulations provide for a simplified energy and carbon reporting framework to apply from April 2019, following abolition of the CRC energy efficiency scheme and the introduction of corresponding increases in rates of climate change levy. The reporting framework will be UK-wide and implemented through the Companies Act 2006 as part of companies’ annual reports. Although the Streamlined Energy and Carbon Reporting regime will not apply to public sector organisations, it will apply to a number of private sector CRC participants. See: LNB News 18/07/2018 89 and LNB News 19/07/2018 19. See Practice Note: Mandatory environmental reporting
- the circular economy: Since 2015, the European Commission has been working on several amending directives, which were published in 2018, as part of their circular economy package with the aim of stimulating Europe’s transition towards a circular economy. This could be another key area of development in environmental law, as the amending directives are implemented in England and Wales. For more information, see Practice Note: Waste—the circular economy
- Brexit, the EU ETS, carbon price support and the Carbon Emissions Tax: The practicalities of how the EU ETS aspect of carbon pricing will continue (or be replicated) upon Brexit is evolving. The government stated in early 2018 a preference for the UK to reach a deal with the EU to remain in the EU ETS until the end of 2020 and this was reiterated in the Budget of 29 October 2018. In the scenario of a Withdrawal Agreement being entered into on the terms envisaged by the Draft Withdrawal Agreement, then the EU ETS mechanisms would continue to apply in the UK until the end of the Implementation Period. The 2018 Budget also revealed that in the event of a no deal Brexit, there would be a new Carbon Emissions Tax, to replace the EU ETS for the UK installations. This could be an important development in 2019. For more detailed analysis, see Practice Note: Emissions controls and carbon pricing in respect of carbon emissions from UK fossil fuel powered electricity generation and News Analysis: Proposed carbon emissions tax in case of a no-deal Brexit
- Environmental social governance (ESG): ESG is an umbrella term for a broad range of environmental, social and governance factors against which investors can assess the behaviour of the entities they are considering investing in, or have already invested in. While historically, ESG risks were often seen as likely to be less material than other business issues requiring attention and/or investment, in recent years the perception has changed. As such, this is a fast developing and growing area, where investors are likely to require guidance. See Practice Note: Responsible business, corporate social responsibility and environmental social governance—a guide for companies
- climate change litigation: This year has seen global moves to tackle climate change through legal proceedings, as groups and individuals seek to hold governments and companies accountable for the damage they are causing. Earlier this year, the UK government faced its first major climate change lawsuit, brought by 12 citizens through a legal group called ‘Plan B’. Additionally there were landmark cases including in California, where the cities of San Francisco and Oakland sued major oil companies for damages, and the Dutch Urgenda climate case where the court held that the Dutch government had a ‘serious duty of care to take measures to prevent’ climate change and to ‘mitigate as quickly and as much as possible’. For more information on this case, see News Analysis: Netherlands must reduce greenhouse gas emissions by 2020, Hague Court of Appeal rules (State of Netherlands v Urgenda Foundation). Further cases are also under way. This is a trend that is likely to evolve, with significant legal implications
As the UK prepares to withdraw from the EU in March 2019, Brexit will continue to be essential reading for all legal practitioners. See: Brexit—Lexis®PSL comments on key developments in 2018 and 2019.