Legal and policy changes in 2016

15th January 2016


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Clive Blackburn

the environmentalist highlights some the major changes due over the next 12 months

Last year was a momentous one for the environment and sustainability. On the global front, COP21 at the end of the year delivered a new climate deal. In Europe, the commission finally unveiled its circular economy package in December. Domestically, the election of a majority Conservative government in May heralded the end of schemes to support the development of renewable energy and more energy-efficient buildings. This year may not be so hectic on the legislation and policy front, but there are still some major developments planned of which practitioners should be aware.

The great unknown is the UK referendum on EU membership. The date of the poll has yet to be decided but, whether it is this year or next, discussion on the ramifications of Brexit will undoubtedly become more intense during 2016. Given that around 80% of UK environmental legislation originates from Brussels, any withdrawal could have widespread consequences.

Air quality

In April 2015, the Supreme Court ordered the environment department to produce a meaningful plan by the end of the year to ensure that the limits on nitrogen dioxide (NO2) emissions are met as soon as possible. In 2013, 38 of the 43 air quality zones in the UK exceeded the annual NO2 limits set by the EU ambient air quality Directive, which came into force in 2010. Defra issued a consultation in September 2015 on proposals to improve air quality in each of the 38 areas, including the establishment of a national framework of local clean air zones, possibly restricting access to some vehicles. The final plan was published in December and included the creation clean air zones in five cities (Birmingham, Derby, Leeds, Nottingham and Southampton), which will cover old diesel buses, coaches, taxis and lorries. A consultation on the zones will be held this year. The government is also extending the plug-in car grant beyond March 2016 to support the transition to cleaner vehicles.

The Scottish government consulted on a draft low-emissions strategy for Scotland in 2015 to set national standards for the introduction of low-emissions zones in the country. The draft provides a summary of air quality today and why more action is required to reduce levels of pollution further. Under the draft, local authorities are required to take several actions this year, including taking into account the objectives and policies in the strategy in preparing development plans and when undertaking development management.

Biodiversity and natural capital

The European commission’s “fitness check” of the Birds (2009/147/EC) and Habitats (92/42/EEC) directives is part of its regulatory fitness and performance programme (REFIT), which aims to make EU law “simpler and to reduce regulatory cost”. A public consultation to gather views and opinions on the directives and their implementation to date closed on 26 July 2015. The commission received 552,470 responses – the largest for an online consultation. The consultation followed an evidence-gathering exercise among business bodies and NGOs. Emerging findings were released at a stakeholder conference in November and the final results will be published in the second quarter of 2016.

A red tape review of construction rules, announced on 2 December by business secretary Sajid Javid, includes environmental requirements, including the Habitats Directive as well as wider EU environmental permit requirements. The review will look at how the law is enforced and whether the rules themselves are proportionate and fit for purpose.

Environment secretary Liz Truss announced in October a 25-year strategy and framework to embrace the natural capital agenda. The “open environment” strategy covers recommendations made by the Natural Capital Committee for the government to work closely with businesses and NGOs towards a comprehensive plan to provide the building blocks, investment and necessary financing to secure England’s natural capital long-term future. Truss said open environment would include smarter regulation, involve voluntary organisations more and make better use of data and technology. As part of the strategy, by next summer Defra will open to the public its 8,000 datasets, including at least 2,000 on the natural environment.

Meanwhile, Defra confirmed in September that the Natural Capital Committee (NCC), established in 2012 to provide advice on the state of England’s natural assets, would continue its work throughout this parliament. The Natural Environment Bill, which received its first reading in the House of Lords in September, seeks to maintain the NCC as well as set biodiversity targets for 2040. At the end of November 2015, the Natural Capital Coalition issued its draft protocol to harmonise several methods of accounting for natural capital risks. Consultation on the draft protocol, which is being piloted in more than 50 organisations, ends on 26 February and IEMA is holding a workshop next month to provide feedback. The coalition hopes to launch the final version in July.

Built environment and EIA

The former Labour and coalition governments were committed to zero-carbon homes from 2016 and zero-carbon non-domestic buildings from 2019. However, the Treasury announced in July 2015 that policy on zero-carbon buildings, combining energy-efficiency measures and “allowable solutions”, was being scrapped for domestic properties. Its report, Fixing the foundations, stated: “The government does not intend to proceed with the zero carbon allowable solutions scheme or the proposed 2016 increase in onsite energy efficiency standards.” The report made no mention of the 2019 deadline for non-domestic properties, but industry bodies believe that target has also been axed.

The decision leaves the European Energy Performance of Buildings Directive (EPBD) as the only policy driving energy efficiency in the built environment. That Directive requires all new buildings in the private sector to be “nearly zero-energy” from 1 January 2021 and from January 2019 in the public sector. As part of its implementation of the EPBD, the government must review minimum energy-efficiency standards by 2017.

The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015, which came into force on 1 April 2015, introduce measures to improve the energy efficiency of domestic and non-domestic private rented property. From 1 October 2016, a minimum energy performance certificate band E will apply to these properties.

Decc announced in July 2015 that it would end its funding of the Green Deal Finance Company, in effect closing the firm set up to fund Green Deal providers. The government said it would bring forward a new scheme to support energy efficiency in the built environment.

Wales remains committed to meeting the nearly zero-carbon targets. A consultation on an energy-efficiency strategy for Wales closed in January 2015 and the Welsh government published its response in June. A consultation on the draft closed in September. New energy standards for buildings have applied in Scotland since October 2015.

Revisions to the EU Directive on environmental impact assessment (2011/92/EU) (EIA) were agreed in March 2014 and must be transposed into domestic legislation by spring 2017. Changes include requiring EIA reports – the revised term for environmental statements – to be prepared by “competent experts”, and that all design modifications, additional mitigation measures and monitoring proposals related to significant adverse effects be incorporated into the planning consent. Draft regulations for consultation are expected from the communities department and the devolved governments between March and September.

Carbon and energy

Around 10,000 companies are covered by the energy savings opportunity scheme (ESOS), but the Environment Agency said 40% had submitted compliance notifications by the 5 December 2015 deadline. However, in October, the agency said it did not plan to enforce non-compliance until the end of January 2016, as long as companies explained by the original deadline why they had had failed to comply. They were also expected to provide evidence of efforts towards compliance, including proof of appointment of an independent assessor. The agency also confirmed that firms had until 30 June 2016 to achieve certification to the energy management standard ISO 50001, which is an alternative to basic ESOS compliance.

The Treasury-led consultation on improving the effectiveness of measures to boost business energy efficiency, which IEMA responded to, closed on 9 November 2015. It proposed that businesses should be covered by a single tax and reporting scheme rather than the existing overlapping policies, which include the carbon reduction commitment (CRC), ESOS and the climate change levy (CCL). The Treasury’s stated aim is that a revised system would cut costs for government and businesses and protect energy-intensive enterprises. Any changes will be announced in the 2016 budget statement on 16 March.

Climate change agreements (CCAs) are voluntary and made between industry and the Environment Agency to reduce energy use and carbon emissions. The second CCA target period ends on 31 December and data must be submitted to the relevant sector association by 1 May 2017.

The Energy Bill received its first reading in parliament on 5 November 2015. Its contents include: establishing the Oil and Gas Authority (OGA) as an independent regulator; the introduction of provisions to charge industry for the offshore oil and gas environmental regulator’s services; removal of the need for the secretary of state’s consent for large onshore wind farms (over 50MW) under the Electricity Act 1989; and ending public subsidies for new onshore wind generation in Great Britain under the Renewables Obligation (RO) from 1 April 2016. In June 2015, Decc announced that the RO would be closed to new onshore wind energy generating stations from 1 April 2016 (subject to a grace period for those with consent and an offer of a grid connection).

In his 2015 autumn statement, chancellor George Osborne announced that energy-intensive industries would be exempt from the policy costs of the RO and feed-in tariffs. He said this would ensure they have long-term certainty and remain competitive. Feed-in tariff rates for low-carbon generation change from 8 February.

The European commission’s 2016 work programme brings forward the bulk of the items foreseen in the Energy Union framework strategy, agreed on 25 February 2015. The strategy sets out key actions to secure Europe’s energy supply and reduce import dependency, integrate national energy markets, promote energy efficiency, decarbonise the economy, and promote research, innovation and competitiveness. It also includes carbon goals, including reducing Europe’s energy use by 27% or greater by 2030; building on the EU’s target of emitting at least 40% less greenhouse gases by 2030; and making the bloc the world number one in renewable energy and in leading the fight against global warming.

Communities secretary Greg Clark will decide whether to allow drilling for shale gas in Lancashire. Cuadrilla’s appeal against Lancashire County Council’s decision in June 2015 to reject its plans for fracking will be heard in February. The planning inspector will write a report, make a recommendation and hand it to the government to have the final say. In his autumn statement, Osborne announced that up to 10% of the tax receipts from shale gas operations would be put into a sovereign wealth fund to be spent by local communities. In December, MPs voted to allow fracking under national parks and other protected areas.

Hazardous substances

The third and final registration deadline under the EU REACH Regulation (1907/2006) is 31 May 2018. Registration in 2018 applies to chemicals that are manufactured in the EU or imported into the bloc in quantities of between 1 tonne and 100 tonnes a year. It estimated that up to 70,000 substances will be registered. In January 2015, the European Chemicals Agency (ECHA) published its 2018 registration roadmap, which includes measures that will be put in place this year to aid registration. Among them are: establishing a single point of entry for questions to the agency; improving ways to locate co-registrants; providing online training for data-sharing negotiations; and completion of updated guidance by the June deadline, including a simplified guide for SMEs. The agency also plans in 2016 to publish revised registration tools, including IUCLID (version 6) and REACH-IT.

The ECHA has prepared a draft community rolling action plan (CoRAP) for 2016-18, and 138 substances are listed for evaluation over the three-year period. The agency expects the final plan to be adopted in March. Substance evaluation is one of the three types of evaluation processes under REACH and is triggered as a result of risk-based concerns. The latest REACH candidate list (June 2015) contains 163 substances. The agency’s draft recommendation for inclusion in the seventh authorisation list ends on 18 February. Just one substance, trichloroethylene (21 April), is subject to a sunset date under REACH this year. It means the substance may be placed on the market or used only if an authorisation has been granted. In September 2015, the ECHA agreed its nanomaterials workplan for 2016-18. Although there are no explicit provisions on nanomaterials in REACH, the regulation and its provisions do cover substances in nanoform. With the next REACH registration deadline just two years away, the agency intends to launch a consultation on the guidance on several issues related to nanomaterials in the first half of 2016. The UN started a review in 2014 of the criteria underpinning the globally harmonised system (GHS) to assess their applicability to nanomaterials. The review is due to be completed by the end of 2016.

In November 2015, the 197 parties to the Montreal protocol agreed to work this year on an amendment that would eventually eliminate hydrofluorocarbons.

Regulation and compliance

A consultation on charges imposed by Natural Resources Wales (NRW) ended on 26 November. It proposed maintaining baseline charges, but introducing a “second-tier” multiplier for poor performing waste sites covered by the environmental permitting charging scheme from 1 April. It would apply to sites in compliance bands D, E and F for the previous two years. The multiplier of a site in the lowest band F for two full years, for example, would rise from 300% to 500%.

The Scottish Environmental Protection Agency (Sepa) is introducing a new charging system on 1 April 2016. The Environmental Regulation (Scotland) Charging Scheme 2016 will replace five others – covering 90% of Sepa’s chargeable income – with a single system, which the regulator says will prioritise its efforts to areas of activities that have potential to cause most harm and where poor practice is more likely.

The Environmental Permitting (England and Wales) (Amendment) (No. 3) Regulations 2015 came into force on 30 October 2015, amending the 2010 Regulations by giving the Environment Agency and NRW more powers. Regulators can now serve a suspension notice if they consider that there has been a contravention of an environmental permit condition and there is a risk of pollution. They can also arrange for the removal of risks of serious pollution at permitted or exempt facilities.

An Environment Bill is progressing (at stage 2) through the Welsh assembly and includes measures for:

  • planning and managing Wales’s natural resources at a national and local level;
  • providing NRW with a general purpose linked to the statutory principles of sustainable management of natural resources defined in the Bill;
  • enhancing the powers available to NRW to undertake land management agreements and experimental schemes;

  • providing a requirement for public authorities to maintain and enhance biodiversity; and
  • creating a statutory framework for action on climate change, including targets for reducing emissions of greenhouse gases.

The bill is expected to receive royal assent in the spring and the measures, including a new marine licensing fees and charges regime, will be introduced by the end of the year. The legislation will set a separate 80% greenhouse-gas emissions reduction target by 2050 for Wales, with interim targets set between 2016 and 2020. These will feed into Welsh carbon budgets.

Sepa consulted in 2015 on changes to its compliance assessment scheme (CAS), which was introduced in 2009. Sepa said the aim was to make CAS fairer and more consistent and proportionate for those it regulates, with greater focus on breaches that cause most harm to the environment. The scheme covers around 10,000 sites. Sepa had intended the revised scheme to begin on 1 January 2016, but has delayed its introduction for 12 months to 1 January 2017.

The Environmental Regulation (Enforcement Measures) (Scotland) Order 2015 came into force on 12 November 2015 and provides Sepa with the power to impose fixed monetary penalties (FMPs) and variable monetary penalties (VMPs), and to accept enforcement undertakings to better tackle environmental non-compliance. The Order sets the amount of an FMP for each “relevant offence” at £300, £600 or £1,000, while the maximum VMP is set at either the maximum fine that may be imposed on conviction or £40,000.

Sepa is also rolling out over the next two to three years a new approach to collecting information on the activities that it regulates. The regulator says the approach builds on the system it uses to collect information on industrial and waste sites, and will: provide a consistent approach; allow it to make better use of resources; improve the information available for making decisions; and ensure that operators take more responsibility for monitoring compliance with their licence conditions. The new method will require operators of some activities to monitor their discharges and report the information on these to Sepa.

The Regulatory Reform (Scotland) Act (which received royal assent in February 2014) creates a legal framework for implementation of primary authority arrangements relating to the devolved regulatory responsibilities of local authorities in Scotland. Primary authority allows a business operating in various council areas to form a partnership with a single local authority in order to receive tailored support in relation to regulation. A consultation on primary authority arrangements closed in June 2015 and the Scottish government published its analysis of responses in November. It found mixed views on some aspects of primary authority partnerships, such as powers to direct and dispute mechanisms. Respondents also highlighted the importance of Scotland’s approach being consistent with the existing UK scheme. The government has said it will bring forward proposals for a scheme to meet the needs of local communities and businesses in Scotland.


Defra is seeking feedback on reforms to its guidance and information requests ( Stakeholders are invited to share by 10 February their recent experience of using online guidance as well as reporting information to the department and its agencies. Defra says responses will help shape its understanding on the scale of costs and benefits to businesses.

The Climate Change (Reporting on Climate Change Duties) (Scotland) Order 2015 came into force on 23 November 2015 and requires public bodies in Scotland to produce an annual climate change report for the previous financial year.

In Wales, the Wellbeing of Future Generations Act 2015 received royal assent in April 2015 and comes into force on 1 April 2016. The act aims to improve wellbeing in accordance with the sustainable development principle – ensuring that the needs of the present are met without compromising the ability of future generations to meet their own needs. It covers 43 public bodies, including local authorities and Natural Resources Wales, and has seven overarching wellbeing goals. Public bodies are required to publish wellbeing objectives and statements, and produce an annual report that details progress made towards achieving them.

Member states must transpose Directive 2014/95/EU on the disclosure of non-financial and diversity information into domestic law by 6 December 2016. The commission must publish guidance on how to report such information by the same date.

Resource management

The European commission unveiled its circular economy package on 2 December. This includes implementing an action plan this year to create a single market for the reuse of materials and resources, and support the move away from a linear economy. It comprises commitments on ecodesign, the development of strategic approaches on plastics and chemicals, a major initiative to fund innovative projects under the umbrella of the EU’s Horizon 2020 research programme, and targeted action in areas such as plastics, food waste, construction, critical raw materials, industrial and mining waste, consumption and public procurement.

Actions in 2016 include emphasising the principles of the circular economy in future product requirements under the ecodesign Directive (2009/125/EC); measures to combat false green claims; a review of EU ecolabels; more “green” public procurement; and better enforcement of the revised Waste Shipment regulation.

The circular economy package includes the revision of six directives – 2000/53/EC (end-of-life vehicles); 2006/66/EC (batteries and accumulators and waste batteries and accumulators); 2012/19/EU (waste electrical and electronic equipment); 2008/98/EC (waste); 94/62/EC (packaging and packaging waste); and 1999/31/EC (landfill of waste).

The commission plans to promote the reparability, upgradability, durability, and recyclability of products by developing product requirements relevant to the circular economy in its future work under the Ecodesign Directive. An ecodesign working plan will elaborate on how this would be implemented. Specifically, the commission has developed and will propose to member states mandatory product design and marking requirements to make it easier and safer to dismantle, reuse and recycle electronic displays, such as flat computer or television screens. The European parliament gave the package a cautious welcome and its environment committee is appointing rapporteurs on the various pieces of planned legislation.

IEMA is working with BSI and other sustainability professionals to develop BS 8001, a guidance standard on integrating into organisations the concepts behind the circular economy. The draft standard is expected to be ready for consultation in the autumn.

A revised waste duty of care code of practice is planned by Defra and the Welsh government after a consultation closed in September 2015. The code, which is statutory guidance issued under section 34 of the Environmental Protection Act 1990 (EPA), has been unchanged since 1996 and the revision is intended to ensure the safe management of controlled waste. It applies to organisations that import, produce, carry, keep, treat or dispose of controlled waste.

A consultation on a draft public sector waste and resource efficiency plan for Wales ended in December. It covers four main areas: waste prevention, with the aim of reducing the ecological and carbon footprint of waste in the sector and establishing sustainable procurement practices; preparation for reuse – by improving, promoting and developing items for reuse and redistribution; recycling – improving the separation of the most valuable resources; and other recovery and disposal – including recovery of the energy and value of resources that cannot be recycled. The Welsh government says the plan will help public bodies deliver on their duty under the Wellbeing of Future Generations (Wales) Act 2015 to make decisions in a sustainable way.

The Welsh government is reviewing its Towards zero waste strategy and will report the outcome in June.

The standard and lower rates of landfill tax in England, Northern Ireland and Wales will increase to £84.40 and £2.65 respectively from 1 April 2016.


Revisions to ISO 14001, the international standard for environment management systems (EMS), were finalised in September 2015. Voting on a new version (FDIS) of ISO 14004, which provides guidance on establishing, implementing, maintaining and improving an EMS, started on 3 December 2015. The final version is due to be published on 1 March 2016 and will help organisations make the transition to 14001: 2015.

Work on updating BS8555, the British standard on the phased implementation of an EMS, begins this year and will take into account the changes to 14001.

ISO/TC 207/SC1, the sub-committee responsible for EMS standards, started work in November 2015 on 14008, covering monetary valuation of environmental impacts from emissions and use of natural resources. It is expected to launch in 2018.

Also being developed by ISO are revisions to the standards on environmental labels and declarations: 14021 (self-declared environmental claims (type II environmental labelling) – currently an FDIS; 14024 (type I environmental labelling); 14026 (communication and footprint information); and 14027 (type III environmental declarations). In addition, a new standard, 14034, on environmental technology verification is likely to be published in 2016 after a draft (DIS) was published for public comment in June 2015. The international standards on managing greenhouse gases are also being revised: 14064-1 (part 1: specification with guidance at the organisation level for quantification and reporting of greenhouse gas emissions and removals); 14064-2 (part 2); and 14064 (part 3). A future standard, 14080, is being developed to provide guidance on a framework for developing new methodologies as well as on the use of existing ones for climate action and their review, revision and management to meet stakeholder needs.

Meanwhile, the committee that developed the energy management standard, 50001, is working on two more: 50007 – activities relating to energy services: guidelines for the assessment and improvement of the service to users (currently a DIS); and 50008 – commercial building energy data management for energy performance: guidance for a systemic data exchange approach.

Sustainable development

The UN unveiled its sustainable development goals in September 2015. Each of the 17 has specific targets (169 in total) to achieve by 2030. The goals and targets came into effect on 1 January.

The European commission’s 2016 work programme lists as a priority developing a new approach to ensuring economic growth and social and environmental sustainability beyond 2020. The commission says the approach will take into account the Europe 2020 review (the bloc’s long-term growth and jobs plan) and the internal and external implementation of the UN sustainable development goals.


The European commission says concluding the Transatlantic Trade and Investment Partnership Agreement (TTIP) with the US remains of primary importance for 2016. In November, the commission published a new strategy to make trade policies like the TTIP more responsible by ensuring sustainable development, labour and environment provisions were included. The strategy aims to establish high standards for labour and the environment.


The European commission will develop in 2016 an effort-sharing proposal for sectors outside the emissions trading system (ETS), such as buildings, agriculture and road transport. “We will be promoting the use of non-discriminatory road charging schemes based on the polluter-pays and user-pays principles and efforts to create a single European transport area, allowing a more efficient use of the existing road infrastructure and a more flexible use of fleet capacity,” it said.

In October 2013, the International Civil Aviation Organisation (ICAO) Assembly agreed to develop a global market-based mechanism (MBM) to address international aviation emissions by 2016 and to apply it by 2020. In response, the EU decided to limit the scope of the EU ETS to flights within Europe until 2016. The ICAO is expected to agree an MBM at its 2016 assembly in Montreal in September.

The International Maritime Organisation will consider this year whether to establish a a total-sector reduction target for GHG emissions from international shipping, which was proposed by the Marshall Islands in 2015.


Draft Prevention of Pollution (Oil Storage) (Wales) Regulations were published in September 2015 as part of a consultation and will come into force in 2016. They aim to reduce and prevent water pollution from oil storage facilities. Key requirements will be for the storage container to be fit for purpose and to have a secondary containment system. Similar measures are already in place in the rest of the UK.


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