Looking ahead to 2014, the environmentalist highlights some of the major legal and policy changes that will impact practitioners
Last year, the environmentalist published details of 140 new regulations and 69 policy consultations from across the UK and the European commission. Legislative and policy developments over the next 12 months promise to be equally extensive, with major changes planned in most areas affecting the work of environment professionals. With the help of EEF, the Environmental Services Association and consultancy WSP, the environmentalist has collated some of the most important regulatory and policy changes to look out for in 2014.
Biodiversity and natural capital
Speaking to the environmental audit committee in October, environment secretary Owen Paterson promised that Defra would seek to introduce legislation in England on biodiversity offsetting in 2014, though a voluntary approach remains an option. A consultation on biodiversity offsetting, which was one of the priorities put forward last year by the taskforce on ecosystems markets, ended on 7 November. Defra is now analysing the feedback and evidence from pilots before deciding whether to pursue a mandatory approach.
A consultation by the Law Commission on establishing a system of conservation covenants in England and Wales ended in June 2013. Conservation covenants are voluntary agreements by landowners to do something, or to avoid a course of action, to achieve a conservation objective on their land. The commission reported in August that respondents to its consultation were in favour of introducing covenants, with the majority backing a statutory scheme. It plans to publish its final report together with a draft Bill and impact assessment in summer 2014.
The commission is also planning changes to wildlife protection laws, with draft legislation to be published by the summer. Under its proposals, which will affect firms in England and Wales and aim to simplify existing laws, a new system of civil sanctions will operate.
Meanwhile, Defra is aiming to produce a strategy in spring 2014 to integrate natural capital into business accounting and reporting. The environment department is also supporting phase II of the UK National Ecosystems Assessment (NEA), which will further develop and communicate the evidence base of the NEA, and make it more relevant to decision making and policymaking across the UK. This work will be completed by March 2014.
The Water Bill, which was published in June 2013 and applies to England and Wales (and in part to Scotland by establishing a cross-border arrangement), is expected to receive royal assent in April 2014. Measures include: restoring the sustainable abstraction of water; improving the way water resources and drought planning are managed; providing powers to streamline the environmental permitting framework; encouraging the use of sustainable drainage systems; and transferring the responsibility of maintaining maps of the main rivers in England and Wales to the Environment Agency and Natural Resources Wales.
The UK is a signatory to the Convention on Biological Diversity (CBD) and is committed to the Aichi targets, international biodiversity goals agreed in 2010 and set out in the CBD. The fifth UK report to the CBD must be submitted by 31 March 2014.
Action 5 of the EU biodiversity strategy to 2020 requires member states to assess the state of ecosystems and their services in their national territory. This mapping and evaluation should be completed in 2014 and will contribute to the assessment of the economic value of ecosystems services, and promote their integration into accounting and reporting systems at the EU and national level by 2020.
Built environment and planning
Revision of the EU Directive on environmental impact assessment (EIA (2011/92/EU)) is expected to be concluded early in 2014. The permanent representatives committee, which prepares decisions for the council, approved a draft of the Directive with the European parliament in December. The text needs to be formally adopted by parliament in early 2014. The council will take its decision following the vote in parliament.
A key element of the government’s plans to speed up the planning process and tackle delays to infrastructure is to reform the judicial review system. This includes establishing, early in 2014, a specialist planning court to accelerate the handling of cases, as well as the introduction of legislation to ensure that minor procedural claims are dealt with proportionally and to allow appeals to move directly to the Supreme Court in a wider range of circumstances. The government has also launched a review of the planning regime for nationally significant infrastructure with the aim of shortening the pre-application phase and further streamlining the consenting process.
Revised energy efficiency standards for new non-domestic buildings come into force in April 2014 through changes to Part L of the Building Regulations. The changes, which include requirements for better fabric insulation and more efficient heating and lighting, implement the recast EU Directive on the energy performance of buildings (2010/31/EU) and are expected to reduce commercial buildings’ carbon emissions by 9% on average.
The Energy Act 2011 requires all commercial buildings in England and Wales with energy ratings below E to be upgraded before they can be leased in 2018. A consultation on implementing the measure was scheduled for 2013, but it is now due in January 2014. Analysis by WSP in 2013 found that around 17% of energy performance certificates issued for commercial buildings since 2008 were rated as “F” or “G”.
A consultation by the European commission on the possible introduction of EU-wide measures to improve the environmental performance of buildings ended in October 2013. The commission plans to publish a communication on sustainable buildings in 2014.
A revised version of the BREEAM “new construction UK” standard will be finalised in 2014. Publication of the new scheme document is due in January, followed by a peer-review process in early spring before it goes live.
Carbon and energy
Further changes to the CRC come into force with the start of phase II in April. A consultation ended in December 2013 on these alterations, which focus on how the CRC can incentivise the uptake of onsite renewable generation and the exclusion from the CRC of energy supplied to metallurgical and mineralogical processes following changes to the climate change levy in the 2013 budget. The government also aims to clarify how participants can avoid the double counting of third-party energy supplies under the CRC, climate change agreements and the EU emissions trading scheme (ETS), and how organisations can disaggregate subsidiaries.
Organisations qualify for phase II if between 1 April 2012 and 31 March 2013 they had at least one settled half-hourly electricity meter and were supplied with more than 6,000 MWh of electricity. However, some public bodies qualify no matter how much electricity they consume. Qualifying organisations have until 31 January 2014 to register with the Environment Agency.
The chancellor confirmed in his autumn statement the cost of CRC allowances for 2014/15 – £15.60 per tonne of carbon dioxide in the forecast sale and £16.40 per tonne of carbon dioxide in the buy-to-comply sale.
Participants in phase I of the CRC have until 31 July to produce their annual report covering 1 April 2013 to 31 March 2014. Simplification measures already implemented for this reporting year include the scrapping of the annual performance league table. The agency plans to replace the table with published emissions data for participants, and will be developing the format over the next few months.
Several exemptions from the climate change levy start this year. In his 2013 budget, the chancellor announced that energy used by the ceramics industry and in other metallurgical and mineralogical processes would be exempt from 1 April 2014. Levy rates for 2014/15 are: 0.541p/kWh for electricity (a 3.24% increase) and 0.188p/kWh for gas (a 3.3% rise).
Member states have until 5 June 2014 to transpose EU Directive 2012/27/EU on energy efficiency into national legislation. Article 8 of the Directive requires the introduction of regular energy audits for enterprises with more than 250 employees and an annual turnover of €50 million. Decc consulted last autumn on its plans to implement art. 8 through an energy savings opportunity scheme (ESOS). Its response, as well as a second impact assessment, will be published in the spring. Under the proposals, data from the 2014/15 financial year will be used for the first round of ESOS assessments, which must be completed by December 2015.
Article 14 of the Energy Labelling Directive (2010/30/EU) requires the European commission to carry out a review of the effectiveness of labelling no later than 31 December 2014. Meanwhile, stage II of commission Regulation 1194/2012 on ecodesign requirements for directional lamps, LED lamps and related equipment comes into effect on 1 September 2014, and sets new energy efficiency criteria.
Plans by the government to reform the wholesale electricity market (EMR) have taken a step forward. After the Energy Bill’s first reading in November 2012 it was expected to receive royal assent in spring 2013, but its progress was delayed, with assent finally secured on 18 December (Energy Act 2013). Decc is expected to publish regulations relating to the EMR in spring 2014.
Extended support for non-domestic technologies under the renewable heat incentive will be introduced in March 2014 enabling firms investing in air-water heat pumps, commercial-scale energy-from-waste plants and large biogas burners to claim for payments. Support for combined heat and power, large biomass boilers (1MW), ground-source heat pumps and solar thermal installations is to be increased at the same time.
The Climate Change Act 2008 set a target for the UK to reduce its emissions by at least 80% from 1990 levels by 2050 and established a system of five-yearly carbon budgets – set by the independent committee on climate change (CCC) – to ensure the target is met. Under the fourth carbon budget, which runs from 2023 to 2027, the UK must cut GHG emissions to 1,950 million tonnes of CO2 equivalent (MtCO2e) – less than half of what the country emitted in 1990. When it agreed the fourth budget in 2011, the government stated it would review the reduction target in 2014 and scale back the cuts if other EU countries had not adopted similar goals. In December 2013, the CCC reported there was no need to alter the fourth budget, warning that the target might even have to be tightened if the EU’s 2020 carbon reduction target rises to 30%, as the UK is advocating. The review will take place early in 2014.
To bridge the gap between the end of the first period of the Kyoto protocol in 2012 and the planned start of its successor in 2020, the 38 developed countries party to the protocol, including EU member states, have agreed to participate in a second period, running from 2013 to 2020. The parties are required to revisit their emissions target by 2014 with a view to considering making it more ambitious. The EU may raise its reduction target to 30% if the conditions are right.
Following the UN climate change conference in Warsaw (COP19) in November 2013, negotiations on delivering a new global climate change treaty are to continue in 2014. UN states have agreed for it to be finalised in 2015 and enforced in 2020. COP20 takes place in Lima, Peru, in December 2014, while UNFCCC meetings continue throughout the year. The UN is also hosting a climate summit in New York in September.
The first of four reports from the fifth assessment by intergovernmental panel on climate change (IPCC) was published in September 2013, with the release of the findings by working group 1, which examines the physical science basis of climate change. The three remaining IPCC reports will be published in 2014.
Progress on revising ISO 14001 for a proposed launch in the first half of 2015 continues with a consultation on the second committee draft closing this month. All comments received on the new draft will be discussed at the ISO working group’s next meeting in Padua, Italy, at the end of February 2014.
Work on a revised version of ISO 14004, which outlines general guidelines on environment management principles, systems and support techniques, is also ongoing, running roughly six months behind the revision to 14001.
The European Chemicals Agency published proposals in November to update the community rolling action plan (CoRAP) for 2014–16. The draft lists 125 substances for member states to review, consisting of 56 additional substances and 69 substances included in the March 2013 CoRAP. A decision on the draft is due in February, with the final CoRAP for 2014–16 adopted by the end of March.
In 2011, the agency set so-called sunset dates for the first six substances of very high concern, after which a substance cannot be produced unless an authorisation has been granted for a specific use. The first sunset date is August 2014 and applies to 4,4’-Diaminodiphenylmethane and 5-tert-butyl-2,4,6-trinitro-m-xylene.
Restrictions on mercury in measuring devices apply from 10 April 2014 with the implementation of European commission Regulation 847/2012, which amends annex VII of the REACH Regulation (1907/2006). Similarly, commission Regulation 649/2012 on the export and import of hazardous chemicals comes into force on 1 March 2014. The Regulation applies to: certain hazardous chemicals that are subject to the prior informed consent procedure under the Rotterdam Convention (the “PIC procedure”); certain hazardous chemicals that are banned or severely restricted in the EU or a member state; and the classification, labelling and packaging of exported chemicals.
An EU regulation to “phase down” the use of fluorinated gases (f-gases) across the bloc is expected to be finalised in early 2014. In December 2013, the European council and representatives of the parliament agreed an amended version of the commission’s proposal to replace Regulation 842/2006, under which the use of f-gases in products, such as fridges, freezers and air conditioners, would be phased out between 2015 and 2025. The new regulation will apply from 1 January 2015.
Concerns have been raised about the potential effects on the environment and human health of materials that contain particles of a size that falls outside the scope of the existing EU definition of nanomaterials. In response, EU policymakers will review how the bloc defines such materials in 2014.
Member states have until 31 January and 30 April 2014 to transpose into domestic law EU directives 2013/44/EU and 2013/27/EU, which amend Directive 98/8/EC on biocidal products by including powdered corn cob and chlorfenapyr as active substances in annex 1. Under Regulation 3(d) of the Biocidal Products (Amendment) Regulations 2007 any amendments to Directive 98/8/EC are automatically implemented into UK law.
Defra announced in December 2013 that, from April 2014, it would no longer fund local authorities in England to investigate and remediate contaminated sites. In 2010, the environment department provided £17.5 million in grants to councils towards the cost of measures such as soil sampling and laboratory tests, as well as treating or replacing soils affected by chemical spills and waste deposits.
The Industrial Emissions Directive (IED) (2010/75/EU) came into force on 6 January 2011 – transposed by the Environmental Permitting (England and Wales) Regulations 2013; Pollution Prevention and Control (Scotland) Regulations 2012; and the Pollution Prevention and Control (Industrial Emissions) Regulations (Northern Ireland) 2013 – and initially applied to new installations from 7 January 2013.
As of 7 January 2014, the Directive applies to existing installations previously subject to the directives that IED replaces – such as those on integrated pollution prevention and control, waste incineration and solvent emissions. The first key deadline is 1 September 2014, when operators of sites involved in the gasification of fuels other than coal, the biological processing of chemicals and waste recovery must submit applications. Under the IED, there is greater emphasis on compliance with best available techniques (BATs) for new plant and derogation from BATs is more tightly controlled.
The European commission’s long-delayed plan to raise the price of EU carbon allowances under the emissions trading scheme by “backloading” 900 million allowances in the ETS will soon come into force after member states voted in favour of detailed proposals on 8 January. Backloading had originally been scheduled to start on 1 January, so the commission will have to set a new timetable for temporarily withholding the allowances, which policymakers hope will lead to a rise in carbon prices. Meanwhile, Decc expects to submit its vision for phase IV of the ETS, beyond 2020, by July.
The revised ETS Directive (2009/29/EC) requires the commission to draw up a list every five years of sectors and subsectors that face competition from industries outside the bloc that are not subject to comparable GHG restrictions. Sectors on the list receive a higher share of free ETS allowances. A new “carbon leakage” list is due by the end of 2014, and will apply from 2015 to 2019.
An emissions performance standard (EPS) limiting carbon emissions from new fossil-fuelled power stations was included in the Energy Act 2013 and should be in place by April 2014. The EPS is to be set at 450g/kWh and will apply to all new fossil fuel burning power plants generating 50MW of electricity a year.
Regulation and inspection
The Regulatory Reform (Scotland) Bill was introduced in the Scottish parliament in March 2013 and will change how the Scottish Environment Protection Agency (Sepa) will operate from April 2014. The Bill supports Sepa’s transformation programme to follow a more “risk-based, proportionate, targeted and outcome-based” approach to regulatory compliance, and aims to improve the way environmental regulations are applied across Scotland. The Bill will introduce: a new statutory purpose for Sepa; a simplified and integrated framework for environmental regulation; and a new enforcement framework.
National Resources Wales (NRW) will publish its corporate plan in March, setting out its strategic direction for the next three years. A consultation to inform the plan ended on 10 January.
The Welsh government is planning on introducing an Environment Bill, which will include measures to provide NRW with new statutory functions and duties that will support its core purpose and enable it to trial new approaches and ways of working. A consultation on the white paper outlining the proposed Bill ended on 15 January. Also, a Future Generations Bill is to be introduced to the assembly in summer 2014. It will set out the role that public services in Wales, including the NRW, play in helping the country tackle key challenges, such as climate change.
Meanwhile in England, further budget cuts will see the Environment Agency’s workforce shrink by 1,700 by the end of October 2014.
Some fees charged by regulators will change in April 2014. The Environment Agency recently consulted on its charging plans for:
- installations requiring environmental permits – to rise in line with inflation;
- water abstraction – either a new application charge of £1,500 for those permits where there is no requirement to pay ongoing subsistence charges, or to charge subsistence for licences in addition to the current application charge of £135; and
- the EU emissions trading scheme – align charges with rest of Europe.
Sepa has reviewed all its charging schemes with a view to implementing a significantly different charging framework from 2015. It is consulting on increases for 2014/15. These include a 7.7% rise in waste charges and a 2.7% increase in charges for controlled activities, such as pollution prevention and control, from April 2014, followed by similar increases in April 2015.
Defra is due to complete its reform of guidance on environmental legislation by March 2014. As part of the process, the environment department is simplifying 6,000 guidance documents and revisiting 250 requirements on businesses to report environment information to see whether they are necessary. The websites of Defra agencies, such as the Environment Agency, are expected to migrate to the main gov.uk website in March. Defra has also been working with the government digital service to test a simplified way to collect and manage information, with it potentially being used more widely.
The Environment Agency will increase the number and availability of standard rules permits next year, reducing the documentation required. It is developing electronic application forms, which should be available sometime in 2014. The regulator will also publish an updated version of its 2005 publication Delivering for the environment, which describes its vision for regulation.
New sentencing guidelines for environmental offences should come into effect in spring 2014. A consultation on the new guidelines ended in June 2013 and outlined a framework for magistrates in England and Wales to determine sentences for waste disposal, environmental permitting and statutory nuisance offences under the Environmental Protection Act 1990; the Environmental Permitting Regulations (England and Wales) 2010; and the Control of Pollution (Amendment) Act 1989. Under the proposals, magistrates would impose fines based on the level of harm caused, the level of culpability – whether the offence was committed deliberately, recklessly or negligently – and the size of the organisation.
The European commission published a communication in October 2013 on the next steps in its regulatory fitness and performance programme (“Refit”). To prepare for future legislative initiatives aimed at reducing the “burden” of regulatory compliance on businesses, a number of evaluations, fitness checks and other studies will start in 2014. Areas to be assessed include legislation relating to chemicals not covered by REACH, the Natura 2000 protection areas, the EU ecolabel and EMAS (the eco-management and audit scheme). The commission says that, by the end of 2014, it will have carried out or launched 47 assessments to lighten the regulatory burden. Twelve of them will focus on environmental regulation.
Waste and resources
The European commission is developing EU waste legislation and targets beyond 2020, and is expected to publish a report and legislative proposals in spring 2014. The commission is expected to propose higher EU recycling targets, a progressive phasing out of landfill, and possibly one or more targets for waste prevention. The proposals are likely to be the subject of lengthy negotiations with member states and the European parliament before they are agreed. The eventual outcome will be of major significance for the future of the waste and resource management industry.
In its response to the 2013 consultation on the review of EU waste management targets, which was published last December, the government said it would not support changing the definitions or targets for 2020 set out in the Waste Framework Directive (2008/98/EC), nor would it back the introduction of new environmental targets. It also refused to back proposals to extend landfill bans and to impose restrictions on specific materials at an EU level.
Under the EU’s 7th Environment Action Programme, which was formally agreed in November 2013, the commission is preparing to set an EU reduction target for marine litter. A consultation on how best to formulate the target ended in December, and the commission aims to include a reduction goal in a wider communication on waste to be adopted in 2014.
Commission Regulation 715/2013 set new criteria from 1 January 2014 for when copper scrap ceases to be waste. From the beginning of the year, scrap copper can be classified as a product if it meets the requirements set out in 715/2013 before being remelted.
Revised legislation on waste electrical and electronic equipment (WEEE) applied from 1 January, implementing the recast WEEE Directive (2012/19/EU) and changes to the UK WEEE system. A consultation by UK administrations on clarifying the definition of “portable” waste batteries will be launched in spring 2014.
Defra is expected soon to publish new regulations on materials recovery facilities (MRF). It consulted in spring 2013 on draft MRF regulations for insertion into Environmental Permitting (England and Wales) (Amendment) Regulations 2013. The new regulations will enter into force in June or July.
The chancellor confirmed in his 2013 budget that the standard rate of landfill tax will increase by £8 a tonne to £80 from 1 April 2014, while the lower rate will remain at £2.50 a tonne in 2014/15.
At the start of 2014, the Environment Agency launched edoc (electronic duty of care), an online waste transfer information system. The aim of edoc, which places waste transfer notes online, is to make recording waste movements quicker, easier and cheaper for businesses. It also provides a transparent system for firms to demonstrate that they have met their legal duty of care and evidence of environmental responsibility and accountability. Defra estimates the business community will save between £7.8 million and £13.4 million every year by using edoc.
Prior to the launch, the environment department issued a six-week consultation at the start of December 2013 on introducing greater flexibility over the use of waste transfer notes by small businesses in England and Wales. Changes include clarifying the use of alternative documentation and revising the information that comprises the written description of waste.
In Scotland, the Waste (Scotland) Regulations 2012 came into force on 1 January. These establish a legal duty on every business, regardless of size, to separate metal, plastic, paper, card and glass for recycling, as well as banning these separated materials from being sent to landfill or incinerators. The devolved government is also introducing a charge for single use carrier bags from October 2014.
The Producer Responsibility Obligations (Packaging Waste) (Amendment) Regulations 2012, which came into force on 11 December 2012, imposed new waste packaging recovery and recycling targets until 2017. The aluminium-recycling target for 2014, for example, rises to 46% from 43% in 2013, while the target for plastics increases to 42% from 37%.
From spring 2014, Defra will withdraw from some areas where it now does proactive policy work, including energy-from-waste, commercial and industrial waste, and construction and demolition waste.