Paul Suff examines recent criticism of how effective the UK is in transposing EU environmental legislation
A judicial review is to consider whether the government has correctly transposed the revised Waste Framework Directive (rWFD). Specifically, the court will decide whether Defra’s interpretation of art. 11 – promoting high-quality recycling by 2015 through separate collections – is poor and will result in inferior materials arriving at recycling facilities.
The Campaign for Real Recycling (CRR), the group of UK reprocessors that sought permission for the review, certainly thinks the government has a case to answer. It believes that the Waste (England and Wales) Regulations 2011, which transpose the rWFD in those two countries and came into force on 29 March, are deficient and will lead to valuable resources being wasted. It says the government should embrace not just the letter of the Directive, but the spirit of it as well.
Whether or not the High Court will side with the CRR remains to be seen, but a new report from the UK Environmental Law Association suggests that the government’s transposition of EU legislation is frequently flawed.
Although the findings are only preliminary (a final report is scheduled for February), they highlight several problems, notably that piecemeal transposition can create a patchwork of legislation that too often is overly complex and lacks transparency.
It cites the Water and Waste Framework Directives as examples of this, with both having been implemented via an array of different UK primary statutes, statutory instruments, ministerial directions, government and regulator policy documents and regulatory position statements.
Such a hotchpotch of legislation and guidance is confusing and incomprehensible for lawyers, let alone the businesses and environmental professionals that must make sense of it in their everyday activities.
The government’s Red Tape Challenge provides an opportunity to create a more coherent and transparent legal regime. But that will only happen if the focus is on streamlining existing environmental regulation and improving how the government transposes EU laws, rather than on ditching laws essential for the protection of the environment.
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