What lies ahead 2015
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the environmentalist highlights some of the legal and policy changes due in 2015
A general election year makes it difficult to provide a comprehensive outlook for imminent policy changes. Whichever party or parties forms the UK government after 7 May will have their own priorities for sustainability, some of which are unlikely to become clear until ministers take office.
As the actions of the new European commission have shown through its plans to withdraw new waste targets, policy trajectories set by the previous administration often fall foul of a new set of priorities. Whatever the political complexion of the next government, there are, nonetheless, a number of major legal and policy measures at both a national and EU level planned for 2015. With the support of IEMA and the EEF, the environmentalist has collated some of the most important regulatory and policy changes to look out for over the next 12 months.
Biodiversity and natural capital
Defra produced its biodiversity strategy for England in 2011 and in 2012 outlined a set of 24 biodiversity indicators. A working group is developing a method for assigning a level of confidence in a trend, and the assessment of that trend, for individual indicators. The methodology will be peer-reviewed in early 2015. The baselines for the priority habitat inventory will also change this year; new interim measures of individual plant species and connectivity are also due; and changes to some forestry elements of the LULUCF – land use, land use change and forestry – greenhouse-gas inventory are planned.
The Natural Capital Committee expects to publish its third state of natural capital report in late January. Its previous report, published in April 2014, warned that most of England’s natural assets would need action to restore and improve them. Details of the committee’s work on corporate natural capital accounting will be included in its third report to generate interest ahead of the publication later of more technical information.
A nature recovery plan to reverse the narrowing biodiversity in Wales is being finalised by the Welsh government to fulfil its commitments under the Convention on Biological Diversity.
The Scottish government intends to lay legislation in parliament in May 2015 on measures to manage 11 nature conservation marine protected areas (MPAs) and nine special areas of conservation (SACs) in Scotland’s territorial waters. A consultation on its proposals ends on 2 February. The MPAs and SACs covered are those identified as the most sensitive habitats. The government in Edinburgh is also planning to adopt a national marine plan by April.
A priority for the new EU environment commissioner, Karmenu Vella, is to review the Birds (2009/147/EC) and Habitats (92/42/EEC) directives.
A “fitness check” of the directives is part of the European commission’s regulatory fitness and performance programme (REFIT) to make EU law “simpler and to reduce regulatory cost”. The first step has been to set the criteria for the examination, which was completed last year under the previous commission. The next stages are: collecting and assessing evidence for the fitness check (completed by autumn 2015); public consultation (start 2015); assessment of art. 17 of the Habitats Directive, which requires a report every six years on implementation across the EU, and art. 12 of the Birds Directive, which requires updates on implementation every three years (first half of 2015); a stakeholder meeting (summer 2015); and a report on the findings by the end of 2015 or early 2016.
The commission is scheduled this year to set out how it plans to achieve action seven under the EU biodiversity strategy, which is to ensure no net loss of biodiversity and ecosystem services by 2020.
Negotiations continue on finalising sustainable development goals (SDGs) to supersede the millennium development goals, which expire this year. The UN working group devising the SDGs is due to announce them at a summit in September.
Built environment and planning
As the result of a consultation last year, the department for communities and local government intends to introduce secondary legislation for a “deemed discharge” on some planning conditions. Dclg confirmed that developments subject to environmental impact assessment (EIA) or likely to have a significant effect on qualifying European sites would be exempt. The department also plans to revise guidance on development consent orders, specifically the procedures that must be followed depending on whether the change is deemed to be material or non-material.
In January, Dclg published its response to the consultation on raising the EIA screening thresholds for industrial estates and urban development projects from 0.5 hectares to 5 hectares. The department confirmed that it will go ahead with its proposals (p.8).
The Scottish government is consulting until 21 January on proposed changes to guidance in the Domestic and Non-Domestic Building Standards Technical Handbooks for 2015, including section three, which is concerned with the environment, and section five and seven, on noise and sustainability, including carbon emissions, respectively. The government aims to publish a report of any proposals in the spring. New energy standards for buildings apply in Scotland from October 2015 (section six of the handbooks has already been updated to accommodate these changes). The revisions apply from October 2015.
The Welsh government launched its Planning (Wales) Bill in October 2014. Proposals include: ministers to decide on planning applications for developments of national significance to Wales; where planning issues extend beyond the boundaries of a single authority, a strategic planning panel, comprising representatives of local authorities, community, environmental and business interests, should draw up a development plan; and changes to enforcement to deliver prompt action against breaches of planning control.
In Northern Ireland, the planning system will be reformed on 1 April 2015 when most functions will transfer to 11 district councils.
Carbon and energy
Organisations covered by the energy savings opportunity scheme (ESOS) are required to notify the Environment Agency of their compliance by
5 December 2015. Under ESOS, companies employing at least 250 full-time staff or with a balance sheet of more than €43 million and an annual turnover of over £50 million (or is part of a group in which one part exceeds these thresholds in the UK) must measure their energy use over the previous 12 months.
Climate change agreements (CCAs) are voluntary arrangements between industry and the Environment Agency to reduce energy use and carbon emissions. Operators participating in a CCA receive a discount on the Climate Change Levy (CCL). The first CCA data reports (for the period ending 31 December 2014) must be submitted to the relevant sector association by 1 May 2015. The government is planning to review the CCA targets in 2016.
The first payments under the contract for difference (CfD) scheme to support investment in low-carbon electricity generation will be made from April 2015. CfDs are a key element of the electricity market reform and licensed electricity suppliers will fund their costs. The government is to exempt electricity suppliers of eligible energy intensive industries (EIIs) from some of the costs associated with CfDs. Eligibility criteria are expected soon.
From 1 April 2015, the government will exclude from the carbon price support rates fossil fuels that are used by combined heat and power plants to generate electricity that is self-supplied or supplied under exemption from the requirement to hold a supplier licence.
Plans by the UK government to support the exploration and extraction of shale gas and oil by hydraulic fracturing (fracking) will be developed further in 2015 with the creation of a sovereign wealth fund from the industry’s tax revenues. There will also be financial support for independent research into the robustness of the existing regulatory regime for onshore activities. The Scottish government, meanwhile, says it supports enforcement of robust regulation of fracking to maintain the highest levels of environmental protection. It has strengthened Scottish planning policy in relation to onshore unconventional gas activities by introducing buffer zones and additional risk assessments. Ministers will bring forward in 2015 further guidance to empower communities that could be affected.
The Welsh government expects to publish its energy efficiency strategy in the final quarter of 2015.
Political negotiations on measures to stabilise the EU carbon market will continue in 2015. EU member states agreed in 2013 to temporarily withdraw 900 EU emissions trading system (ETS) allowances to reduce some of the surplus and bolster their price. Under the so-called “backloading” of allowances, 300 million will be withdrawn from auctioning this year – 400 million were withheld in 2014 and 200 million will be withdrawn in 2016. An additional 300 million and 600 million allowances will be included in the 2019 and 2020 auctions respectively.
The commission adopted the second carbon leakage list in October 2014. It covers the period 2015–19 and started on 1 January. Sectors and sub-sectors on the list are those exposed to a significant risk of “carbon leakage”. They will receive a higher share of free ETS allowances between 2013 and 2020.
New EU energy labels, which were introduced by the new framework Directive (2010/30/EU) on 19 June 2010, have been phased in. The new labels have applied to gas ovens since 1 January 2015 and will be introduced for water heaters from 26 September.
Negotiations on delivering a new global climate change treaty are due to be completed at COP 21 in Paris between 30 November and 11 December. The agreement is due to be implemented from 2020. The Lima climate conference in December 2014 agreed elements of the draft negotiating text (p.5). This is due to be completed in May 2015 ahead of the Paris meeting, while countries should put forward their intended contributions to reducing global greenhouse-gas emissions in the first quarter of 2015. EU leaders agreed in October 2014 to reduce the bloc’s GHG emissions by at least 40% against 1990 levels by 2030.
In the UK, the Committee on Climate Change begins work this year on the fifth carbon budget. Under the Climate Change Act 2008, the committee is tasked with setting five-yearly budgets to ensure the country meets its legally binding 2050 target to reduce emissions by at least 80% against 1990 levels. After a review, the government last year confirmed the fourth budget, which runs from 2023 to 2027. very wet weather in January and February. May, October and November were also wetter than average
New EU rules on controlling fluorinated gases (F-gas) came into force on 1 January 2015 and apply to member states without the need for domestic legislation (see panel, p.18). Regulation 517/2014 revoked and replaced Regulation 842/2006 on F-gas.
Revisions to ISO 14001, the international standard for environment management systems, are due to be completed this year. The next meeting of the group working on the revised standard takes place in Tokyo in February. The final version is due in March and the new standard is expected to be available in the summer. In December 2014, 92% of member bodies of the International Organisation for Standardisation (ISO) approved the draft. Meanwhile, 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 ISO technical committee for greenhouse-gas (GHG) management, TC207/SC7, is continuing to revise ISO 14064-1, which provides guidance for organisations to quantify and report their GHG emissions. The revision is focusing on establishing a more standardised reporting framework. It will also cover: 14064-2, which includes quantification, monitoring and reporting of GHG emissions at the project level, and will be expanded to cover carbon credits and innovative technology projects. In addition, 14064-3, which supports the validation and verification of GHG assertions, and 14065, the standard for verification bodies for use in accreditation, will be updated to serve new markets, such as product carbon footprint verifications.
New Control of Major Accident Hazards (COMAH) Regulations come into force in Great Britain on 1 June 2015, implementing the Seveso III Directive (see panel, above). The main COMAH duties will stay the same but there are some important changes particularly on how dangerous substances are classified and the information made available to the public. For the first time, lower-tier operators will have to provide public information about their site and its hazards. Both top-tier (now referred to as upper-tier) and lower-tier operators will need to provide public information electronically and keep it up to date. The Health and Safety Executive is due to publish new guidance in March. The land use planning requirements of Seveso III will be implemented through amended planning legislation by the communities and local government department and the devolved administrations in Scotland and Wales.
On 1 June 2015, the Classification, Labelling and Packaging Regulation (CLP) (2008/1272/EC) replaces the Dangerous Substances Directive (67/548/EC) and the Dangerous Preparations Directive (1999/45/EC). The new regulation introduces a system of chemical classification based on hazard classes, categories and statement codes (rather than risk phrases and categories of danger) and will alter the way waste is classified and assessed. As a result, environment regulators in the UK are updating the current guidance (WM2) on waste classification and assessment. A draft waste classification and assessment, technical guidance (WM3), has been produced. The closing date for comments is 3 February 2015 (lexisurl.com/iema48643).
The sunset date under REACH means substances may be placed on the market or used only if an authorisation has been granted. Authorisation is one of the REACH processes for managing the risks of substances of very high concern (SVHC) and promoting their replacement with safer ones. The first 2015 sunset date is 21 February and applies to four phthalates: bis(2-ethylhexyl) phthalate (DEHP), benzyl butyl phthalate (BBP), dibutyl phthalate (DBP), and diisobutyl phthalate (DIBP). Further sunset dates for 2015 are: 21 May – lead sulfochromate yellow (C.I. pigment yellow 34), lead chromate molybdate sulphate red (C.I. pigment red 104), diarsenic pentaoxide, diarsenic trioxide, and lead chromate; and 21 August 2015 – gamma-hexabromocyclododecane, 2,4 – dinitrotoluene (2,4-DNT), hexabromocyclododecane (HBCDD), alpha-hexabromocyclododecane, beta-hexabromocyclododecane, and Tris(2-chloroethyl)phosphate (TCEP).
New EU rules to account for nanomaterials under REACH are expected later this year.
The European commission has been consulting (until 15 January) on criteria for identifying endocrine disruptors in the context of implementing the Plant Protection Product Regulation (1107/2009) and the Biocidal Products Regulation (528/2012).
Regulation and inspection
Regulatory charges are set to rise from 1 April across the UK. Consultation by the Environment Agency on raising its charges for 2015/16 ended on 20 November. The proposals included: a 2% increase for installations and waste facilities covered by the Environmental Permitting Regulations (EPR); increasing the compliance band adjustment for waste facilities and installations that are in bands D, E and F for more than two years – for example, from 125% to 200% for band D sites; introducing a permit commencement charge to recover the additional costs the agency incurs in the
12 months immediately after the issue of a new permit – this would be an additional 40% of the annual charge for the permit and apply to EPR installations and waste facilities. The agency also proposed amending its Opra (operational risk appraisal) scheme, covering assessments of operator compliance and how Opra defines activities and the associated charging bands.
The Scottish Environment Protection Agency (Sepa), meanwhile, says it intends to implement a new charging framework in 2016. However, from April 2015 water (Controlled Activity Regulations), pollution, prevention and control, and radioactive substances (nuclear) charges increase by 2.7% and waste charges by 7.7%. Consultation on plans by Natural Resources Wales to raise its charges for 2015/16 ended on 9 January. Under the proposals, installations and waste facilities covered by the Environmental Permitting Regulations will rise by 5% from April, while those for water quality will increase in line with the consumer price index.
Scotland will introduce a new regulatory framework in the spring. It will provide Sepa with a broader range of enforcement tools, including fixed monetary penalties, variable monetary penalties, enforcement undertakings and non-compliance penalties.
Regulations to extend the Environment Agency’s use of enforcement undertakings are due to come into force on 6 April. The regulations will amend the Environmental Permitting (England and Wales) Regulations 2010 in relation to offences under regulation 38, such as knowingly contravening reg.12 (permitting) or failing to comply with reg.60 (providing information).
The Environment Agency is now consulting on changes to 12 sets of standard rules, which will apply later this year. The changes are required after amendments to the Environmental Permitting (England and Wales) Regulations 2010 as a result of the Industrial Emissions Directive (2010/75/EU). The rules govern, for example: clinical waste transfer stations and treatment; low-impact Part A installations; low-impact Part A installations for the production of biodiesel; treatment of waste to produce soil; composting in closed systems; composting in open systems; farm anaerobic digestion using farm wastes only; anaerobic digestion facilities, including the use of resultant biogas; and the treatment of incinerator bottom ash from Part A installations. The agency says the revised rules will be published in mid-2015 (lexisurl.com/iema48642).
Regulations to transpose art. 38 of the Offshore Safety Directive by extending the Environmental Damage (Prevention and Remediation) Regulations 2009 to include offshore marine waters must be in place by 19 July 2015.
Defra’s year-long programme to simplify environment guidance, is due to end in March 2015. The environment department says the aim is to make guidance simpler, quicker and clearer for businesses and others to understand and comply with their obligations. At the same time, Defra and its regulators have been reviewing all the environmental information required by businesses to ensure it is really needed.
Defra is this year due to review the mandatory reporting of greenhouse-gas emissions by quoted companies under the Companies Act 2006 (Strategic Report and Directors’ Report) Regulations 2013, which came into force in October 2013. When they were introduced, the environment department stated that ministers would assess in 2015 the costs and benefits on businesses of mandatory disclosure before deciding whether to expand the obligation to report to large unquoted companies. The government’s commitment to reduce regulatory “burdens” makes this unlikely.
Waste and resources
From 1 January, businesses have had to separate glass, metal paper and plastic, after an amendment to the Waste Framework Directive, which seeks to improve the quality of recyclate. The Waste (England and Wales) (Amendment) Regulations 2012 revised those set in 2011 on the separate collection of waste. From this year, authorities must, where it is technically, environmentally and economically practicable, ensure waste passes through a recovery operation process to facilitate or improve recovery of material. Regulations 18 and 20 of the Waste Regulations (Northern Ireland) 2011 transpose the separation element of the directive into Northern Ireland law and obligate district councils and private waste collectors to also separately collect at least glass, metal, paper and plastic from 1 January 2015.
Transposition of the amended Batteries and Accumulators and Waste Batteries and Accumulators Directive (2013/56/EU) must be complete by 1 July 2015. A consultation on the draft regulations by the government and the Scottish and Welsh governments ended on 5 November. The amended Directive removes the exemption for button cells with mercury content of less than 2% by weight from 1 October 2015.
The standard and lower rates of landfill tax will increase to £82.60 per tonne and £2.60 per tonne respectively from 1 April 2015. The lower rate applies only to wastes listed in the Landfill Tax (Qualifying Material) Order 2011 (as amended) and the higher rate to all other waste that is taxable for landfill tax purposes and is chargeable at the standard rate. The government is introducing a loss-on-ignition testing regime on fines produced from the processing of waste at mechanical treatment plants from 1 April 2015. Only qualifying fines below a 10% threshold will be considered eligible for the lower rate, though there will be a 12-month transitional period where the threshold will be 15%.
In Scotland, Landfill Tax Act 2014 is due to come into force on 1 April 2015. Scotland’s finance minister has confirmed that the Scottish landfill tax rates will be the same as elsewhere in the UK. However, under the 2014 Act Scottish ministers have additional flexibility and can set extra tax bands and make specific exemptions. Indeed, the Holyrood government says its ministers intend to use powers in the legislation to enhance provision to those communities who live near a landfill site through the communities fund. Guidance on the Scottish landfill tax regime will be added in phases to Revenue Scotland’s website, alongside tax calculators to assist in the calculation of the taxes. The government says this material will be available well before 1 April 2015.
The new commission proposed in December 2014 the withdrawal of plans to revise EU waste targets, which formed part of the previous administration’s circular economy package (p.8). The EU parliament voted on whether to approve the proposals as the environmentalist went to press. The commission has promised to bring forward more ambitious plans in 2015.
Water and flood management
A consultation on proposals by Defra and the Welsh government to integrate flood defence consents into the environmental permitting regime (EPR) in England and Wales ends on 17 February (lexisurl.com/iema51971). The consultation focuses on the changes to the existing regulations, and proposed exemptions and exclusions from these. New legislation will apply from October 2015. At the same time, the Environment Agency is consulting until 3 March on changes to 13 sets of standard rules under the EPR governing watercourse activities, which are linked to the plans to integrate flood defence consents into the regime (lexisurl.com/iema51972).
The first flood risk management plans are due in December 2015. These come after consultations by the Environment Agency on draft plans for a number of river basin districts. These set out how the agency, councils, drainage authorities, highway managers and water companies will work together to manage flood risk. From 1 January 2015, business contributions to flood and coastal erosion risk management projects have been deductible for corporation tax and income tax purposes.
Consultation on reform of the water abstraction system in England and Wales concluded in March 2014. The environment department says key decisions on which to base new legislation will be made in 2015.
Major accidents and the environment
In 1976 an industrial plant in Seveso, Italy, released a vapour cloud containing a dioxin, devastating land and vegetation and causing homes to be evacuated and people to be poisoned. The accident led to the adoption of the Seveso I Directive in 1982. The most recent version, Seveso III, was published in 2012 and will be implemented in the UK by way of the Control of Major Accident Hazards (COMAH) Regulations 2015, which come into force on 1 June 2015.
The regulations are applicable to establishments that handle large quantities of hazardous substances and require businesses to “take all necessary measures to prevent major accidents involving dangerous substances” and “limit the consequences to people and the environment of any major accidents which do occur”.
Although it is nine years since the explosion and fire at the Buncefield oil storage depot, the implications are still felt by operators of bulk storage tanks as the recommendations from the investigations are translated into industry guidance. Although there has been a necessary focus on safety and health, demonstrating that the risk from a COMAH establishment to the environment has been reduced to a “tolerable” level has remained a challenge. The Chemical and Downstream Oil Industries Forum (CDOIF) developed guidance in 2013 to help assess the risk posed to environmental receptors from major accident hazard sites. The guidance defined tolerability as a willingness to live with a risk so as to secure certain benefits and in confidence that the risk is properly controlled.
Andy Goddard, senior manager at ENVIRON.
New rules on F-gas
Regulation 517/2014 revoked and replaced the existing Regulation 842/2006 on fluorinated gases (F-gas) from 1 January 2015, with the main change amending the thresholds for maintenance frequency. Previously the criteria was based on the charge (in kg) of F-gas in an item of equipment but is now based on the global warming potential (GWP) CO2 weight equivalent. Under the change some equipment may no longer require maintenance, while other equipment may need more.
The new regulation bans or restricts the use of F-gas in, for example, some refrigeration equipment, air-conditioners, insulating forms, and technical aerosols, and introduced conditions on marketing products and equipment containing or relying on F-gas. Other changes include: cap and phase-down for the placing on the market of hydrofluorocarbons (HFCs); future restrictions on the servicing and maintenance of equipment using HFCs; and new rules on the containment, use, recovery, and destruction of HFCs.
Preparation is the key to success for companies concerned about complying with 517/2014. Ensure that maintenance schedules are still correct in order to identify any equipment that was not previously covered but now is. A fully up-to-date F-gas register will be necessary, listing all the equipment and systems containing F-gas that are required to be checked for leaks. The previous 3kg, 30kg, and 300kg leak check requirements have been replaced by different limits based on CO2 equivalent tonnes CO2et. The new requirements are for 5, 50 and 500 CO2et.
The gas contents should be identified and, where it is confirmed as an “R” code refrigerant, the chemical component needs to be noted, although bear in mind the gas could be blended. Having identified all the gases, consult annex 1 and 2 of the 517/2014 for the calculations to determine the GWP of the gas.
Neil Howe, senior legal author with online environment and safety specialist Cedrec.
The Competition and Markets Authority (CMA) has published a new 'Green Claims Code' to ensure businesses are not misleading consumers about their environmental credentials.
In Elliott-Smith v Secretary of State for Business, Energy and Industrial Strategy, the claimant applied for judicial review of the legality of the defendants’ joint decision to create the UK Emissions Trading Scheme (UK ETS) as a substitute for UK participation in the EU Emissions Trading Scheme (EU ETS).
In R. (on the application of Hudson) v Windsor and Maidenhead RBC, the appellant appealed against a decision to uphold the local authority’s grant of planning permission for the construction of a holiday village at the Legoland Windsor Resort.
In R (on the application of National Farmers Union) v Secretary of State for the Environment, Food and Rural Affairs, the claimant applied for judicial review of the Secretary's direction to Natural England concerning badger culling.