The Defra and the Welsh Government consultation, which closes next week, is designed to incorporate an EU quality directive into the Waste (England and Wales) Regulations 2011.
But the lack of clarity in the proposed amendment is causing anxiety. It would allow comingled collection to continue where separate collection is not “technically, environmentally and economically practicable”.
The semantics are significant. Practicable is defined as “capable of being done; feasible”. Not to be confused with practical, which is “sensible, useful, and effective”.
In some cases, separate collection could result in a significant drop in recycling: practicable but not practical or desirable. Equally, something can be very expensive but nonetheless practicable.
The wording in some ways reflects the wording in the EU directive. But it is also symptomatic of the government trying to hedge its bets. The ambiguity allows the government to fulfil its obligation to incorporate the directive, while also seemingly allowing commingled collections to continue. But it also creates uncertainty and a significant risk of councils being faced with costly legal challenges.
This week Smurfit Kappa joined the Local Government Association, the Environmental Services Association, and Biffa in warning that legal challenges were likely.
In the end it will hinge on Defra’s guidance on what constitutes “technically, environmentally and economically practicable”. It must be clear.