The end of the first phase of Brexit negotiations with the EU was reached last month. Whether that proves to be the end of the beginning or the beginning of the end, only time will tell. Meanwhile, do not forget that the sole purpose of the negotiations to date has been the UK’s orderly withdrawal from the EU under Article 50 of the Treaty on the EU.
The whole topic of post-Brexit trade arrangements has yet to be discussed, including the thorny question of trade in waste, which was the subject of a House of Lords Energy and Environment Sub-Committee enquiry in November 2017.
EU law, regulations and policy
The EU Withdrawal Bill which, in mid-January, was backed by the House of Commons, repeals the European Communities Act 1972, the means by which EU laws were given direct force in domestic law. The effect of repeal is to convert directly applicable EU law, which would otherwise lapse on exit, into UK law.
This means that what was EU law will be frozen at the moment of exit and remain in that state until revised by means of UK regulations. Ministers will be given the power of revision – the so-called Henry VIII powers – which will enable primary legislation to be amended or repealed by subordinate legislation, thus obviating the need for full Parliamentary scrutiny.
The task of adapting vast amounts of EU legislation into UK domestic law will be complex because, typically, UK regulations refer to the relevant EU Directive and include enforcement provisions – nothing else. This will make the physical effort of redrafting, considerable.
Analysis by Thomson Reuters says 52,741 laws have been introduced in the UK as a result of EU legislation since 1990, and research published by Parliament estimates that 13.2% of UK primary and subordinate legislation enacted from 1993-2004 was EU-related.
When EU policy changes, UK policy will not keep step. Many would argue that this is one of the principle benefits of leaving the EU but it will make trade post-Brexit more complicated.
Waste rules and regulations at a glance
- GB 16487 Environmental Protection Control standards: China’s tougher standards for waste and scrap paper or paperboard which come into effect this year.
- EU Transfrontier Shipment of Waste Regulations 2006: rules governing EU imports and exports.
- OECD Council Decision C(2001)107/ FINAL (as amended): facilitating trade of recyclables in an ‘environmentally sound and economically efficient manner’ across the OECD area.
- EU Industrial Emissions Directive: rules to eliminate pollution arising from industrial activities in compliance with the ‘polluter pays’ principle.
- Waste Treatment Best Available Techniques Reference Document: deals with, among other things, temporary storage of waste, blending and mixing, repackaging, waste reception and sampling.
- Basel Convention 1989: overarching law for trade in wastes to protect human health from hazardous wastes.
Waste and resources regulation
The industry has developed during the past 40 years in accordance with EU policy, providing long-term vision for the sector – everything from recycling to end of waste is governed by EU legislation. The definition of waste, the waste hierarchy and the circular economy are all European in concept. EU policy has provided targets that the UK might not otherwise have contemplated – for example in relation to landfill and packaging.
Presently the UK exports more than three million tonnes a year of refuse-derived fuel (RDF) to Europe which is used to generate electricity. This RDF is exported as waste for recovery under the EU Transfrontier Shipment (TFS) of Waste Regulations 2006. After Brexit, a question arises as to whether wastes could continue to be traded with the EU. Moreover, substantial quantities of secondary materials are exported to China, which may be affected by the Chinese import ban of materials which fail to meet the GB 16487 Environmental Protection Control standards.
If the UK could not continue its trade in waste with the EU and China, it would need substantially more recycling and energy-from-waste facilities to cope with the increased quantities of waste remaining. So very careful consideration needs to be given to any proposed changes to UK domestic law which would make exports more difficult.
There are also concerns that the Brexit debate has already weakened the UK’s influence in the EU, and that important policies such as the circular economy, where considerable work has been carried out in the UK during the past five years, are being shaped without significant UK input.
However, it could also be argued that if there were less environmental protection in the UK, economic and competitive benefits would result. For example, it is possible to contemplate a second, inward-facing, definition of waste so that secondary materials now defined as waste would no longer be designated waste and could more easily be moved and traded within the UK, resulting in significant cost saving.
Trade in waste with the EU
As mentioned, the EU Withdrawal Bill may potentially restrict trade in wastes. The potential problem is that because the UK will no longer be part of the EU, the TFS regulations differentiate between EU member states and third countries. The UK, of course, in these terms becomes a third country.
But the relevant overarching law for trade in wastes is the Basel Convention 1989, which has been ratified by the UK. The convention has also been implemented within the Organisation for Economic Co-operation and Development (OECD) and the UK is an OECD member – as are a further 20 EU member states.
OECD Council Decision C (2001)107/ FINAL (as amended) governs wastes for recovery within the OECD area. The decision requires recyclables to be recovered in an environmentally sound and economically efficient manner by using a simplified procedure as well as a risk-based approach to assess the necessary level of control for materials.
This is the same system as used by the EU under the TFS regulations and means that, post-Brexit, the UK ‘s trade in wastes with the EU 20 member states should continue unabated, but subject in future to the OECD decision rather than the TFS Regulations. The simplified control procedure does not apply to member states outside the OECD.
EU environmental standards
In 2017, 16 member states plus Norway, 19 industrial organisations and one environmental NGO, together with the EU Commission, completed the technical work to define the Best Available Techniques (BAT) conclusions for the waste treatment sector as part of a review of the Waste Treatment Best Available Techniques Reference Document (BREF), dated 2006, under the Industrial Emissions Directive 2010.
BAT conclusions for the waste treatment sector will be the reference for authorities to set operational permit conditions for about 4,000 waste treatment facilities across Europe. On leaving the EU, the UK will have freedom to follow the BREF or impose different standards, at the risk of finding it harder to trade in an international market.
European Court of Justice (CJEU)
This is an area likely to be fraught with difficulty. Hardline Brexiteers have demanded that the Government removes the UK from the jurisdiction of the CJEU immediately on exit. The president of the UK’s Supreme Court has asked Parliament for “as much clarity as possible” on the subject. This is because English courts could be faced with issues of interpretation in terms of established jurisprudence based on EU law up to the date of Brexit.
They are seeking sufficient guidance so that judges know how far they should take into account future CJEU judgments, where EU law remains part of UK law. Waste is one of the topics where the CJEU has exercised great influence, so early clarification is necessary.
This article only touches on some of the relevant issues. But we can be certain that Brexit will have a far-reaching and complex effect on our environmental legislation, and waste management legislation in particular. As is well known, uncertain policy leads to long-term uncertainty and that does not encourage green investment.
The border conundrum
Stone was one of a panel of experts who gave evidence to a trade in waste round table discussion convened by the House of Lords Energy and Environment Sub- Committee on 22 November 2017.
The committee heard that the waste crime problem on the Northern Ireland border with the Republic of Ireland could intensify following Brexit.
Steve Lee, an independent consultant representing the interests of the Chartered Institution of Wastes Management as a former chief executive, said policy differences between the UK and member states would be problematic.
“Gibraltar is totally reliant on Spain for its waste management. If we were on the outside of the EU, that could well cause problems,” he said.
“I think Northern Ireland and the Republic are a much more difficult set of issues, especially if policy starts to diverge and we have taxation differences across the border. [This could have an influence] on waste crime – which is a bad enough issue as it is.
“I would beg this committee not to underestimate the importance of the Northern Ireland/Republic of Ireland border.”
Hilary Stone is honorary research fellow at the Centre for Environmental Control & Waste Management, Department of Civil & Environmental Engineering, Imperial College London. She is also a member of the United Kingdom Environmental Law Association and its Waste Working Party