The Environment and Climate Change Law Review: United Kingdom

Introduction

This review outlines the legislation and regulatory regimes in the United Kingdom related to the environment and climate change; however, it is primarily focused on the laws of England and Wales, with reference to Scotland and Northern Ireland where appropriate.

The United Kingdom is involved in several major environmental and climate change initiatives at the national, EU, regional and international levels (such as its participation in the EU emissions trading scheme (EU ETS)2 and the Paris Agreement under the United Nations Framework Convention on Climate Change),3 as well as various decarbonisation initiatives (discussed below). The United Kingdom's exit from the European Union (Brexit) on 31 January 2020 has not impacted these initiatives in the short term. Throughout the so-called 'transition period', which began on the day immediately following Brexit day and terminated on 31 December 2020, the UK continued to follow EU law and remained in both the EU customs union and the single market. However, following the agreement that was reached by the UK and the EU at the end of the transition period, the UK government may be required to replace certain environmental safeguards that are derived from EU law. In 2021, the UK will still be required to meet its international environmental and climate change commitments independently of the EU ETS.

At the 2017 United Nations Environment Assembly in Nairobi, the United Kingdom, together with other UN Member States, signed a resolution to tackle the issue of plastic litter in the oceans.4 The UK government has since taken a number of steps to reduce plastic waste, including passing landmark legislation to ban the manufacture of cosmetic products containing microbeads,5 and establishing the Commonwealth Clean Oceans Alliance Initiative to eliminate single use plastic and address marine plastic pollution.6 In the autumn 2018 budget, the Chancellor announced that a new tax will apply from 1 April 2022 to plastic packaging that does not include at least 30 per cent recycled content.7 In November 2020, the UK government issued a Policy Paper on the Plastic Packaging Tax (PPT), outlining the detailed proposal of the tax and confirming that the proposal will be subject to a more detailed consultation.8 The government had also carried out reviews of environmental regulations within the waste and recycling sector and the energy sector to limit bureaucracy and reduce costs, with the results of both published in March 2016.9 On 1 October 2020, the Waste (Circular Economy) (Amendment) Regulations 2020 (Circular Economy Regulations)10 came into force, transposing the EU's 2020 Circular Economy Package (2020 CEP) in England and Wales. The 2020 CEP tackles initiatives on making sustainable business models and products the norm. In adopting the 2020 CEP in the Circular Economy Regulations, the UK entrenched its intention to move into a circular economy to minimise waste.

Additionally, the UK environmental permitting regime was the subject of an ongoing review to consolidate the various amendments made since its introduction in 2010.11 The Environmental Permitting Regulation 2016 came into force on 1 January 2017, and consolidated the 15 amendments made to the 2010 regulations. The duties under the regulations broadly remain unchanged and penalties can apply for offences relating to waste operations and water discharge activities. At the end of the transition period, the Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019 (SI 2019/39) were to come into force. These new Regulations include a new Schedule 1A, modifying the effect of more than 300 cross-references to EU Directives, which are found in the 2016 Regulations.

Actions relating to air quality issues include the government's development of a new Clean Air Zone framework, which aims to simplify the current overlapping regimes and provide local authorities with new legal powers to reduce pollution through the implementation of local Clean Air Zones. The government has directed 28 local authorities to produce accelerated local plans to reduce nitrogen dioxide (NO2) levels, including benchmarking proposals against a possible Clean Air Zone where appropriate. The government has also been working with a further 33 local authorities that have shorter-term NO2 exceedances to assess if there are measures to bring forward the point at which they can comply with the NO2 concentration limits.12 Although the expectation was for most Clean Air Zones to be introduced between 2020 and 2021, owing to the impact of covid-19, some Clean Air Zones have been postponed.13

Since July 2020, the government has revealed that discussions are under way for the creation of a new state-backed successor to the former Green Investment Bank, to assist the UK's climate ambitions to build a 'net zero carbon' economy by 2050.14

In August 2020, BEIS published the UK's response to the 2019 stakeholder consultation on 'Business Models for Carbon Capture, Usage and Storage (CCUS)'. In its response, BEIS set out preferred business models to incentivise CCUS technology in the UK, focusing on a number of policies. Key elements set out in the policies include, for example, having two CCUS clusters in operation by 2030 and a gas-fired CCS power station, also by 2030.15

Legislative framework

The current legislative framework for environmental and climate change regulation in the United Kingdom is composed of a mixture of domestic and EU law. In many areas, UK environmental regulation derives primarily from the European Union, as the government has identified that over 1,100 pieces of directly applicable EU legislation are 'owned by the Department of Environment, Food & Rural Affairs'.16 However, the United Kingdom has long had its own environmental laws, and the regimes for certain important areas such as contaminated land are solely domestic.

After the formal exit of the UK from the EU on 31 January 2020, EU environmental law continued to apply and it remained applicable until the end of the transition period on 31 December 2020. Depending on the form of new trading arrangements agreed between the United Kingdom and the European Union, some of this legislation may be impacted, even though the United Kingdom has adopted most EU environmental directives into national law. As stated in its 25 Year Environment Plan, the government intended to deliver a 'Green Brexit' by using Britain's exit from the EU as an opportunity to assess the state of the environment and reform certain policies such as agriculture and fisheries management.17 The Environmental Principles and Governance Bill (discussed further below) will take steps to safeguard environmental protections in the United Kingdom, including the creation of an independent environmental body to hold the government to account.18

Certain regimes that implement EU legislation may need to be rewritten to incorporate the standards directly into UK law. For example, the UK regime for regulating industrial emissions as currently written refers to compliance with the EU Industrial Emissions Directive,19 as opposed to referring to standards contained within UK legislation. The government has been in the process of introducing secondary legislation under the European Union (Withdrawal) Act 2018 (the EU Withdrawal Act), to ensure that domestic legislation implementing the Industrial Emissions Directive can continue to operate after Brexit.20 A Draft Environment (Principles and Government) Bill (the Environment Bill) was adopted in 2018 and is now at the Committee stage in the House of Commons. The United Kingdom continues to be bound by any international treaties or conventions to which it is a party in its own right alongside the European Union, such as the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement.

Much of UK environmental legislation is specific to a particular area of environmental law. Some examples of important legislation, discussed in greater depth below, include:

  1. Environmental Permitting Regulations 2010, which set out the environmental permitting system;
  2. Environmental Protection Act 1990, which regulates contaminated land and waste;
  3. Environment Act 1995, which regulates ambient air quality;
  4. Industrial Emissions Directive 2010, which regulates industrial emissions;
  5. Water Resources Act 1991, which regulates discharges to water;
  6. Water Industry Act 1991, which regulates discharges to sewers;
  7. REACH Enforcement Regulations 2008, which regulate chemicals;
  8. Waste Regulations 2011 and Hazardous Waste Regulations 2005, which regulate solid and hazardous waste; and
  9. Climate Change Act 2008, which sets legally binding targets for emissions reduction.

The regulators

The primary regulatory agencies enforcing environmental and climate change rules in the different areas of the United Kingdom are:

  1. Environment Agency (EA) in England;21
  2. Natural Resources Wales in Wales (NRW);22
  3. Scottish Environment Protection Agency (SEPA) in Scotland;23 and
  4. Northern Ireland Environment Agency (NIEA) in Northern Ireland.24

These agencies are responsible for the regulation of major industry and waste management, the treatment of contaminated land, water quality and natural resources. They also regulate fisheries, navigation of harbours, estuaries and inland rivers, and are responsible for managing flood risks and issues of conservation and ecology.25

Numerous other bodies also play a role, including:

  1. Department for Environment, Food and Rural Affairs (Defra), the central government department responsible for environmental protection policy in England and internationally on behalf of the United Kingdom in the European Union and elsewhere;
  2. Department for Business, Energy and Industrial Strategy (BEIS), the central government department responsible for climate change having taken over the functions of the former Departments for Energy and Climate Change and for Business, Industry and Skills;
  3. Scottish government, Welsh government and Northern Irish Executive, each of which have devolved responsibilities for environmental policy and legislation in their respective countries;
  4. Natural England, which has responsibility for biodiversity, wildlife and habitats in England;
  5. Marine Management Organisation, with responsibility for marine activities and the marine environment throughout the United Kingdom; and
  6. Health and Safety Executive, whose remit includes industrial safety, chemicals and asbestos management.

The regulatory agencies are overseen by their respective government body, for example, Defra in England or the devolved governments in Wales, Scotland and Northern Ireland.

Certain environmental responsibilities are within the remit of local authorities, including the collection and disposal of municipal waste and the regulation of emissions from smaller industrial plants within their local area to air, water and land. Notably, local authorities play a key role in relation to contaminated land, as laid out under Part IIA of the Environmental Protection Act 1990,26 except where the land is a 'special site' regulated by the EA or its equivalent. Special sites include, but are not limited to, sites that have a serious impact on controlled waters or sites contaminated by radioactivity.27

Courts in the United Kingdom play a key role in the enforcement of environmental regulation, serving as the venue for criminal prosecutions and civil actions to which they have generally adopted a robust approach. For instance, in Lungowe v. Vedanta Resources plc,28 the courts allowed, in 2016, Zambian citizens to bring claims against an English parent company for personal injury and damage to property allegedly caused by waste discharge and pollution from a copper mine owned by a Zambian subsidiary. The Court of Appeal upheld the lower court's decision following the effect of the European Court of Justice decision in Owusu v. Jackson and reinforcing the responsibility of a parent company for the operation of its subsidiary. In April 2019, the Supreme Court upheld the Court of Appeal's ruling and dismissed a further appeal by the defendants, on the basis that claimants would have not been able to have access to justice in the Zambian courts.29 The case follows the earlier example of Chandler v. Cape plc,30 which upheld the decision of the first-instance judge to allow the employees of a subsidiary to bring a claim in negligence against the parent company regarding their exposure to asbestos.31

Environmental groups and other non-governmental organisations (NGOs) have also made use of the courts as a means of influencing environmental law and policy, both by bringing claims for judicial review against the actions of public authorities and by seeking to stop the activities of large companies where these may be detrimental to the environment. For example, ClientEarth has engaged in a series of challenges against the government's air quality plans, forcing new plans to be produced in 201532 and for the reconsideration of these plans in 2016.33 In a judgment handed down on 23 February 2018, the High Court found that the third iteration of the government's plans, the 2017 Air Quality Plan, was unlawful in several respects, and that more action was needed in 45 local authority areas.34

The United Kingdom has also been subject to the jurisdiction of the EU courts. The European Court of Justice's jurisdiction will continue applying in certain areas of UK law even following the end of the transition period. An example of EU jurisdiction applying in the UK can be found in the Welsh NOx case.35 The United Kingdom was held to have failed to correctly apply the provisions of the Large Combustion Plant Directive36 to the Aberthaw Power Station in Wales by allowing the power station to burn highly volatile fuels resulting in emissions of nitrous oxides (NOx) above the levels permitted.

Enforcement

There are various bases for environmental liability in the United Kingdom, including criminal law, civil law, public law and company law.

i Criminal law

The primary method of enforcement for most environmental laws is criminal prosecution by the regulator (e.g., the Environment Agency in England and Wales) for breach of environmental legislation. Sanctions include fines and imprisonment, and extend liability to corporate entities as well as individuals. Prior to 12 March 2015, the maximum fine in the lower courts for environmental offences was £50,000. As a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012,37 the maximum fines for environmental offences in the lower court are unlimited.38

Sentencing guidelines for environmental crimes published in 2014 have established increasing starting points for sentences based on the size of the company at fault, from micro companies to small, medium and large companies. These guidelines were first applied in the case of R v. Thames Water Utilities Ltd.39 Following criminal prosecution by the Environment Agency, Thames Water was fined £250,000 for the negligent discharge of untreated sewage into a stream that flowed through an Area of Outstanding Natural Beauty. This fine was upheld on appeal, with the court stating that it 'would have had no hesitation in upholding a very substantially higher fine'.40 Additionally, it was noted in the Court of Appeal case of R v. Ineos Chlorvinyls Ltd that when the court is determining an appropriate fine, the judge may take into account the resources of any linked organisation available to that particular offender.41 In March 2017, when Thames Water committed a further breach of the Environmental Permitting Regulations on six counts, it was fined £20 million by the Crown Court.42 The Water Services Regulation Authority (Ofwat) has since conducted an investigation into Thames Water's non-compliance with its leakage reduction obligations, resulting in Thames Water agreeing to pay £65 million back to customers as part of a package of payments and penalties amounting to £120 million.43

Other recent cases have resulted in more significant sentences than historically. These have included: a £3 million fine for Tesco Stores Ltd for a petrol leakage from a filling station into the local sewerage system, the Langwood Brook and the River Irwell, causing environmental damage and requiring local homes to be evacuated;44 a £1 million fine for Thames Water for polluting the Grand Union Canal;45 a £1.1 million fine for Yorkshire Water for illegally discharging sewage into the River Ouse;46 and a combined fine of almost £1 million for United Utilities Water Limited and its contractor KMI+ for polluting a stream with bleach.47 A record custodial sentence for an environmental crime – seven years and six months – has also recently been awarded in relation to a £2.2 million fraud by a waste operator that falsely claimed to have collected and recycled significant quantities of household electrical waste.48

ii Civil law

Private persons may also bring civil law claims in relation to the harms caused by breaches of environmental law. These are typically claims for damages or an injunction under the common law of nuisance, the rule in Rylands v. Fletcher or the common law of negligence, with a nuisance claim generally considered to have the highest chance of success. The threshold for bringing a claim for negligence requires that:

  1. the defendant (who may have either caused the contamination or allowed it to continue) owed a duty of care to the claimant;
  2. that the duty was breached; and
  3. that the claimant suffered loss or damage as a result of that breach.

It is a defence to negligence to show that the defendant exercised reasonable care in carrying out their activities. Such a defence does not apply to nuisance or Rylands v. Fletcher, where it is sufficient that the environmental damage occurred.

iii Public law

Under the Regulatory Enforcement and Sanctions Act 2008,49 environmental regulators have the power to impose civil sanctions as an alternative to prosecution in relation to certain environmental breaches. Civil sanctions include fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings.

Enforcement undertakings involve the offender making an offer to perform some act or to pay money to restore or remediate any harm caused by their breach of environmental legislation. Enforcement undertakings are the most common sanction, and since 2015 their usage by the Environment Agency in England has been extended to include breaches under the environmental permitting regime (as discussed below). The recent enforcement undertaking of Wessex Water is the highest to date, totalling £975,000 in environmental improvement payments following a series of sewage spills in Dorset in 2016 and 2017.50 Other enforcement undertakings have generally ranged from £5,000 to £232,000, and over £2.2 million was provided to charities and projects benefiting the environment as part of the enforcement undertakings.51

iv Company law

Under the Companies Act 2006, directors are subject to a statutory duty to promote the success of the company for the benefit of its members as a whole.52 In doing so, the directors must take into account, among other factors, the impact of the company's operations on the community and environment. A director in breach of this duty could be subject to a derivative action by the shareholders on behalf of the company even if that director has not itself benefited from the breach. However, such an action is likely to be difficult given the requirement to prove subjective bad faith on the part of the director, and the general discretion given to directors to balance competing interests. Further, the courts have proven to be generally unwilling to interfere in the business decisions of a company.

Reporting and disclosure

i Reporting and disclosure

There are several mechanisms by which companies may be required to report on or disclose environmental issues.

It is common for Environmental Permits (as discussed under Environmental Protection below) to include reporting conditions in relation to discharges to water, air emissions and other operational matters, and a number of environmental regimes impose further reporting requirements.

In addition, under the Environmental Damage (Prevention and Remediation) (England) Regulations 2015, operators are required to notify the relevant regulator of any imminent threats of environmental damage or any activity that has caused environmental damage, and to provide information to regulators upon request. The regulators themselves have wide powers to conduct investigations. For example, the EA is entitled to require that certain information is provided, gain access to premises, obtain samples, interview site employees and carry out emergency works. However, the EA must notify the operator in advance of entering a site, and cannot generally use information provided under compulsion in the prosecution of an offence.

Companies may also be required to disclose environmental liabilities as part of their reporting under the Companies Act 2006. At present, all companies except certain small companies are required to produce a strategic report setting out a fair review of the company's business and a description of the principal risks and uncertainties it faces. This is a stand-alone document, and is separate from the directors' report. However, the extent of environmental reporting required varies. Large unquoted companies must consider environmental issues as a non-financial key performance indicator in their analysis of the company, but their obligations extend no further. The requirements for large or medium quoted companies are more extensive. They must report on environmental matters specifically, including the impact of the company's business on the environment, the company's environmental policies and the effectiveness of those policies. Small companies and medium unquoted companies are not subject to any environmental reporting requirements.

The Companies Act 2006 has broadly similar requirements to those under the Non-Financial Reporting Directive 2014.53 In 2016, the government conducted a consultation on the implementation of the Non-Financial Reporting Directive, as well as on wider reforms outside its scope. At the end of 2016, the government subsequently published the Companies, Partnerships and Groups (Accounts and Non-Financial Reporting) Regulations 2016, incorporating the requirements of the Non-Financial Reporting Directive by amending the strategic report regime under the Companies Act 2006, which came into force in early 2017.54

ii Whistleblowers

Whistleblowers in England and Wales are protected under the Public Interest Disclosure Act 1998,55 both in relation to any unfair dismissal of the whistleblower for making a protected disclosure and in relation to any unlawful detriment suffered by the whistleblower as a result of making a protected disclosure. The potential liability to the employer is extensive, as there is no upper limit on compensation for unfair dismissal of a whistleblower and the employer may be vicariously liable for the acts of its employees in causing detriment to the whistleblower where it does not take all reasonable steps to prevent this.

This legislation has been enforced in relation to environmental whistleblowers on multiple occasions, including where the subject of the protected disclosure was a previous employer, highlighting the importance to companies of maintaining an adequate whistleblower policy and avoiding breaches of environmental regulation.56 In October 2019, the EU adopted a new directive for the 'protection of persons who report breaches of Union law',57 providing further measures for the protection of whistleblowers. EU Member States have until October 2021 to transpose the directive into domestic law and its transposition will supplement the UK's Public Interest Disclosure Act 1998.

Environmental protection

i Environmental permits

Environmental permits in England and Wales are dealt with through the integrated environmental permitting (EP) regime, which has steadily incorporated and replaced the various distinct permitting systems that were previously in place. The Environment Agency, Natural Resources Wales and, in certain cases, local authorities have the authority to issue permits in relation to a range of regulated activities, and an operator must hold a permit in order to carry on any regulated activity.

The integrated EP regime was initially established in April 2008, combining the pre-existing Pollution Prevention and Control regime permits and waste management licences into a new system of environmental permits. From April 2010 the EP regime has also incorporated water discharge, groundwater discharge and radioactive substances registration and authorisation, with pre-existing consents converted automatically into environmental permits. As part of the 2017 Water Abstraction Plan, Defra has set out a plan to move water abstraction and impounding licensing regimes into the EP regime. In light of the impact of the covid-19 pandemic, Defra has recently updated the 2017 plan, delaying the move of the water abstraction and impounding licensing regime into the EP regime to 2023.58

The current regulations for the EP regime for England and Wales are found in the Environmental Permitting (England and Wales) Regulations 2016 (the EP Regulations).59

The Water Act 201460 introduced a right for the Secretary of State in England and the Welsh Ministers to extend the EP regime to include water abstraction, water impounding, fish pass approvals and flood defence consents, with a further update in 2016 to incorporate flood risk activities.

In 2013, there were further amendments to the environmental permitting regime, pursuant to the Industrial Emissions Directive,61 which consolidated various earlier EU directives, and in 2015 pursuant to the Energy Efficiency Directive.62

The integrated environmental permitting regime now covers a wide range of key activities, including:

  1. various industrial and power generation activities and installations specified in Schedule 1 to the Environmental Permitting Regulations;
  2. waste operations, including mining waste operations;
  3. mobile plant used in connection with a Schedule 1 activity or waste operations;
  4. water discharge activities;
  5. groundwater activity;
  6. solvent emission activity;
  7. radioactive substance activities;
  8. flood risk activities; and
  9. small waste incineration plants.

Environmental permits do not have a fixed expiry date, and remain in effect until transferred, surrendered, revoked or consolidated. Environmental permits may periodically be reviewed by the regulator. The regulator may suspend permits if there is a risk of serious pollution, or may revoke the permit where 'appropriate circumstances' exist.

ii Air quality

There are two main forms of regulation relating to air quality. Ambient air quality regulation focuses on limiting the concentrations of specific pollutants in ambient air, whereas point source pollution regulation focuses on limiting the emissions to air of certain pollutants, primarily from industrial installations. Other methods used in the United Kingdom to regulate air quality include substance bans, such as the ban on chlorofluorocarbons; emissions trading under the EU ETS; and taxation, such as the Climate Change Levy. In relation to the EU ETS emissions trading, the European Commission confirmed in July 2020 that UK installation operators and aircraft operators will be able to continue having access to their Operator Holding Accounts and Aircraft Operation Holding Accounts to comply with their 2020 obligations, until and including the date of 30 April 2021.63

Ambient air quality

Regulation of ambient air quality derives from three key sources:

  1. the UK National Air Quality Strategy (NAQS);
  2. the local air quality management (LAQM) system in England and Wales; and
  3. the EU Air Quality Directive 2008.

The NAQS, a requirement of the Environment Act 1995,64 establishes a framework for improving ambient air quality across the United Kingdom, sets standards and objectives for a number of key pollutants and explains the various measures in place to achieve those objectives. The standards set are aimed primarily at improving human health; however, the objectives in relation to nitrogen dioxide and sulphur dioxide are also set with regards to the protection of vegetation and ecosystems.

The Environment Act 1995 also sets out the LAQM system,65 which requires local authorities to review local air standards and assess compliance with the standards specified in the NAQS. If the standards are not being met, local authorities are required to designate air quality management areas and to prepare and implement remedial action plans. However, the obligation on local authorities is limited to acting 'in pursuit of the achievement' of the relevant air quality standards, as much air pollution regulation and enforcement lies outside their control.

The Air Quality Directive 2008,66 implemented into English law by the Air Quality Standards Regulations 201067 and Air Quality Standards (Amendment) Regulations 2016,68 sets obligatory limit values and non-obligatory target values for a range of air pollutants similar to the NAQS, and also requires the government to produce air quality plans setting out measures for meeting the required standards and action plans in the event that certain alert thresholds are breached. The regulations also incorporate the Fourth Daughter Directive,69 which sets minimal target values for certain carcinogenic pollutants. The United Kingdom's air quality plans were successfully challenged by ClientEarth on three occasions from 2015 to 2018, including in the High Court,70 and as such the United Kingdom released a new draft Clean Air Strategy in January 2019, which sets out the government's plan to halve the harm to human health from air pollution in the United Kingdom by 2030.71 The 2019 Clean Air Strategy has resulted from a series of public consultations conducted by Defra from May to August 2018.72

As part of its commitment to a 'Green Brexit', the UK government intends to introduce a comprehensive legislative framework to address air quality and pollution. Among other things, it is proposed that the legislation would enable the transport secretary to compel manufacturers to recall vehicles and machinery for any failures in their emissions control systems. The legislation will also create a new statutory framework for Clean Air Zones to simplify the current overlapping frameworks, as discussed above.73

In April 2019, the UK government published a National Air Pollution Control Programme,74 which sets out the government's plan to meet its 2020 and 2030 emission reduction commitments under the National Emissions Ceiling Directive 2016.75 The commitments set out in the National Air Pollution Control Programme specifically apply to sulphur dioxide, ammonia, particulate matter, non-methane volatile organic compounds and ammonia.76

iii Point source pollution

Emissions from industrial installations and mobile plants are regulated primarily under the Industrial Emissions Directive 2010,77 which replaced the former Integrated Pollution Prevention and Control regime, as well as the Medium Combustion Plant Directive 2015.78 These directives have been implemented into UK law via the EP Regulations; therefore, an environmental permit is necessary in relation to activities falling within their scope.

In November 2016, the government consulted on proposals to introduce additional controls on NOx emissions from diesel generators, including requiring an environmental permit from 2019 and imposing emission limits. On 23 March 2018, the government launched a £220 million Clean Air Fund for local authorities to use to reduce air pollution.79 The autumn 2018 budget included an additional £20 million funding to support more local authorities in meeting their air quality obligations.80 In September 2020, the government announced a new round of funding for local authorities to bid on, of at least £2 million, to be utilised on projects aiming to improve air quality and create healthier environments.81

The Clean Air Act 199382 also imposes restrictions on point source pollution, enabling local authorities to designate smoke control areas83 and making it an offence to emit 'dark smoke' from industrial or trade premises. As set out in the prior draft of the Clean Air Strategy in 2018, the government intends to update these 'outmoded' and 'underused' provisions with more flexible, proportionate enforcement powers for local government.84

iv Water quality

Discharges to water

Water pollution in England and Wales is regulated under the Water Resources Act 1991,85 which applies to all 'controlled waters', including territorial waters, coastal waters, inland freshwaters and groundwater. A discharge to water may require various different consents, depending on: the type of activity creating the discharge; the substances in the discharge; whether the discharge is to groundwater, surface water or into a sewer; and whether the discharge occurs as part of some wider industrial activity.

Most discharges to surface water are regulated under Schedule 21 of the EP Regulations, whereas most discharges to groundwater are regulated under Schedule 22. In each case, an environmental permit will be required where the discharge falls within the scope of the EP regime.

Discharges of trade effluents to sewers are instead subject to the Water Industry Act 1991,86 and require the operator to obtain a trade effluent discharge consent from the relevant sewerage company. The sewerage company itself will require an environmental permit to discharge the waste from its sewers into water, as discussed above.

Any facility regulated under some other branch of the EP regime is likely to include some form of discharge to water or sewers. In such cases, the environmental permit granted to the facility is likely to include conditions governing any discharges, for example, by monitoring the discharges that occur or minimising the emission of particular substances.

However, certain industries require a specific permit for their discharges to water pursuant to the Priority Substances Directive 2008.87 These include the paper, textiles and food industries, with the requirement of a separate environmental permit triggered upon the concentration of certain hazardous substances released to water exceeding the relevant level specified in the EP Regulations. A separate trade effluent discharge consent would also be required for the discharge of these substances into sewers. The Priority Substances Directive 2008 was amended by Directive 2013/39/EU, which subsequently has been transposed for the first time in the Water Environment (Water Framework Directive) (England and Wales) (Amendment) Regulations 2015, published in 2015 on behalf of both Defra and the Welsh government.88

UK water quality

Under the Water Framework Directive 2000,89 the United Kingdom was required to achieve good ecological and good chemical status across all types of surface water bodies, groundwater bodies and heavily modified or artificial water bodies by 2015. Implemented in England and Wales by the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017,90 the Water Framework Directive encourages a more robust approach both to point-source pollution and to diffuse water pollution. The 2017 Regulations provide that the appropriate agencies must achieve a number of objectives in respect of each river basin district by 22 December 2021, including updating management plans, establishing monitoring programmes and ensuring that each protected body of water complies with the relevant EU instrument standards and objectives.91

v Chemicals

Chemicals in the United Kingdom are regulated under the EU Registration, Evaluation, Authorisation and Restriction of Chemicals regime (REACH), as set out in the REACH Regulation 2006.92 The purpose of the regime is to ensure that chemicals are used in a manner that minimises any unacceptable risks to human health or to the wider environment, based on the transparent sharing of information throughout the chemicals supply chain. The requirements of REACH were phased-in over a 10-year period, with the final stage (registration of substances of 1 tonne or more per year) taking effect in 2018.

Although REACH will no longer apply in the United Kingdom following the transition period, this regime has been enforced in the United Kingdom via the REACH Enforcement Regulations 2008,93 with the role of enforcing authority taken on either by:

  1. the relevant environmental regulator;
  2. the Health and Safety Executive;
  3. local authorities; or
  4. the Department of Business, Energy and Industrial Strategy, as appropriate.

All these bodies are required both to cooperate and to share information in respect of REACH compliance.

The key provisions of REACH relate to the four limbs of registration, evaluation, authorisation and restriction. Those wishing to supply a substance must first register that substance with the ECHA. The ECHA may therefore exert considerable control over the chemicals industry by refusing registration to a given substance, rendering any manufacturing, import or downstream usage illegal. The supplier will also be subject to an evaluation process by the ECHA and national authorities. This evaluation could include a compliance check of dossiers, an evaluation of testing proposals and a substance evaluation to determine whether the substance in question poses a risk to human health or the environment.

Certain substances identified as 'substances of very high concern' (SVHCs) by the ECHA or national authorities will require specific authorisation to permit their use or sale. There are four broad categories of SVHCs: substances that are carcinogenic, mutagenic or toxic to reproduction; substances that are persistent, bio-accumulative and toxic; substances that are very persistent and very bio-accumulative; and substances that give rise to similar concerns to those in the previous categories. In addition, substances that are the subject of a restriction proposal by a Member State or the ECHA may be either restricted or banned entirely. Examples of restricted substances include asbestos and acrylamide.

The REACH Enforcement Regulations 2008 also place various obligations on companies operating in the chemicals sector. Failure to comply with these obligations constitutes a criminal offence. Some of the key obligations include:

  1. neither manufacturing nor placing on the market any substance that has not been registered;
  2. supplying appropriate instructions to the recipient of a substance;
  3. providing a safety data sheet;
  4. providing workers with access to information about the substances they may encounter in the course of their work;
  5. applying appropriate measures to control risks; and
  6. complying with the conditions of any authorisation.94

In relation to the United Kingdom's participation as a member of the European Chemicals Agency (ECHA), ECHA confirmed that, with the United Kingdom's withdrawal from the EU, it would be required to withdraw its appointed members from ECHA.95 In June 2020, Defra confirmed that it would implement its own version of the EU chemical regulatory system by the end of the transition period.96 In replacement of ECHA, the UK government will implement a form of UK REACH led by the Health and Safety Executive and Defra, who would act as the lead UK regulatory authority, with the EA and other regulators continuing to play a role in enforcement.97

vi Solid and hazardous waste

Solid waste

The regulatory regime for solid waste covers the entirety of the waste cycle, from generation to transport to disposal. The extent of regulation depends on whether an operator is carrying out a 'waste operation', as defined in the EP Regulations.

Waste operations include the recovery or disposal of waste, as well as any preparation of the waste prior to recovery or disposal, and are a regulated activity under the EP regime. They require the operator to hold an environmental permit, and the operator must comply with Schedule 9 to the EP Regulations. Additionally, there are certain further requirements that apply to specific types of waste operations such as landfill sites, treatment of end-of-life vehicles, treatment of waste electrical and electronic equipment, waste incineration, treatment of waste batteries, mining waste operations, radioactive waste and packaging waste. The Waste Regulations 2011,98 set out a priority order for waste management from prevention, re-use, recycling and recovery to environmental disposal as a last resort.

Under the Environmental Protection Act 1990,99 anyone handling controlled waste is subject to the waste duty of care, and therefore must ensure that the waste does not cause harm to the environment and is only transferred to an authorised person. There are a number of measures in place to raise the standards for operator competence in the waste sector, and a fixed penalty notice for breaches of the household waste duty of care.100

Hazardous waste

Hazardous waste is subject to additional regulation under the Hazardous Waste Regulations 2005,101 as amended to reflect the requirements of the Waste Framework Directive 2008.102 Waste is classified as hazardous where it is listed under the EU List of Wastes103 or the Environmental Protection Act 1990,104 or where it is specifically determined as hazardous, pursuant to the Hazardous Waste Regulations 2005.

Environmental permits are required to carry on waste operations involving hazardous waste as discussed above, and the waste hierarchy and waste duty of care apply. While the requirement for the registration of premises where hazardous waste is produced, collected or removed ended in April 2016, it is still necessary for all parties involved with hazardous waste to maintain detailed records of the production, transport, treatment and disposal of hazardous waste, whether by tipping or some other method of discharge or recovery.105 In addition, there are restrictions on the mixing of hazardous waste, and specific requirements relating to the transport of hazardous waste to ensure consignments are properly tracked.

In October 2020, the UK adopted key changes to follow its approach in minimising waste, through the adoption of the Waste (Circular Economy) (Amendment) Regulations 2020, as discussed above.

Financial provision

The operators of landfill sites are currently required to make financial provision to cover the costs associated with the closure and aftercare of the site; however, no other operators are required to make financial provisions.

A consultation by Defra and the Welsh government in 2015 found a clear majority of respondents supported the reintroduction of financial provision for all permitted waste operations, and that this provision should be sufficient to cover both the cost of returning the land to a satisfactory state and any foreseeable clean-up costs of any environmental accidents. There was also majority support for increasing the financial provision in relation to landfill sites, although this was more limited. The government accordingly expressed an intention to bring forward proposals.106 Since January 2020, in order to begin disposal operations, a financial provision must be developed for any landfill.107

vii Contaminated land

Remediation

The rules on identifying and remediating contaminated land are set out in the Environmental Protection Act 1990.108 The purpose of the contaminated land regime is to encourage the remediation of significant historic contamination. As such, it is not an offence in itself to contaminate land, but it is an offence to fail to comply with a remediation notice.

Local authorities are first required to identify contaminated land. Once contaminated land has been identified, the relevant enforcing authority must serve a remediation notice to the relevant persons requiring them to remediate the contamination. The enforcing authority is typically the local authority, but may be the relevant regulator (i.e., the Environment Agency, Natural Resources Wales, SEPA or NIEA) where the contaminated land in question constitutes a 'special site'. In relation to its compliance with SEPA, as of 1 January 2021, the UK was set to maintain its participation in the SEPA payments schemes as a non-EEA SEPA country.

In its remediation notice, the enforcing authority will identify the reasonable steps required to remediate the land. These steps are determined by reference to the efficacy of any proposed remediation actions, the environmental and health impacts of the remedial actions, the cost of the remediation and the benefits of the remediation in relation to the harm. Ideally, remediation should aim to restore the land to a position where it poses no further risk of environmental harm, such that the land no longer qualifies as contaminated. The enforcing authority cannot require a higher standard of remediation. However, where the application of this standard is not practical, the enforcing authority can consider a lesser standard.

Liability for clean up

In the first instance, the person who either caused or knowingly permitted the contamination is liable. Such a person is categorised as a Class A person. If no Class A person can be found, the current owner or occupier of the site becomes liable, and is categorised as a Class B person. The Class B person does not need to have been aware of the contamination occurring in order to be liable for it. Given the potential scale of remediation costs, the process of identifying the presence of contaminated land therefore forms a key issue in property transactions or corporate acquisitions involving the transfer of land. Where multiple Class A or Class B persons exist, the enforcing authority will apportion liability according to the rules set out in the Environmental Protection Act 1990.109

The enforcing authority also has step-in rights to carry out remediation itself in certain situations, such as in the event of an emergency, where a remediation notice has been breached, where the enforcing authority would not recover all of its costs from the appropriate person or where no appropriate person can be found.

New waste enforcement regulations were passed in 2018 to supplement enforcing authorities' powers in respect of non-compliant waste sites.110 The EA and National Resources Body for Wales are now able to restrict the entry of persons and further waste to waste sites, and require the removal of all waste at non-compliant sites.

Recovery of costs

In recovering its costs, the enforcing authority must consider the Contaminated Land Statutory Guidance.111 The polluter should pay for the cost of remediation where possible; however, enforcing authorities should aim for a result that is as fair and equitable as possible, including the cost to the taxpayer. The enforcing authority should not consider financial hardship in the process of attributing and apportioning liability; however, it may waive or reduce the final remediation costs should it consider the resulting financial hardship on those liable to be too severe.

As an alternative to recovering the costs of remediation directly, the enforcing authority also has the power to defer recovery by taking a statutory charge over the property in question, provided that the owner of the land caused or knowingly permitted the contamination.112

Climate change

The Climate Change Act 2008113 lays out regulation regarding greenhouse gas (GHG) emissions. It requires the United Kingdom to reduce its GHG emissions to 80 per cent below 1990 levels by 2050. The relevant GHGs include carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulphur hexafluoride. The Greenhouse Gas Emissions Trading Scheme Regulations 2012 also apply to monitor the reduction of GHG emissions. The Regulations set out the requirements to obtain and comply with GHG Permits.114

There are three primary methods used by the government to restrict GHG emissions:

  1. the Climate Change Levy;
  2. the Emissions Trading Scheme coupled with the Carbon Price Floor; and
  3. Climate Change Agreements.

i Climate Change Levy

Adding approximately 15 per cent to energy bills of businesses and public sector organisations, the Climate Change Levy (CCL) is a carbon tax designed both to encourage the use of energy from renewable resources, and to encourage the use of less energy more generally. There are four categories of taxable commodities that are subject to the CCL: electricity; natural gas as supplied by a gas utility; petroleum and hydrocarbon gas in a liquid state, including liquid petroleum gas; and solid fuels. Solid fuels are categorised as: coal and lignite; coke and semi-coke of coal or lignite; petroleum coke; and low value solid fuel with an open market value of no more than £15 per tonne. However, exemptions were introduced in 2014 for energy used in metallurgical and mineralogical processes, and for solid fuels used in certain gasification processes. The rate of CCL has increased almost every year since 2007, broadly in line with inflation determined with reference to the retail price index.115

ii Emissions Trading Scheme and Carbon Price Floor

The Carbon Price Floor (CPF), introduced in April 2013 as part of the government policy of Electricity Market Reform, places a minimum price on GHGs emitted by the power sector. The CPF is designed to supplement the EU ETS transposed into the United Kingdom's domestic GHG Emissions Trading Scheme Regulations 2012, which require companies to buy permits to emit greenhouse gases while generating electricity. Since the price of these permits can fall, the incentive to reduce emissions decreases. The CPF therefore imposes a minimum price that companies must pay in order to pollute, providing a baseline incentive for companies to cut emissions. In the 2014 budget, the government declared that the Carbon Price Support (CPS) rate (i.e., the difference between the future market price of carbon and the floor price that acts as one component of the CPF) would be capped at £18 per tonne/CO2 from 2016 to 2020.116 This cap was extended in the autumn 2018 budget until 2021.117 From 2021 to 2022, the government has indicated that it will seek to reduce the CPS rate if the total carbon price remains high (i.e., the sum of the CPS rate and the EU ETS price).118

In December 2017, the government passed amending regulations to bring forward the 2018 deadlines for UK-issued allowances under the EU ETS.119 As a result of the amendments, UK-regulated operators were required to report their 2018 emissions and surrender allowances for those emissions by 15 March 2019. Following Brexit, the European Commission confirmed in November 2020 that UK-accredited verifies can continue having access to their accounts up until 30 April 2021. UK operators were still part of the EU ETS throughout the transition period. The applicable deadlines for the 2020 scheme year will be 31 March 2021 to submit the Verified Annual Emission Reports, and 30 April 2021 to surrender allowances of the 2020 verified emissions.120

The government announced that following the end of the transition period, it would be open to considering a link between any future UK ETS and the EU ETS. The government published a Carbon Emissions Tax Consultation but has not yet published a response to the consultation.121

iii Climate Change Agreements

For energy-intensive businesses looking for discounts on the CCL, climate change agreements (CCAs) were introduced in 2012. These are voluntary agreements made between the Environment Agency and sector associations and their members. The agreements set targets for industries to improve energy efficiency or reduce CO2 emissions. Meeting set targets makes the industry eligible for the discount CCL tax rate. From 1 April 2013, the discount received is 90 per cent on electricity bills and 65 per cent on other fuels. However, failure to meet the set targets under a CCA can result in the imposition of a financial penalty. If operators of CCAs fail to meet their requirements, they can continue to be eligible for the discounted tax if they pay a buyout fee to cover the deficit.

The Committee on Climate Change (CCC), established as part of the Climate Change Act 2008, is an independent body that advises the government on how it should meet its carbon budgets and carries out annual assessments as to whether the government is meeting its requirements. In 2017, UK emissions were 43 per cent below 1990 levels.122 In its latest June 2020 Report, the CCC confirmed that in 2019 the UK saw a reduction of 3–4 per cent in emissions to 480 MtCO₂e, amounting to the seventh year in a row with falling emissions.123 For the UK to cut its emissions by 80 per cent below 1990 levels by 2050, domestic emissions must continue to be reduced by at least 3 per cent a year.124 The CCC Report proposes two main recommendations to UK government departments:

  1. for public money to support only the sectors that can contribute to a net zero economy; and
  2. for carbon taxation to be progressed, in order to bring behavioural changes to businesses.

iv The UNFCCC, the Kyoto Protocol and the Paris Agreement

The United Kingdom is also a party to the UNFCCC,125 and accordingly a signatory to the Kyoto Protocol126 and most recently to the Paris Agreement,127 which entered into force on 4 November 2016. The Paris Agreement places various requirements on its signatories. This includes limiting global temperature increases by, among other things: developing and implementing nationally determined contributions (NDC); peaking GHG emissions as soon as possible and progressing towards zero net emissions; minimising the loss and damage from climate change; and supporting climate change adaptation. This also requires that signatories provide financial support to developing countries and cooperate with other signatories to transfer technology, achieve their NDCs, build capacity of developing countries and improve public awareness and transparency.

However, the decarbonisation target under the Paris Agreement was agreed at an EU level, and therefore an allocation must take place to assign an NDC to the United Kingdom that may be affected by Brexit. Nevertheless, the UK government has itself committed to a legally binding target of cutting carbon emissions to 57 per cent below 1990 levels by 2032, following the end of a fifth carbon budget period.128 Further, several of the United Kingdom's decarbonisation initiatives, such as the closure of coal-fired power plants, are domestic in origin and should not be affected by any change in circumstances following the end of the transition period.

Outlook and conclusions

The UK government is planning numerous environmental reforms envisioned to take effect over the coming years. These will define the UK's future environmental and climate change policy and the mechanisms to apply it. Water abstraction is a key focus, with Defra and the Welsh government committing to bringing the current abstraction licensing system into the environmental permitting regime by 2021. In December 2017, a Water Abstraction Reform Plan was published that proposes to focus reform on addressing unsustainable abstraction, developing a stronger catchment focus for rainwater and modernising the system for abstractors.129 The Water Abstraction Reform Plan was updated in 2020, with a view for the Environmental Agency to publish updated water abstraction licensing strategies by 2021.130 The intention of the reforms was both to improve flexibility in addressing short-term water availability, and to improve long-term sustainable management supporting growth and investments. In particular, proposals include the introduction of water trading in areas of water scarcity and the incorporation of water abstraction and water impounding into the EP regime.131

The UK government has also undertaken a simplification of the regulatory regime relating to business energy efficiency through the closure of the CRC Energy Efficiency scheme from April 2019 and its replacement with an increased CCL.132 The government announced the main rates of the CCL applicable from 6 April 2020, which implement the rates announced at Budget 2018.133

Finally, the regulatory framework for hydraulic fracturing of shale gas continues to develop in response to industry studies as well as community and NGO pressure. On 11 November 2017, following a public consultation process, the government announced that it would create a Shale Wealth Fund,134 which will enable local communities to choose how they spend up to £1 billion in total (up to £10 million per local community) from the proceeds of shale gas extraction on funding for local projects.135 The Shale Wealth Fund will initially consist of up to 10 per cent of tax revenues arising from shale gas production, a proportion of which will be distributed to local communities over a 25-year period.136

The future development of UK environmental legislation is to some extent uncertain. According to recent governmental guidance on the upholding of environmental standards from 1 January 2021, the UK government has confirmed that some environmental legislation will remain unaltered, while other legislation will be adapted to allow existing EU environmental laws to continue operating in UK law.137 Changes to the current legislation will include the removal of references to EU legislation, the transfer of powers from EU institutions to UK institutions and, finally, UK compliance with international agreement obligations. The introduction of the Environment Bill provides for the creation of a new independent body for environmental standards, the Office for Environmental Protection (OEP).

Footnotes

1 Tallat S Hussain is environmental counsel at White & Case LLP. The author was assisted by Sarah Voulaz, legal assistant (environmental) at White & Case LLP.

2 Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (Text with EEA relevance); http://ec.europa.eu/clima/policies/ets_en.

3 The Paris Agreement under the United Nations Framework Convention on Climate Change (UNFCC) was adopted on 12 December 2015 and entered into force on 4 November 2016; http://unfccc.int/paris_agreement/items/9485.php.

4 GOV.UK, Global commitment at United Nations Assembly to reduce pollution; www.gov.uk/government/news/global-commitment-at-united-nations-assembly-to-reduce-pollution.

5 Environmental Protection (Microbeads) (England) Regulations 2017.

8 GOV.UK, Policy Paper, Introduction of a new plastic packaging tax; www.gov.uk/government/publications/introduction-of-a-new-plastic- packaging-tax/introduction-of-a-new-plastic-packaging-tax.

9 HM Government, Cutting Red Tape, Review of the waste and recycling sector; www.gov.uk/government/uploads/system/uploads/attachment_data/file/504777/bis-16-154-crt-review-waste.pdf.

10 Waste (Circular Economy) (Amendment) Regulations 2020.

11 Defra, Consultation on the consolidation of the Environmental Permitting (England and Wales) Regulations 2020; www.gov.uk/government/uploads/system/uploads/attachment_data/file/484024/epr-consolidation-consult-sum-resp.pdf.

12 Draft Clean Air Strategy, pp. 74–76.

13 Gareth Roberts, Birmingham joins Bath by announcing clean air zone start date; www.commercialfleet.org/news/latest-news/2020/10/08/birmingham-joins-bath-by-announcing-clean-air-zone-start-date.

14 Jillian Ambrose, UK government planning new green investment bank; www.theguardian.com/environment/2020/jul/15/uk-government-planning-new-green-investment-bank.

15 BEIS, Carbon capture, usage and storage. A government response on potential business models for Carbon Capture, Usage and Storage; https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/909706/CCUS-government-response-business-models.pdf.

17 Defra, Policy Paper, A Green Future: Our 25 Year Plan to Improve the Environment, p9; 36; 139.

19 Industrial Emissions Directive 2010/75/EU.

22 Natural Resources Wales; https://naturalresources.wales/.

23 Scottish Environment Protection Agency; www.sepa.org.uk/.

24 Department of Agriculture, Environment and Rural Affairs; www.daera-ni.gov.uk/.

25 The NIEA is also responsible for the preservation of the built environment in Northern Ireland, fulfilling a similar role to organisations such as English Heritage.

26 Environmental Protection Act 1990 c. 43.

27 Contaminated Land (England) Regulations 2006/1380, Regulation 2.

28 Lungowe v. Vedanta Resources plc [2016] EWHC 975 (TCC).

29 Supreme Court, Judgment on Permission to Appeal, April 2019. See www.supremecourt.uk/cases/uksc-2017-0185.html

30 Chandler v. Cape plc [2012] EWCA Civ 525.

31 Lungowe v. Vedanta Resources plc [2017] EWCA Civ 1528.

32 R (ClientEarth) v. The Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28.

33 ClientEarth v. The Secretary of State for the Environment, Food and Rural Affairs [2015] EWHC 2740 (Admin).

34 ClientEarth (No. 3) v. The Secretary of State for the Environment, Food and Rural Affairs, the Secretary of State for Transport and Welsh Ministers [2018] EWHC 315 (Admin).

35 Commission v. United Kingdom [2017] Env LR 6.

36 Large Combustion Plant Directive 2001/80/EC. Superseded by the Industrial Emissions Directive on 1 January 2016.

37 Legal Aid, Sentencing and Punishment of Offenders Act 2012 c. 10, Section 85.

38 Magistrates' powers to impose imprisonment are specified by Section 78 PCC(S)A and Section 133 Magistrates' Courts Act 1980 (MCA): six months for one offence or 12 months for two.

39 R v. Thames Water Utilities Limited [2015] EWCA Crim 960.

40 ibid. Mitting J at para. 46

41 McCombe LJ at para. 20, R v. Ineous Chlorvinyls Ltd [2017] Env LR 7(2016).

42 GOV.UK, Thames Water ordered to pay record £20 million for river pollution; www.gov.uk/government/news/thames-water-ordered-to-pay-record-20-million-for-river-pollution.

43 Ofwat, PN 22/18: Thames Water's failure to tackle leakage results in £65m package for customers; www.ofwat.gov.uk/pn-22-18-thames-waters-failure-tackle-leakage-results-65m-package-customers/.

44 GOV.UK, Tesco hit with major £8million fine for pollution incident; www.gov.uk/government/news/tesco-hit-with-major-8million-fine-for-pollution-incident. Tesco Stores Ltd was also required to pay a further £5 million fine for a health and safety offence in relation to the same incident.

45 GOV.UK, Thames Water fined £1 million for pollution to Grand Union Canal; www.gov.uk/government/news/thames-water-fined-1-million-for-pollution-to-grand-union-canal.

46 GOV.UK, Yorkshire Water fined £1.1 million for illegal sewage discharge; www.gov.uk/government/news/yorkshire-water-fined-11million-for-illegal-sewage-discharge.

47 GOV.UK, Utilities and contractors fined almost £1m for polluting brook with corrosive bleach; www.gov.uk/government/news/united-utilities-and-contractors-fined-almost-1m-for-polluting-brook-with-corrosive-bleach.

48 GOV.UK, Leeds businessman receives record jail sentence over £2.2m recycling fund; www.gov.uk/government/news/leeds-businessman-receives-record-jail-sentence-over-22m-recycling-fraud.

49 GOV.UK Regulatory Enforcement and Sanctions Act 2008 c. 13, Part 3.

50 GOV.UK, Water company to pay a record £975,000 towatds environmental improvements following sewage spills on Dorset coast; www.gov.uk/government/news/water-company-to-pay-a-record-975000-towards-environmental-improvements-following-sewage-spills-on-dorset-coast.

51 Thomson Reuters, Environment Agency publishes list of enforcement undertakings in 2018, including highest ever; https://uk.practicallaw.thomsonreuters.com/w-017-7583?transitionType=Default&contextData=(sc.Default)&firstPage=true.

52 Companies Act 2006, Section 172. Note that the Companies Act applies to all UK companies.

53 Directive 2014/95/EU.

54 The regulations came into force on 26 December 2016. The amendments apply in relation to the financial years of companies and qualifying partnerships on or after 1 January 2017; www.legislation.gov.uk/uksi/2016/1245/regulation/1/made. The Companies Regulations 2016 amend the Companies Act 2006 to implement the Directive in the text. See Part 15 of the Companies Act 2006, which has now been amended.

55 Public Interest Disclosure Act 1998 c. 23.

56 Wharton v. Ward Recycling Ltd ET/2800817/2008; BP plc v. Elstone and another UKEAT/0141/09.

57 Directive (EU) 2019 of the European Parliament and of the Council on the protection of persons who report breaches of Union law; https://data.consilium.europa.eu/doc/document/PE-78-2019-INIT/en/pdf.

59 Environmental Permitting (England and Wales) Regulations 2016/1154. For the devolved legislatures in Scotland and Northern Ireland, the Environmental Authorisations (Scotland) Regulations 2018 and the Northern Ireland Prevention and Control (IPPC) system are applied.

60 Water Act 2014 c. 21.

61 Industrial Emissions Directive 2010/75/EU.

62 Energy Efficiency Directive 2012/27/EU.

64 Part IV Environment Act 1995 c. 25.

65 ibid.

66 Air Quality Directive 2008/50/EC.

67 Air Quality Standards Regulations 2010/1001.

68 Air Quality Standards (Amendment) Regulations 2016/1184.

69 Fourth Daughter Directive 2004/107/EC.

70 See footnotes 32 to 34.

73 ibid. p72.

74 ibid. p71.

75 Directive 2016/2284/EU of the European Parliament and the Council on the reduction of national emissions of certain atmospheric pollutants. The Directive was implemented in the UK by the National Emission Ceilings Regulations 2018/129.

77 Industrial Emissions Directive 2010/75/EU.

78 Medium Combustion Plant Directive 2015/2193/EU.

79 GOV.UK, £260 million of clean air funding launched by government; www.gov.uk/government/news/260-million-of-clean-air-funding-launched-by-government.

81 GOV.UK, £2 million fund for local action on air quality; www.gov.uk/government/news/2-million-fund-for-local-action-on-air-quality.

82 Part I Clean Air Act 1993 c. 11.

83 Smoke control orders have now been implemented in most of the UK's major towns and cities.

84 Draft Clean Air Strategy 2018, p6.

85 Water Resources Act 1991 c. 57.

86 Water Industry Act 1991 c. 56.

87 Priority Substance Directive 2008/105/EC.

88 GOV.UK, Priority substance list extended by amendment to Water Regulation; www.gov.uk/government/news/priority-substance-list-extended-by-amendment-to-water-regulation.

89 Water Framework Directive 2000/60/EC.

90 The Water Environment (Water Framework Directive) (England and Wales) Regulations 2017/407 revoke and replace the Water Environment (Water Framework Directive) (England and Wales) Regulations 2003/3242.

91 Water Environment (Water Framework Directive) (England and Wales) Regulations 2017/407, Regulations 12(6), 13 and 22(6). Note that the relevant EU instruments are listed in Schedule 3.

92 Regulation (EC) 1907/2006.

93 REACH Enforcement Regulations 2008/2852.

94 REACH Enforcement Regulations 2008/2852, Schedule 1.

95 ECHA, UK participation in ECHA's bodies and networks; https://echa.europa.eu/uk-participation-in-echa-s-bodies-and-networks.

96 Amanda Doyle, UK confirms it will not align with EU chemicals agency; www.thechemicalengineer.com/news/uk-confirms-it-will-not-align-with-eu-chemicals-agency/.

98 Waste (England and Wales) Regulations 2011/988.

99 Environmental Protection Act 1990 c. 43, Section 34.

101 Hazardous Waste (England and Wales) Regulations 2005/894.

102 Waste Framework Directive 2008/98/EC.

103 Commission Decision on the European List of Waste (COM 2000/532/EC), as amended by Commission Decision 2014/955/EU.

104 Environmental Protection Act 1990 c. 43, Section 62A.

105 Note that registration is still required for hazardous waste producers in Wales; https://naturalresources.wales/permits-and-permissions/waste/register-as-a-producer-of-hazardous-waste/?lang=en.

106 Defra, Government response to consultation on enhanced enforcement powers and other measures to tackle waste crime and entrenched poor performance in the waste management industry; www.gov.uk/government/uploads/system/uploads/attachment_data/file/466879/waste-crime-consult-sum-resp.pdf.

108 Environmental Protection Act 1990 c. 43, Part IIA.

109 ibid.

110 Waste Enforcement (England and Wales) Regulations 2018/369.

112 Environmental Protection Act 1990 c. 43, Part IIA.

113 Climate Change Act 2008 c. 27.

114 Greenhouse Gas Emissions Trading Scheme Regulations 2012.

115 Thomson Reuters, Climate change levy (CC), climate change agreements (CCAs) and carbon price floor (CPF); https://uk.practicallaw.thomsonreuters.com/Document/I2cc9bcc0e67f11e398db8b09b4f043e0/View/FullText.html.

119 Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2017/1207.

120 BEIS, Meeting climate change requirements from 1 January 2021.

122 Committee on Climate Change, Reducing UK emissions, 2019 Progress Report to Parliament; www.theccc.org.uk/tackling-climate-change/reducing-carbon-emissions/how-the-uk-is-progressing/.

123 Committee on Climate Change, Reducing UK emissions, 2020 Progress Report to Parliament;
www.theccc.org.uk/wp-content/uploads/2020/06/Reducing-UK-emissions-Progress-Report-to-Parliament-Committee-on-Cli.._-002-1.pdf.

124 Thomson Reuters, Climate change levy (CCL), climate change agreements (CCAs) and carbon price floor (CPF); https://uk.practicallaw.thomsonreuters.com/Document/I2cc9bcc0e67f11e398db8b09b4f043e0/View/FullText.html.

125 United Nations Climate Change; http://unfccc.int/2860.php.

126 United Nations Climate Change, Kyoto Protocol – Targets for the first commitment period;
http://unfccc.int/kyoto_protocol/items/2830.php.

127 United Nations Climate Change, The Paris Agreement http://unfccc.int/paris_agreement/items/9485.php.

128 The Carbon Budget Order 2016/785.

131 Defra, UK Government response to consultation on reforming the Water Abstraction management System; www.gov.uk/government/uploads/system/uploads/attachment_data/file/492411/abstraction-reform-govt-response.pdf.

135 ibid.

137 GOV.UK, Upholding environmental standards from 1 January 2021; www.gov.uk/guidance/upholding-environmental-standards-from-1-january-2021.

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