October 11th, 2013
by Jane Green
I had never heard of the European Parliament’s Committee on Petitions until recently. Yet this little-known arm of the Parliament, by agreeing to examine whether the way that waste infrastructure planning decisions are made in the UK is compliant with the Aarhus convention, may be starting off a process that has some profound implications, both for the planning process and for waste management.
The opportunity to speak to the Committee on the 16th September arose thanks to campaigners in Worcestershire who had petitioned to draw attention to the lack of information about a proposed waste incinerator there and being prevented from participating effectively in discussions on future waste treatment.
Despite an encouraging conversation with a senior member of the committee secretariat I was still surprised to find how enthusiastic the MEPs present were to have the issues that were raised investigated by the European Commission. My concerns were shared about the way the PFI system limits public access to information and makes it hard for us to tell whether councils are really choosing the option that offers the best value for money, balancing both economic and environmental considerations.
Presented and correct?
I’d like to share the short presentation I gave – and then to enlist your help to gather case studies so that I can take this argument forward. Here’s what I said:
“Thank you for this opportunity to present this statement. At present, communities in the UK are denied effective participation in key decisions affecting the local and wider environment. My interest is in Zero Waste. I will base this statement on my own experience or knowledge of decisions regarding waste infrastructure projects in England; most recently in Herefordshire and Worcestershire where this petition originates from.
Many local authorities are developing waste infrastructure using private investment capital through the “private finance initiative” (PFI). The main way in which the public can participate in decisions regarding the infrastructure is through the public planning process.
I have found that:
- the secrecy that surrounds PFI contracts, due to ‘commercial confidentiality’, makes it impossible for the public to properly understand the environmental arguments and weigh up costs and benefits.
- while the local authority and its developers use the services of lawyers and experts to make their case, members of the public seeking to contest the development do not have the resources to make their arguments effectively.
The UK Government has accepted the need to make legal aid available for other types of environmental cases, but has excluded planning cases. I believe that in order for communities to participate in environmental decisions the presumption of secrecy regarding financial details of PFI contracts should be lifted, and that legal aid should be made available for waste planning cases.
In the past decade, European legislation has led to a revolution in waste management. The Waste Hierarchy now obliges member states to seek to drive waste out of incinerators and landfill and towards recycling, composting, reuse, and the designing out of ‘residual’ waste. The Resource Efficient Europe agenda can be expected to advance this trend still further.
Most citizens are committed to high recycling to help the environment; but it is also a way to save money. Best practice authorities are already achieving recycling rates of 70% and at lower costs than low recycling authorities. They are benefiting from income from the sale of recyclables. By using modern collection methods for separate waste streams, such as food waste, they are accessing the competitive and often cheaper waste market. This achieves a more flexible modular system.
In contrast, rigid PFI contracts or the like are unable to respond to the rapidly changing waste world. For example, one 15 year old waste contract has needed 54 variations costing £49 million in order to bring services in line with new environmental legislation. Out of date price structures and recycling supplements are making it more expensive to recycle than to land fill.
Entranced by the lobby
The UK has already invested heavily in incinerators. With a substantial and growing overcapacity both in the UK and Europe, there is plenty of affordable capacity for UK waste rather than building new capacity, with much room to improve recycling. High recycling offers many benefits.
So, for both environmental and economic reasons, citizens have an interest in participating in their council’s choice of waste management methods. Yet the voices of citizens are not easily heard. There is a well-resourced incineration lobby in the UK that exists to promote the idea to councils that building a new incinerator is the only realistic alternative to landfill, and their voice tends to be heard over and above the protestations of local communities.
Lack of access to clear information can make it impossible for communities to show that a green alternative makes economic sense. Yet enormous sums are at stake, with 25-30+ year incinerator contracts costing around £1 billion each. Without Government subsidies and the prospect of Treasury Infrastructure Guarantees most schemes could not go ahead. Extra millions of pounds are being taken from council budgets to pay for these at a time of cuts.
Councils are taking massive commercial risks that the private partner cannot bear. This includes the ‘risk’ of higher recycling and subsequent spare capacity and the ‘risk’ of changes in Environmental Legislation such as carbon or disposal taxes, or the banning of plastics and organics from incineration. These create strong financial disincentives to increase recycling yet communities are not told of these risks or enabled to comment on them.
Tenders for waste plant do not include public consultation on the content or the weighting given to factors used to assess the bids. Yet these contracts often encompass environmental decisions, including the use of specific technologies, sites, or treatment capacities. At present it can take years to gain access to even heavily redacted portions of such waste contracts, by which time it is too late for public scrutiny.
Even the poorest communities are not granted legal aid or equivalent support for assessing and commenting on planning applications, or for taking part in public inquiries or strategic plan-making processes. Wherever a planning application is refused, the applicant has an automatic right of appeal. Citizens have no such right.
Public inquiries take an adversarial approach and tend to make the public feel like they are on trial rather than having something to contribute. A lack of finance prevents communities from enjoying equal representation. Even with extensive fundraising, communities can usually only afford professional support on a very limited basis, despite being pitched against experienced lawyers and technical experts employed by the applicant. The applicants’ experts are often paid hundreds of thousands of pounds by the council under the terms of a secret waste contract.
I understand that the Aarhus Convention guarantees everyone the right of access to environmental information which public authorities are obliged to actively disseminate. Public participation in environmental decisions should also take place from an early stage as Judicial Review cannot remedy bias which is introduced earlier on. Also the expense of Judicial Review, along with the time limits involved, can prevent many communities from accessing justice.
I propose that in order for the UK to fulfil its ‘access to justice’ obligations in relation to waste infrastructure, the matters I have raised here today need to be comprehensively investigated, and addressed through appropriate changes to domestic rules, regulations, systems and procedures.
Furthermore many giant incinerator contracts are moving towards commercial close. Given the lack of ‘access to justice’ and prohibitive expense of cancelling contracts once entered into, I sincerely request that the Court of Justice will request a moratorium on these projects whilst investigations take place.
I’m glad to say it went down well, and I had some very positive conversations afterwards. The Committee is keeping the petition open and is going to investigate further. I’ve been invited to gather and submit examples of cases where members of the public have not been able to obtain the information they needed about a waste planning decision, or have otherwise been excluded from effective participation, e.g. because time (and/or money) ran out before there was the opportunity to challenge a decision. If you have a good example, and would be prepared to write a short summary explaining it, please do get in touch with me via the AarhusCaseStudies@gmail.com email address.