Progress report: what’s going on in the Environment Bill Committee?

The Environment Bill is taking forward the huge changes in waste management in England promised in the 2018 Resources and Waste Strategy, and fleshed out in four consultations in 2019. Despite the legislation taking shape, there still seems to be some reticence about beginning to plan for its effects, despite the rapid changes that will be required by the implementation timetable.

Perhaps part of the issue is that the Bill is not yet finalised. It had its first committee debate back on 10^th March, and – after a delay to the committee process caused by COVID-19 – the committee is now due to report by 29^th September. After that, it will return to the House of Commons for further debate before its third reading, and will then move on to Lords.

Evidentiary rule

How likely is it that the Commons bill committee will recommend significant changes to what the Government is proposing on waste? The indications to date are – not very. Included in the bill documents we can see the amendments that have so far been proposed by members of the committee, as well as the views that have been presented to the committee, in both written and oral evidence.

Overall, relatively little of the evidence has been concerned with Part 3 of the Bill, the part dealing with waste. In part, that is because much of the detail of the proposals on issues such as the deposit scheme and producer responsibility remain to be fleshed out in subsequent regulations.

Written evidence has been received from the Local Government Association (LGA), broadly welcoming the proposals but calling for local authorities’ additional costs to be met by central government, and for local discretion on the approach that is adopted to waste collection. Coca-Cola has also submitted evidence, again welcoming the proposals but calling for co-ordination between Scotland and the rest of the UK on the design of the deposit scheme.

Meanwhile, the Society of Independent Brewers has written to express concern about the potential impact of a deposit scheme on their members and proposing rather poorly worded amendments that would require the deposit scheme administrator to show how it would fulfil the needs of small producers and allow them to take account of the size of the producer when setting fees and the scope. Few of the other responses touch on waste.

Giving them the verbals

In the course of the oral evidence, the committee heard from organisations including the LGA, Veolia, the Green Alliance, the Food and Drink Federation (FDF), the Federation of Small Businesses (FSB) and Keep Britain Tidy. Many of the witnesses broadly welcomed the proposals, although several asked for greater focus on the application of the waste hierarchy and some had more specific concerns. For example:

• The FDF was concerned about a possible over-emphasis on issues to do with single use plastics and the impact of the proposed plastic packaging tax (which they consider to duplicate the expected effect of modulated fees under extended producer responsibility (EPR)). This argument highlights an important issue – as long as EPR functions as a cost recovery measure, then modulation has the potential to ‘overlap’ with the objectives of a tax. The proposed tax aims to increase the use of recycled materials in plastic packaging; and while the plans on modulation are not yet entirely clear, it could be focused on the extent to which packages are actually recycled. More fundamentally, EPR schemes will act as systems of cost recovery. Taxes can be used as a means to shift behaviour, whilst raising revenue, and thereby become part of the costs that producers are required to cover. Depending on the design of the fee modulation, it may duplicate some of the behavioural shifts that the tax delivers, but this is not necessarily the case.
• The FSB said that small businesses should be able to make use of domestic-type waste collections, rather than having to deal with the costs and uncertainties of finding a private waste collector – a view quite supportive of the introduction of commercial waste zoning. Regarding the DRS, it was concerned that some of its members might find it difficult to take back beverage containers due to space constraints. Such concerns are being addressed in Scotland’s DRS by allowing manual as well as RVM collections, ensuring that frequent collections are available from space-limited premises, and allowing exemptions where there is no feasible way to accommodate a return point.
• The LGA recounted its experience that promises of funding from central government did not always match up with local government’s expectations. This experience notwithstanding, the government has committed to “fully funding local authorities to do that in line with the new burdens doctrine”, at least in respect of implementing separate food waste collections.

Small change

Committee members have put forward several proposed amendments to the Bill, some of which relate to its waste provisions. Amongst the more significant ones are:

• An amendment to the clause on transfrontier shipments (Clause 58 of the published draft) to require the Secretary of State to “prohibit the exportation of waste consisting wholly or mostly of plastic from no later than March 2025”. If this amendment was accepted, there would be far more certain driver to establish more plastics reprocessing infrastructure in the UK.
• A new clause requiring the Secretary of State to establish, within 12 months of the Bill being passed, “a register of the end use of all recycled waste created, collected or disposed of in England”, including both household and commercial waste, which would be open to the public. This would be very challenging at present, not least because there is no reliable information at all that is collected centrally in relation to commercial waste. I had assumed that the waste tracking system proposed in clause 54 of the Bill would, as a matter of course, track each tonne of waste to its end destination and, if so, it would make little sense to produce a separate tool to gather end destination data. Presumably, this clause would have the effect of bringing forward the date by which the tracking system would need to be implemented, although getting it off the ground in 12 months could be tricky.
• A new clause requiring the Secretary of State to take account of the waste hierarchy in discharging all of his responsibilities under Part 3. The Secretary of State’s responsibilities include:
  • Making regulations on producer responsibility for disposal costs, resource efficiency requirements, the provision of resource efficiency information, establishing deposit schemes and charges for single use items, and setting up a waste tracking system;
  • Specifying in regulations the description of items that are to be classed as recyclable (i.e. the types of metal, plastic, paper or glass items that must be separated for recycling), and the types of premises to be classed as “relevant non-domestic premises” that produce household waste;
  • Making regulations that provide exemptions to the requirement to source separate recyclable waste streams, or add new recyclable waste streams;
  • Producing guidance on the source separation requirements; and
  • Making provision regarding enforcement.

The requirement to take the waste hierarchy into account seems harmless, but is perhaps unlikely to have much bearing on how the Environment Secretary goes about many of these tasks. One possible exception is the DRS rules, where it might involve needing to consider whether, and if so, how, to encourage the use of refillable beverage containers. Another might be the exemptions, guidance and enforcement arrangements regarding source separation and recyclable waste streams: the waste hierarchy considerations might lead the Secretary of State to have to prioritise declaring additional streams “recyclable”, requiring separate collection and giving the relevant enforcement bodies adequate powers in order to ensure compliance with the hierarchy.

All of the indications to date, then, are that the waste and resources provisions of the Environment Bill are likely to emerge out of its Commons Committee stage little changed. Indeed, even if the committee proposed changes, the government has a sufficiently large majority that it would not necessarily need to accept them, unless there is bipartisan agreement that they are improvements. With this in mind, despite the Bill’s passage now unlikely to be completed before the end of the year, it is becoming ever clearer that its proposals are likely to hit the statute book before long.  The evidence that the waste sector is planning for their implementation is less than compelling, but the need for it is becoming more pressing with each passing day.

Featured image: (CC BY-SA 4.0), Jwslubbock via Wikimedia Commons.