What does the ProTreat case tell us about the waste hierarchy?

A group campaigning against a municipal waste incinerator has sent me some correspondence they’ve had with the Environment Agency regarding the application of the waste hierarchy. The group sought to argue that the local waste disposal authority’s decision to invest in the incinerator, for various reasons, constituted a breach of the waste hierarchy.

Unsurprisingly, based on my experience and research, the Agency demurred from investigating whether the council was in compliance. What was new in the correspondence, though, was that the Agency quoted a piece of caselaw to support its inaction. In this article, I unpack the case and what it means for the waste hierarchy.

Slippery customers

The case in question is R (on the application of Protreat Ltd) v Environment Agency [2018] EWHC 1983 (Admin), and concerned the end of waste status of fuel oil products derived from waste lubricating oils. ProTreat, a consultancy, sought, unsuccessfully, to argue that the Environment Agency had erred in regarding recycled oils that are generated from waste oils as still being waste, and that the Agency had an obligation to provide binding end of waste guidance on waste oils. The Agency had instead concentrated its efforts on the production of a quality protocol for fuels produced from waste oils – a form of energy recovery, rather than recycling.

In the course of the arguments, the claimant said that the Agency was obliged “to perform its functions, so far as possible, to ensure that waste oil treatments higher in the waste hierarchy ‘are more attractive than treatments lower in the hierarchy’.”

This argument failed, as did the case as a whole. It seems that the claimant didn’t do a great job of articulating their position, with the judge, Sir Wyn Williams (Williams J), remarking

“it has been difficult to keep in focus, precisely, the nature of the Claimant’s complaints and the legal basis for those complaints. There have been a number of twists and turns….”

That sort of comment doesn’t bode well for your prospects of success.

Wyn or lose

However, the judge decided to consider the arguments, and reached a judgment. In the correspondence I have seen, the Agency summarises his conclusions regarding the waste hierarchy as follows:

“[C]ompliance with Article 4 of the Directive (as transposed by Regulation 12) does not require the waste hierarchy to be strictly applied from the top down in descending order.”

and

“[T]he waste hierarchy must be applied flexibly otherwise ‘…one would never logically get beyond prevention unless and until it became clear and obvious that prevention could not be achieved in relation to a particular form of waste…’”

The Agency deployed the comments to bolster its prior position on the waste hierarchy, which might be summarised as:

• The Agency is not obliged to investigate all apparent breaches of the hierarchy; and
• No apparent breach to which it has been alerted has yet met the threshold necessary to merit an investigation.

Now, the Agency seems to be hinting that behaviour that might appear to be a breach of the hierarchy may actually be an example of someone applying it in a flexible way, creating a further hurdle in the way of regulatory action. The question that arises is how flexible application differs from not applying it at all!

Strictly wriggle room

What does Williams J mean by “strict application”? This is explained in para 71 of the judgment:

“The starting point must be the terms of Article 4 itself. Without doubt, it creates a hierarchy which must be applied “as a priority order in waste prevention and management legislation and policy”. Even when applying the hierarchy in this context, however, member states must take measures to encourage the options that deliver “the best overall environmental outcome”. In my judgment that is a clear recognition that a strict application of the hierarchy in all circumstances is not always justified. So, for example, a policy which dictates or encourages the expenditure of large sums of money solely on prevention – the top rung of the Waste hierarchy – would not be a “necessary measure” if it made no contribution to the best overall environmental outcome.”

This is superficially persuasive. In the context of a limited budget, it would not be sensible to put all your money into prevention if, for example, diminishing returns meant that the environmental benefits resulting from some of the expenditures were small. It especially seems reasonable in this case, where the Agency had put quite a bit of work into the development of an improved regulatory framework for recycled oil, although this had not yielded results that satisfied the claimant.

However, the “strict application” scenario Williams J outlines is a strawman, because:

• Any measure that prevents waste will contribute environmental benefits; and
• No-one spends all their money on prevention, to the neglect of energy recovery or disposal.

The issues that tend to be disputed are what the balance of expenditure across the rungs of the waste hierarchy should be. Often, there are beneficial waste prevention measures that could be implemented, but aren’t. The same goes for measures to increase recycling; and there are examples of decisions where investing heavily in energy recovery makes it harder to increase recycling in future. Further, the concept of prioritising the higher levels of the waste hierarchy seems to play little role in Williams J’s thinking.

One more into the breach

Fortunately, he further explains what he considers might constitute legal compliance:

“[I]f the best overall environmental outcome would be achieved by a policy which spread the expenditure between prevention and a number of other measures then, in my judgment, the terms of Article 4 would be satisfied and there would be no breach by the body which adopted and applied such a policy.”

This seems to imply that any entity subject to the waste hierarchy ought to undertake an analysis of how it can achieve the best overall environmental outcome with the resources at its disposal, and prioritise its expenditures accordingly – skipping the priority order altogether. Presumably, unless you’ve taken some such analysis, you can’t show that you’ve properly applied the hierarchy.

Unfortunately, the Agency wasn’t put to proof on whether their approach to waste oils met this criterion, as the case fell down in so many areas. With waste oils, which are likely to be separately collected under current rules, the key question once they have arisen is what kind of treatment that they receive – recycling, energy recovery or disposal – with the former being environmentally preferable. If there’s a context where “strict application” of the hierarchy might work with waste that has arisen, this would be it. You don’t have the sorts of issues to which residual municipal waste gives rise.

So, how would this thinking apply in a context such as a local authority making decisions about waste collections or waste treatment? The first thing to note is that the discussion above concerns the application of the waste hierarchy as it is expressed in Article 4 of the Waste Framework Directive; it doesn’t address the hierarchy as expressed domestically, in Regulation 12 of the Waste (England and Wales) Regulations 2011 or in the related statutory guidance.

That’s probably appropriate – Regulation 12 is addressed to organisations producing or managing waste, not to policy makers or regulators, whereas Article 4 is addressed to the governments of member states, of which the Agency is agreed in [2018] EWHC 1983 (Admin) to be “an emanation”. But it is questionable whether Williams J’s problematic discussion of Article 4 should be read as over-ruling statutory guidance.

The guidance presents a simple flow chart (Could more of my waste be reused? Could more be recycled?), and mentions economic viability as one criterion affecting whether a particular measure intended to boost waste up the hierarchy might be reasonable. There is no suggestion that an analysis of “best overall environmental outcome” is required, as Williams J implies; rather, possible interventions are examined at each level of the hierarchy, starting at the top.

Agency theory

By quoting the Williams J’s analysis in support of its position, the Agency is therefore acting in quite an odd way:

• It sets a Williams J’s analysis of Article 4, as it applies to policy makers, ahead of what the UK law and guidance says about waste management;
• It chooses to focus on the “no strict application” element of the judgment, rather than the positive recommendation regarding how the law should be applied; and
• When it concludes that “compliance with Article 4 of the Directive (as transposed by Regulation 12) does not require the waste hierarchy to be strictly applied from the top down in descending order”, it seems a lot like it is saying that there is no enforceable requirement to apply the hierarchy at all. This may reflect Williams J’s view, but conflicts with the clear instruction in both pieces of legislation to apply the hierarchy as a priority order.

This reading of the argument in ProTreat seems rather at odds with what the judge actually wrote, which was the waste hierarchy would be satisfied by the economically viable combination of measures that leads to the best overall environmental outcome. I don’t think that’s the right way to interpret the law (it effectively divides through the hierarchy), but if it is, anyone who cannot demonstrate their approach to waste management delivers the best overall outcome – quite a high bar – is potentially in breach of the rules.

The Agency might wish to bear this in mind when quoting ProTreat as a reason for non-enforcement.

Featured image: David Castor (CC0 1.0), via Wikimedia Commons.