25.03.2024

Environmental weekly news round up - 22nd March 2024

Welcome to the latest edition of our weekly Environment Law news update. As ever, we bring you developments, insights, and analysis in the world of environmental law. Also, in this occasion our Environmental Insight section addresses the guidance provisions in case a threshold of more than 10% is required for BNG.

NEWS ROUND UP

Corporate Sustainability Due Diligence Directive (CSDDD or CS3D) is back on track

As we previously reported here, the CSDDD faced a hurdle in late February when the European Council failed to reach the minimum threshold for its approval. This was due to voting abstentions from several EU countries, which were concerned about the financial and administrative burdens that CSDDD might involve. In order to reach a compromise with the dissident countries a proposal was released to reduce the scope of the directive.

Fortunately, new developments this week have put back CSDDD on track.

On 15 March, EU countries approved a narrowed version of CSDDD, known as the Belgian compromise. In this new version, CSDDD would only be applicable to companies with at least 1000 employees and with an annual turnover of more than €450m, which is a big change considering that in its origins CSDDD was supposed to apply to companies with at least 250 employees and annual turnover of more than €50m. Among other changes, in this new version responsibilities in terms of waste management were reduced and a proposed mechanism allowing trade unions to raise claims against non-compliant companies was removed.

On 19 March, the European Parliament’s Legal Affairs Committee announced voted to approve the Belgian compromise text. This opened the door to put the directive for a vote during April’s plenary parliament session scheduled for 22—25 April 2024. This vote will be the last hurdle before CSDDD gets approved.

Bill proposed to strip Natural England of powers to designate SSSIs

Conservative MP for St Ives, Derek Thomas, brought a motion for leave to bring a new Bill which would see the power to designate sites of special scientific interest (SSSIs) transferred from Natural England to the Secretary of State.

SSSIs are currently given legal protection when designated by Natural England (or Natural Resources Wales) to safeguard an area’s flora, fauna, geological or physiological features. The designation then restricts the way the land can be used and managed.

Thomas has brought the Bill following designation last year of the Penwith Moors and Downs in his constituency. In his speech to parliament, Thomas recognised that much of this area is “unique heathland that provides a habitat for many rare species” but criticised Natural England, saying many local farmers “were shocked by the high-handed way in which Natural England approached the designation”.

The Bill proposes to allow Natural England to identify sites for designation and collate the relevant data and evidence, but for the final decision to then be handed to the Secretary of State for Environment, Food and Rural Affairs. Thomas says of the current system that “Natural England is making its own homework, and the experience of farmers in my constituency is that they could do better”.

Thomas suggests the Bill will improve the process as DEFRA will be able to consider the social, cultural and economic implications of notification as an SSSI, which Natural England currently cannot.

The Bill is being backed by DEFRA secretary Thérèse Coffey, former nature minister Trudy Harrison, former junior DEFRA minister Steve Double, the chair of the Environmental Audit Committee Philip Dunne, and the chair of the Environment, Food, and Rural Affairs Committee Sir Robert Goodwill.

The second reading of the Bill is due to take place on 26 April.

DEFRA announces a fast-tracked £180m investment to reduce sewage spills

Last week, the Environment Secretary announced an investment of £180m over the next 12 months to help prevent an estimated 8,000 sewage spills polluting English waterways.

When announcing this new funding, the Environment Secretary remarked that the amount of sewage spilt into English rivers is “completely unacceptable” and that this funding is designed to see investment in more “cutting-edge” technology and specialist staff to reduce spills.

The investment is to be divided between five different companies, in varying amounts, to introduce an array of new mechanisms to prevent pollution spills, including;

Thousands of additional sewer monitors to check flows and spot blockages earlier;
New AI solutions such as in the management of storm loading to automatically adjust water levels in storage tanks, and technology to analyse networks and direct proactive maintenance;
Recruitment drives for network technicians and early response teams, and;
Preventative maintenance and improvements to existing assets, such as optimising pumping stations.

With these improvements set to be implemented by April 2025, these measures are set to support the targets under the government’s Storm Overflows Discharge Reduction Plan. This Plan was first announced in August 2022 setting targets in respect of storm sewage discharges which requires companies to invest £56 billion in improving infrastructure within a 25 year timeframe in order to avoid substantial fines and refunds to customers where targets are not met.

The full list of funding and mechanisms introduced can be found here: Over £180m of investment fast-tracked to prevent sewage spills - GOV.UK (www.gov.uk).

Update on Nature Markets Framework and new measures to be launched

In 2023, the government released the Environmental Improvement Plan, which sets its approach to halt and reverse the decline of the natural environment. To reach the objectives in this plan, it was deemed necessary to introduce changes to the levels of investment, which was the main reason for introducing the government’s 2023 Green Finance Strategy. Alongside this strategy, the Nature Markets Framework was also published which sets out the government’s approach for scaling up private investment into nature’s recovery and sustainable farming.

This week, DEFRA released an update on the progress of the Nature Markets Framework for March 2024 (available here).

The update provides that significant actions were taken on the delivery of the Nature Markets Framework, which includes:

A third round of the Natural Environment Investment Readiness Fund focussed on helping farmers attract investment;
The development of pioneering nature investment standards to give confidence to those looking to buy or sell through nature markets;
Updates on Biodiversity Net Gain, Nutrient Mitigation, and the growth of the UK Woodland Carbon Code and UK Peatland Code;
Working internationally to set up the independent International Advisory Panel on Biodiversity Credits; and
Collaborations with convening partners and stakeholders to help develop nature markets policy.

According to this update, further measures will be revealed in the following months, including:

Consultation on Voluntary Carbon and Nature Markets.
Preparation of standards for biodiversity and natural carbon projects by the British Standards Institution (BSI). Consultation on this standard is scheduled for late Summer 2024.
Preparation of standard setting requirements for natural carbon benefits by BSI. Consultation on this standard is scheduled for Autumn 2024.
Consultation on the first iteration of the first standard: the Overarching Principles Standard “BSI Flex 701 v1.0 Nature Markets – Overarching principles and framework – Specification”
Preparation of guidance in collaboration with BSI regarding how the framework of standards for the supply of units is intended to operate, firming up how standards should be adopted and implemented, and how the framework will function.
Preparation of guidance in collaboration with the Farm Tenancy Forum regarding the management of ecosystem services on tenanted land and in showcasing best practice for approaching this within tenancy agreements.

Environmental Group Challenge the Environment Agency’s Reversal on Sludge Safety Tests

In a continuing environmental justice saga, a recent decision by the Environment Agency (“EA”) to retract a pivotal commitment has sparked significant legal action. Fighting Dirty, an environmental campaign group, spearheaded by notable figures including journalist George Monbiot, engineer and sustainability consultant Georgia Elliot-Smith and City to Sea’s policy manager Steve Hynd, is set to challenge the EA in the High Court.

The core of the contention of their contention lies in the EA’s reversal on its pledge to test sewage sludge for microplastics and harmful chemicals prior to its use as fertiliser on agricultural lands.

The case goes back to 2017 following an investigation by Greenpeace, which uncovered an EA report indicating that English crops were contaminated with dangerous Persistent Organic Pollutants (“POP’s”), such as dioxins, furans and polycyclic aromatic hydrocarbons. These contaminants at levels potentially hazardous to human health, underscored the urgent need for regulatory oversight.

Responding to these alarming findings the EA in 2020 unveiled a Strategy for Safe and Sustainable Sludge Use. This strategy explicitly rejected inaction as a viable approach, promising to usher in regulations by mid-2023 that would bring testing and regulation of sludge under the Environmental Permitting Regime (“EPR”). This move was aimed at ensuring the safe utilisation of sewage sludge in agriculture, thereby safeguarding public and environmental health.

However, in a turn of events the EA’s updated strategy document released in August 2023 omitted the previously established deadline without offering a new timeline for implementation. This omission signalled a regression to a stance of inaction, igniting widespread concern among environmentalists and the public alike.

Fighting Dirty’s challenge in the High Court against the EA will be heard on 9^th July at Royal Courts of Justice and is said to be a testament to the group’s commitment to hold the EA accountable. The campaign’s group leaders have voiced their dismay over the government’s failure to act on its commitments, highlighting the grave implications of spreading toxic substances on farmland without adequate regulation or oversight. 3.5 million tonnes of sludge are spread on UK agricultural land every year. George Monbiot stated, “Thousands of hectares of prime farmland are being contaminated every year with a cocktail of toxic chemicals, with scarcely any testing or documentation”.

With the UK’s agriculture sector relying heavily on the use of sludge as fertiliser – a practice that recycles 87% of the country’s sludge to agricultural land according to Water UK- the potential risks to soil quality, crop safety, and ultimately human health cannot be overstated.

The legal challenge being brought by Fighting Dirty not only challenges the EA’s decision making but also calls into question the broader regulatory framework governing the safe and sustainable use of sludge in agriculture. The outcome of this case could have far-reaching implications for environmental policy and practice in the UK, highlighting the urgent need for accountability and action in the face of environmental degradation.

DEFRA publishes response to consultation on Hedgerow protection

Back in June 2023, the government ran a 12-week consultation setting out their proposals in respect of hedgerow management, regulation and potential civil sanctions for non-compliance with the proposed new rules.

The purpose of the consultation was to seek the public’s views on current hedgerow regulation set out in the EU’s cross compliance framework to see if there was support to incorporate these into domestic legislation given that the UK is phasing out cross compliances rules given our departure from the EU.

The consultation received a total of 8,841 responses, of which the overall consensus across both farming and non-farming sectors were that hedgerows are a valuable and important resource that should be protected through regulation.

Following the consultation, the government has announced that English hedgerows will be protected in law with the Rural Payments Agency set to be the new regulatory body. However, further consultation is due to be published on the statutory guidance for regulation and suitable enforcement.

In summary, the new regulations will include:

2mm ‘buffer strip’ from the centre of hedgerows with no cultivation or application of fertilisers and pesticides, and
Hedge cutting ban between 1 March and 31 August each year to protect nesting birds.

These new regulations will sit alongside the existing Hedgerows Regulation of 1997 which prohibit the removal, in either whole or part, of hedgerows without first seeking approval from the Local Planning Authority.

The summary of responses can be accessed here: Summary of responses and government response - GOV.UK (www.gov.uk)

DEFRA publishes new guidance on packing responsibilities under the Extended Producer Responsibility regulations

Since 2023, the Extended Producer Responsibility (“EPR”) regulations were introduced, with the aim of incentivising producers to design packing that is easily recyclable by ensuing they are responsible for paying the full net cost of managing their packing once it becomes waste.

As part of these regulations, they set a requirement on all UK organisation to report on data in respect of the packaging they have supplied or imported within the UK market. Data reporting is required annually for smaller organisations and biannually for large organisations. This data collection requires categorisation of data into four different areas, one of which is the packaging type which requires a distinguishing between household and non-household packaging.

On 11 March 2024, DEFRA announced new guidance on defining household and non-household packaging under the regulations in order to assist organisations in their data categorisation and reporting. This guidance also outlines what evidence organisations are required to collect and report on in order to support their packaging categorisation.

This distinction is important for businesses, as they are required to pay a waste management fee to the Local Authority for all household waste.

These changes are due to take effect of 1 April 2024, but this will affect all organisations reporting requirements for 2024 as data collection will be influenced by both 2023 and 2024 guidance.

One example of the changes is that from 1 April 2024, straws should no longer be reported as it is not classed as packaging. However, the material used to package them, such as a cellophane wrapper, still needs to be reported as household packaging.

The new guidance can be found here: Extended producer responsibility for packaging: how to assess household and non-household packaging - GOV.UK (www.gov.uk)

New investment pledged by some water companies to help tackle sewage spills

The Environment Secretary has announced £180m in funding will be fast-tracked over the next 12 months to help prevent sewage spills in England. The funding has been pledged by five water companies. The government anticipate the fast-tracked investment will prevent more than 8,000 sewage spills.

This is in addition to the £3.1 billion investment to be provided by water companies between 2020 and 2025, and in addition to their annual investment plans.

The new funding is to come from the following water companies: Anglian, Severn Trent, Southern, United Utilities, and Wessex. The investments range from £50 million to £8 million and will cover a range of initiatives including additional sewer monitors, sewer maintenance, new technical staff, AI solutions, and a construction programme for wetlands.

Notably, Britain’s biggest water company is missing from the list, Thames Water. Thames Water’s financial difficulties have been widely reported and government contingency plans have been put in place in case the water company collapses.

This week’s government statement provides Northumbrian and Yorkshire Water have also recently announced additional investment this year to tackle storm overflows.

There were more than 300,000 sewage spills in England in 2022, an average of 824 a day. Environment Secretary, Steve Barclay has said of the fast-tracked investment:

“The amount of sewage being spilled into our rivers is completely unacceptable and the public rightly expects action. This £180 million of accelerated investment, which will stop more than 8,000 sewage spills over the next year, is a welcome step forward as we continue to push for better performance from water companies and hold them to account.”

ENVIRONMENTAL INSIGHT

Justification needed for higher than 10% thresholds for BNG

Alongside the long-awaited launch day for biodiversity net gain (BNG) last month, the government published new Planning Practice Guidance (PPG) advising local authorities against seeking a higher percentage of BNG.

The new PPG on BNG states: “Plan-makers should not seek a higher percentage than the statutory objective of 10% biodiversity net gain, either on an area-wide basis or for specific allocations for development unless justified.”

A number of local authorities in England already have proposed or adopted plans requiring more than 10% BNG.

However, in accordance with the PPG, such policies will need to be justified with evidence “as to local need for a higher percentage, local opportunities for a higher percentage and any impacts on viability for development. Consideration will also need to be given to how the policy will be implemented.”