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Environmental weekly news round up – 3 May 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. 


UK’s deposit return scheme faces further postponement

The government have confirmed the UK-wide deposit return scheme (DRS) is facing further delays and will not be rolled out until October 2027. The scheme seeks to cut litter by paying consumers a small amount to return bottles and cans. Once returned, the retailer can ensure the deposits are properly recycled. The schemes have been proven to increase recycling rates in other countries, and the UK government first proposed implementing a DRS as part of their 25 Year Environment Plan in 2018. 

However, it has faced constant delays since. When consulting on the scheme in 2021, the government said they were minded introducing it in England, Wales and Northern Ireland in 2023, but later delayed this until 2024 and then again until 2025. 

The current plan for implementation in 2027 is said to have been agreed by the UK government, Welsh Government, Scottish Government and DAERA. This is key to the workability of the scheme as the government seek to have it operate as seamlessly as possible across the whole of the UK, despite the responsibility for waste and recycling being a devolved competence in the UK. 

The government’s policy paper on the DRS says:

“There will be three legally distinct deposit return schemes in the UK: one in England and Northern Ireland; one in Wales; and one in Scotland. However, together, we are committed to delivering DRSs that are as interoperable and as simple as possible for consumers and businesses across the UK, whilst achieving the economic and environmental goals of the scheme.”

Yet Wales are still in disagreement on one point: the exclusion of glass from the DRS. The UK government’s proposed scheme will only include polyethylene terephthalate (PET) bottles, steel and aluminium cans as the inclusion of glass is said to create “undue complexities for the drinks industry” and increase costs for the retailers who operate the DRS. After being asked by the UK government, Scotland removed glass from its scheme, but Wales are yet to follow suit. 

Robbie Moore, on behalf of the Department for Environment, Food and Rural Affairs, has said:

“We will continue our conversations with Welsh Government, but if their position does not change, we will reiterate the duty to protect the UK internal market and facilitate free trade within the UK so businesses can continue trading unhindered across the UK and ensure better prices and choice for consumers, particularly in the context of the current cost-of-living pressures.” 


Enhancing Transparency: FCA’s proposed extension of anti-greenwashing rule and imminent implementation date

The Financial Conduct Authority has opened a consultation on extending their anti-greenwashing rule to portfolio managers. This would mean firms that help manage a group of investments for consumers would be captured by the rule. The consultation proposes that the requirements would be extended from 2 December 2024. 

This would follow the anti-greenwashing rule coming into force on 31 May 2024 for all FCA-authorised firms, and would apply to all communications with clients in the UK relating to a product, service or financial promotion. The rule aims to protect consumers against vague references to, for example, ‘sustainability’ or ‘ESG’, and should allow consumers to have more certainty over how their money is being used. 

A FCA survey found that 81% of adults would like their investments to do some good, as well as provide a financial return, highlighting how key it is that consumers are protected from misleading claims about the benefits of their investments. 

The FCA have also published new guidance to help the industry in meeting the required standard which sets out that information provided to consumers must be “fair, clear, and not misleading, and consistent with the sustainability profile of the product or service”. 

Sacha Sadan, Director of Environmental, Social and Governance at the FCA, has said of the new guidance and proposed extension to include portfolio managers: 

“Consumers care about investing in products that have a positive impact on the planet and people. That’s why we want to boost the integrity of the market and ensure people can make informed decisions with their money."


Environmental groups call out Luton Airport for misleading green claims 

Amidst growing environmental concerns, Luton Airport, trading as Luton Rising, has come under scrutiny from environmental groups in relation to its advertising strategies that are promoting its expansion from 18 million to 32 million passengers annually as being environmentally sound. 

The advertising campaign coincides with an international week of action against airline advertising, triggering environmental groups such as Adfree Cities, Badvertising, Possible, Stay Grounded and No Airport Expansion to challenge these claims with the UK’s Advertising Standards Authority (ASA).

The ads crafted by Hope advertising agency and displayed on various platforms like Facebook, billboards and in the New Statesman, assert that the airport adheres to the highest environmental standards in its expansion efforts. However, it is being claimed by the groups, that these advertisements notably omit significant details about the negative impacts of the proposed expansion for example the increase of 70,000 flights per year by 2043, which would escalate noise, carbon emissions, NOx pollutants and high-altitude contrails. Luton Rising’s adverts claim to enforce “environmental limits” set within its “Green Controlled Growth Framework”. Environmental groups claim that this framework conspicuously lacks any mention of emissions from flights, which currently constitutes over 80% of the airport’s environmental impact. 

This omission has fuelled accusations of greenwashing as it is claimed that the campaign paints a misleading picture of environmental responsibility without fully addressing the vast climate repercussions of the additional flights.

The timing of these adverts is also contentious, aligning with critical governmental decisions on the airport’s future including a key recommendation from the Planning Inspectorate expected on 10 May 2024. This has led to concerns about the potential influence these ads have on political decision making regarding the airport’s expansion. In response, the campaign groups have requested the ASA to suspend the adverts pending a thorough investigation.

Last year, similar greenwashing advertisements by oil company Equinor were banned by the ASA only after they potentially influenced policymakers ahead of approving Equinor’s significant new oil and gas field Rosebank. The current situation with Luton Rising’s adverts has reignited debates over the impact of misleading environmental claims in advertising on public and political opinion.

Local community groups like Luton And District Association for the Control of Aircraft Noise have also expressed disappointment with the expansion plans saying that the ongoing expansion will cause local pollution – both noise and air- and increased carbon emissions. 

The coalition of environmental groups has called for public support to file mass complaints to the ASA, aiming to prevent these greenwash adverts from misleading more people and potentially affecting crucial environmental decisions. They hope for a ruling from the ASA, emphasising the urgency in banning misleading airline advertising and implementing fair measures to reduce flight numbers.

If the allegations made against Luton Rising’s are upheld by the ASA and found to be misleading about the environmental impact of their expansion, they could be found to be in breach of the ASA’s guidelines on environmental claims. The ASA’s “Green Claims Code” provides a framework to ensure that all environmental assertions are clear, accurate and can be substantiated preventing companies from misleading consumers about the true environmental impact of their product or services. In such cases the ASA can take action which may include demanding the withdrawal of the advertising, issuing fines or providing public clarifications depending on the severity and nature of the breach.

As the debate unfolds the outcome of the ASA’s decision could set a significant precedent for how environmental claims are handled in advertising within the airline industry and beyond, highlighting the growing scrutiny of greenwashing in corporate communications.


Scottish Government taking steps to develop a Biodiversity Metric for Scotland’s Planning System

The Scottish Government has asked NatureScot, the lead public body responsible for advising Scottish Ministers on matters relating to natural heritage, to develop a Biodiversity Metric for Scotland’s planning system. 

With planning being a devolved matter, Scotland has yet to adopt a statutory Biodiversity Metric. This contrasts with the English planning system whereby a statutory Biodiversity Metric has been created to calculate the biodiversity of habitats in units at the development site pre and post development. This is required in order to comply with the requirements under the Environment Act 2021 which stipulates planning permission cannot be granted on most developments unless it can show that the development will provide at least a 10% uplift in the biodiversity value of the site. 

At present in Scotland, the requirement under Policy 3(b) of Scotland’s fourth National Planning Framework (“NPF4”) is for all national, major and EIA development to include significant biodiversity enhancements” that leave nature in a “demonstrably better state than without intervention”. However, the NPF4 does not specify a particular approach for demonstrating biodiversity enhancement other than requiring best practice methods to be used. 

NatureScot therefore has a consultation open until 10 May 2024 with the aim establishing a universal Scottish Biodiversity Metric to ensure consistency in outputs and decision making. The consultation has identified key issues with the English statutory Metric that they are specifically seeking views on with the aim of, “adapting England’s statutory biodiversity metric to better reflect Scotland’s different legislative, policy and environmental context.” 

One of the areas they are seeking differentiation on is the type of habitat used in the Biodiversity Metric. 

The English statutory Metric currently does not include irreplaceable habitats (such as woodlands and veteran trees). Lord Zac Goldsmith, the Environment Minister in the House of Lord at the time, articulated the reasoning behind this as, “ancient woodland is irreplaceable so it cannot meaningfully or realistically be compensated for by net gain.” Whereas Scotland is considering including this in their metric following a Scottish government-commissioned research report by Scotland Rural College (SRUC) in September 2023 which concluded that all irreplaceable habits should be recognised in a Scottish metric. 


The plastic dilemma: International negotiations for the global plastics treaty take shape in Ottawa 

In the latest of a series of meetings for creation of the global plastic treaty, a crucial meeting held in Ottawa Canada between 23rd and 29th April had international negotiators grappling with the pressing issue of plastic pollution. Unfortunately, despite the meeting ending with a commitment to focus on reducing harmful chemicals produced by plastic and making plastic products easier to recycle there were unresolved key issues, including whether the production of new plastics should be halted. The pressure is now on to resolve these outstanding key issues for the final round of meetings due to take place in Busan, South Korean later on this year.

The meetings are part of a series of meetings being conducted by the Intergovernmental Negotiating Committee (“INC”) under the auspices of the United Nations Environment Programme (UNEP) and aim to establish a comprehensive legally binding international framework to address the pervasive issue of plastic pollution. The production of plastic, which is made primarily from fossil fuels and chemicals has doubled in the past two decades, from 200 million tonnes in 2000 to 400 million tonnes in 2019. The equivalent of 2000 garbage trucks full of plastics are dumped into the world’s rivers, oceans, and lakes every day according to UNEP. It directly affects millions of people’s livelihoods and food production capabilities.

As referred to above central to the Ottawa meeting was whether the treaty should mandate limits on plastic production – a proposal that met with resistance from major plastic producing nations. Without there being a cap placed on the production of plastic experts like Lisa Gue from the David Suzuki Foundation argued that the treaty’s effectiveness could be compromised. The Chemistry Industry Association of Canada echoed a sector-wide sentiment favouring an approach that maintains the utility of plastics while mitigating environmental impact. 

There is no doubt that bringing to a halt the production of plastics and finding alternatives presents a significant challenge for several reasons:

  • Plastics are used in a wide range of industries including packaging, construction, healthcare, and electronics making them an integral part of the economy. From an economic perspective, transitioning away from plastics would require substantial investment and reconfiguration of these established economic structures. 
  • Currently there are few materials that can match the unique properties of plastics such as their lightweight flexibility and resistance to water and corrosion. Developing alternatives that can perform as well as plastics in a diverse array of applications is a major technical challenge.
  • Bioplastics or materials derived from natural substances like plant fibres often have limitations in terms of scalability, performance or environmental impact.
  • The infrastructure for recycling plastics is underdeveloped in many parts of the world and the economics of recycling are often unfavourable compared to producing new plastics.
  • Developing and implementing regulations that can effectively reduce plastic production and encourage the use of alternatives is complex.
  • Industries typically resist regulations that could impose additional costs on them or limit their markets. In the case of plastics, the fossil fuel industry along with chemical and plastics manufacturers are likely to oppose strict regulations that would require significant reductions in plastic production.

The transitioning away from plastics to more sustainable alternatives requires a multifaceted approach including technological innovation, economic incentives, regulatory frameworks and public awareness campaigns and it is difficult to predict whether a resolution will be reached on this key issue at the meeting at Busan.

Amid the debates there was however a consensus on enhancing the recyclability of plastics and reducing harmful chemicals which is viewed as foundational to transitioning towards a more sustainable and circular plastic economy. In addition, there was a growing recognition of the need for extended producer responsibility schemes to manage lifecycle of plastic products, particularly emerging economies. Environmental groups emphasised the necessity of a treaty that addresses the entire life cycle of plastics, not just waste management. Zero Waste Europe highlighted the efforts by nations like Peru and Rwanda to push for comprehensive measures though these faced push back from some quarters. 

Inger Anderson, UNEP’s Executive Director, stressed the progress that had been made on drafting treaty text and the setting up of expert groups to refine these strategies ahead of the Busan meeting. 

The upcoming talks in Busan will be crucial.


UK set to ban wet wipes containing plastics

On 22 April 2024, the UK government announced they would introduce new laws to ban the supply and sale of wet wipes containing plastic across the UK. 

The government anticipate the legislation to be in place across the UK by the end of 2024 with an 18-month transition period included to allow manufactures adequate time to transition into new plastic free production. 

As part of the announcement, the Environment Secretary commented, “wet wipes containing plastics are polluting our waterways and causing microplastics to enter the environment” and that this legislation will follow “a raft of action already taken to protect our waterways and hold water companies accountable.”

This decision follows the six-week consultation launched by the Government back in October 2023 on the proposed ban on the manufacture, sale and supply of wet wipes containing plastic. The results of which have now been published, found that 95% of public consultees were in favour of the new ban, in contrast to 60% of businesses who disagreed. 

There are a few exemptions where the sale of wet wipes containing plastic will continue to be permitted in the UK, such as for medical disinfectant purposes, and manufactures in the UK will continue to be permitted to export plastic containing wet wipes to other countries who do not have the same restrictions. 


Deadlines for the majority of environmental improvement actions issued to farmers by the EA are missed as found in FOI data

Environment improvements actions are set by the Environment Agency (“EA”) following a site inspection which has identified breaches of regulations, such as the Farming Rules for Water and Storage of Silage, or Slurry and Fuel Oil Regulations. The purpose of these improvement actions is to rectify the breach and prevent any future non-compliance and likely subsequent harm to the environment. 

Between January 2020 – January 2024, it was found that 14,146 improvement actions were issued by the EA to farmers, of which 61% were not completed to the agreed timescales. Of the actions not completed on time, 48% of these were completed after the deadline and 32% are still classed as “overdue”. 

The highest proportion of improvements actions that were either completed late or overdue, totalling over 50%, were related to issues that impacted water quality, such as clean/dirty water separation and the number of slurry stores. 

Despite the number of deadlines missed, publicly available data from the EA’s enforcement data shows that only 23 prosecutions were recorded in the agriculture industry over the same four-year period. 

Charles Watson, chief executive of River Action, commented that, “the UK’s system of regulating agriculture has failed” and will continue to do so without the deterrent of “real penalties.”

Martin Lines, arable farmer, farming contractor and the chief executive of the Nature Friendly Farming Network (NFFN) commented that although the number of missed deadlines was “disappointing” and farmers need to better acknowledge their role in pollution, the role of large food corporations also needs to be scrutinised for driving the pressures in the sector that cause pollution. Further, that there would need to be “significant investment” from both government and the private sector to see a reduction in farm pollution.