Moving away from the ‘take-make-use-dispose’ mentality

Despite significant delays to its progress, the Environment Act 2021 is now law. It is an incredibly wide-ranging piece of legislation, not only in its volume – it is almost 300 pages in length – but also has implications far broader than its name may suggest.

Prior to Brexit, it is estimated that around 80% of the UK’s environmental legislation was derived from the EU, with monitoring largely being undertaken through the latter’s organs of state, such as the European Commission and ECJ. Likewise, the EU Treaties provided a general framework for environmental governance and objectives to be achieved by Member States.

As the UK is no longer a member state of the EU following Brexit, it falls outside that environmental policy framework and as such it was considered necessary to introduce objectives to work towards and to help continue the protection of the natural environment.

The Environment Act seeks to address this potential shortfall and places the UK Government’s 25 Year Environmental Plan on a statutory footing.

In addressing the perceived environmental gap following Brexit, the act is organised into two halves: a legal framework for environmental governance; and specific provisions for the environment, split into eight discrete parts, including provisions relating to environmental protection, waste efficiency, air and water quality and even the regulation of chemicals.

The environmental governance provisions within the act include a requirement on the Secretary of State to produce an Environmental Improvement Plan detailing the steps the government intends to take to significantly improve the natural environment and to improve people’s enjoyment of it. The environmental governance provisions also include provision for the Secretary of State to create long-term (being no less than 15 year) targets for the natural environment, in relation to matters including reductions in particulate matter and species abundance.

Additionally, the Environment Act 2021 establishes the Office for Environmental Protection (‘OEP’) to contribute to environmental protection by monitoring, advising and holding the government and public bodies to account.

The specific provisions relating to discrete aspects of the environment are equally expansive and, certainly those relating to waste and resource efficiency, are likely to have material and significant implications on the majority of businesses going forwards.

Waste and resource efficiency

In summary, the act represents an attempt to move away from the current take-make-use-dispose mentality towards an increase in reuse and recycling. That being said, whilst the act is extensive and provides a framework for environmental protection, it is lacking in detail and defers specifics to future regulations and statutory instruments.

For example, the ‘polluter pays’ principle is the generally accepted contention that those who produce pollution should bear the costs of its safe disposal and any environmental damage caused by it. The Environment Act extends this principle and makes provisions which would impose on the producer of materials or products the full net costs of managing these items at the point of disposal, which is defined so as to include disposal through re-use, recycling, recovery and redistribution.


Bill Dunkerley, Pannone Corporate
Bill Dunkerley, Pannone Corporate

However, the act goes further and includes within the definition of ‘disposal costs’ those costs incurred in the collection and transportation of goods, sorting and treatment and even those costs incurred in providing public information about the disposal of the products or materials. In other words, these provisions will effectively shift the costs of disposal from the consumer back to the ‘polluter.’

Schedule 4 to the act also makes provision to impose producer responsibility obligations on, ‘specified persons’, for the purposes of:

  • Preventing a product or material becoming waste, or reducing the amount of a product or material that becomes waste; and
  • Sustaining a minimum level of, or promoting or securing an increase in, the reuse, redistribution, recovery or recycling of products or materials

Depending on the scope and extent of future regulations, this provision could have a seismic impact on those businesses which produce packaging, even in respect of those materials which are not considered to be harmful to the environment, such as cardboard and paper packaging.

Why does the government want to extend the polluter pays principle? The aim essentially is to encourage the production of items which can be sustained for longer and at a lower cost. By imposing additional obligations on producers to reuse, redistribute and recycle their products and packaging, this may incentivise them to design products with these objectives in mind, and therefore result in products that last longer, which can be reused and repaired more easily, and ultimately recycled at the end of their life and therefore reduce the harvesting of resources from the natural environment.

Sustainability and resource efficiency information

Schedule 6 to the Act states:

‘The relevant national authority may by regulations make provision for the purposes of requiring specified persons, in specified circumstances, to provide specified information about the resource efficiency of specified products.’

Whilst on first blush this appears to be so wide-ranging as to be potentially meaningless, further detail within the act indicates that the ‘specified information’ may include information relating to a product’s expected life, whether it can be upgraded, and the costs associated with this. It may also extend to include information relating to the materials from which the product is manufactured; the techniques used in its manufacture; the resources consumed during its production or use; as well as the pollutants released or emitted at any stage of the product’s production, use or disposal.

The act lays the groundwork for this information to be provided by anyone connected with the manufacture, import, distribution, sale or supply of products. This is incredibly wide-ranging and would serve to impose obligations on everyone within the supply chain with the possible exception of the end consumer.

Reduction of plastic waste

The act is another tool in the government’s ‘war on plastic’ and its desire to avoid all avoidable waste by 2042. Following the successful introduction of the plastic carrier bag charge, the act makes provision for similar charges for other single use plastic items, as part of an overarching objective to incentivise consumers to use more sustainable items. Schedule 8 introduces provision to introduce deposit return schemes to either sustain, promote or secure an increase in the recycling and reuse of materials.

Conclusion

The Environment Act 2021 provides a framework for the current and future governments to introduce measures which will affect products at potentially every stage of their lifecycle and proposes to significantly increase the information which is provided to consumers regarding the environmental impact of the goods they purchase.

Although the detail has been left for future regulations, which themselves may not be introduced for many months – if not years – the groundwork is now in place, and the information which is currently available within the Act clearly indicates that businesses will have to be far more proactive in asserting their environmental credentials and actively demonstrating the steps they are taking to protect the natural environment.

The Environment Act 2021 puts businesses on notice of the scope and extent of future environmental regulations and statutory instruments likely to be introduced, and therefore it is recommended that in light of this roadmap, organisations start planning now as to how they will respond on an operational level to such changes once introduced.

Bill Dunkerley is a regulatory lawyer and Director at Pannone Corporate.