What to expect in 2012: environment

Practical Law UK Legal Update 0-517-0167 (Approx. 21 pages)

What to expect in 2012: environment

by PLC Environment

Civil sanctions

Civil sanctions for Natural England

Natural England (NE) can use civil sanctions under the Regulatory Enforcement and Sanctions Act 2008 (RESA 2008) for certain offences from 3 January 2012. NE already had certain specialist civil sanctioning powers under the Environmental Damage (Prevention and Remediation) Regulations 2009 (SI 2009/153), rather than under the RESA 2008. NE's new civil sanctions powers apply to additional offences, including those relating to:

Sites of Special Scientific Interest (SSSIs) (see Practice note, Habitats and wildlife: designations in England and Wales: Site of Special Scientific Interest).
Complaints relating to injurious weeds.
Breaches of species licences issued under the Wildlife and Countryside Act 1981, the Destructive Imported Animals Act 1932, the Protection of Badgers Act 1992 and the Deer Act 1991.

For more information, see Legal update, Natural England introduces civil sanctions and updates enforcement guidance.

Civil sanctions for the Environmental Permitting (EP) regime

For more information, see Civil sanctions for EP offences below.

Conservation, habitats and wildlife

Review of implementation of Habitats and Birds Directives

In the 2011 Autumn Statement, the government announced that it intended, by the 2012 Budget (which will be announced on 21 March 2012), to review implementation in England of the Habitats Directive and the Birds Directive (Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora and Directive 2009/147/EC on the conservation of wild birds). In particular, it wishes to ensure that compliance with the Habitats and Birds Directives does not lead to unnecessary costs and delays to development, while continuing to support the Directives’ objectives, and is committed to tackling blockages for developments where compliance is particularly complex or has large impacts (see Legal update, 2011 Autumn Statement: environmental implications: Compliance with Habitats and Birds Directives).

For more information, see Practice note, Habitats and wildlife: overview.

Natural Environment White Paper

In June 2011, Defra published its Natural Environment White Paper, which outlines the government's vision for the natural environment for the next 50 years (see Legal update, Defra publishes Natural Environment White Paper). The White Paper includes the following key measures for 2012:

Green areas designation. A new designation will be introduced by April 2012. This will give local people an opportunity to protect green spaces that have significant importance to their local communities.
Biodiversity offsetting. Biodiversity offsetting enables a developer to impair the habitat value of a site, provided it pays to restore another habitat site that has the potential to become at least the same quality as the habitat that will be lost. A new, voluntary approach to biodiversity offsetting will be established and tested by local authorities in pilot areas, for two years starting in spring 2012.
Water footprinting. The government will develop an agreed approach to water footprinting by December 2012.
Environmental stewardship. The government will publish an action plan in 2012 to expand schemes in which the provider of nature’s services is paid by the beneficiaries.
The government will also develop a set of key indicators by spring 2012 to track progress on the White Paper.

Contaminated land

For information on the contaminated land regime under Part 2A of the Environmental Protection Act 1990, see Practice note, Contaminated land regime: summary.

Revisions to contaminated land regime guidance

In December 2010, Defra and the Welsh Government (WG) consulted on:

Revisions to the statutory guidance on the contaminated land regime.
Minor amendments to the Contaminated Land (England) Regulations 2006 (SI 2006/1380) and the Contaminated Land (Wales) Regulations 2006 (SI 2006/2989 W.278)

(See Legal update, Government consults on changes to contaminated land statutory guidance.)

The government response to the consultation was expected in 2011 but has been delayed.

Water pollution

The government intends finally to bring section 86 of the Water Act 2003 into force when it publishes the revised contaminated land statutory guidance (see Legal update, Government consults on changes to contaminated land statutory guidance). This section amends the second limb of the definition of contaminated land so that, where land is contaminated by virtue of the state of controlled waters, Part 2A will only apply where significant pollution of controlled waters is being caused or there is a significant possibility of such pollution being caused. (Currently, Part 2A applies if pollution of controlled waters is being or is likely to be caused.)

CRC Energy Efficiency Scheme (CRC)

In June 2011, the government outlined the main changes it plans to make to the CRC from Phase 2 (1 April 2013 to 31 March 2019) onwards (see Legal update, CRC: Government outlines detailed proposals to simplify the scheme).

The key dates in 2012 for further developments on proposed changes to the CRC are:

February to April 2012. The government will consult on draft legislation to give effect to the changes it announced in June 2011.
September 2012. The government will publish responses to the consultation on draft legislation and the Environment Agency will publish updated guidance on qualification, registration, supply and organisational rules to reflect the changes made to the CRC.
December 2012. The Environment Agency will publish remaining guidance on the revised CRC.

For more information on the CRC, see CRC Survival Kit.

Duty on companies to report on environmental matters

Reporting on greenhouse gas emissions

The Climate Change Act 2008 requires the government, by 6 April 2012, to make regulations requiring directors' reports to contain certain specified information about greenhouse gas (GHG) emissions, or lay a report before Parliament explaining why no such regulations have been made. Section 416(4) of the Companies Act 2006 provides a power to make such regulations requiring disclosure of such other matters in the directors’ report.

In May 2011, the Department for Environment, Food and Rural Affairs (Defra) consulted on whether to introduce mandatory GHG reporting for some UK companies (see Legal update, Defra consults on options for mandatory GHG emissions reporting for UK companies). The response to the consultation was expected by the end of 2011, but has not yet been published.

Reporting on environmental matters

In addition, the following developments are relevant to how companies have to report on environmental matters more widely, not just on their GHG emissions:

Defra announced, in its Natural Environment White Paper, published in June 2011, that by 2012, the government would publish new guidance for businesses on how to measure and report their corporate environmental impacts (see Legal update, Defra publishes Natural Environment White Paper and Natural Environment White Paper below).
In 2010 and 2011, the Department for Business, Innovation and Skills (BIS) consulted on the future of narrative reporting (see Legal updates, Narrative reporting: BIS consultation and Narrative reporting: 2011 BIS consultation on a new framework: environmental implications. The government is expected to publish new guidance for businesses on how to measure and report their corporate environmental impacts during 2012.
The European Commission (Commission) consulted in 2010 on ways to improve company disclosure of non-financial information, such as that relating to employees and the environment (see Legal update, Narrative reporting: European Commission consultation). The Commission is expected to publish a proposal in the first half of 2012.

For more information on how companies report on environmental issues in general, see Practice note, Environmental reporting for companies: mandatory.

Energy and climate change

Carbon capture and storage

In October 2011, the government announced that it would not be providing funding for Scottish Power's CCS project at Longannet, following the breakdown of negotiations (see Legal update, Carbon capture and storage: government announces Longannet pilot will not receive funding). This was the last project remaining in the government's competition for funding for CCS pilot projects, which therefore currently has no contenders (see Practice note, Carbon capture and storage: overview: UK demonstration plants).

The government was due to publish a CCS Roadmap later in 2011 but this has not yet been published. It also expects to launch a new competition for CCS demonstration plants in due course.

Carbon Emissions Reduction Target

The Carbon Emissions Reduction Target (CERT) will come to an end on 31 December 2012, when it will be replaced by the Energy Company Obligation (ECO). The ECO is a new obligation on energy companies to meet specific carbon savings targets, which will require them to invest in energy saving measures in homes. It will work alongside the Green Deal. For more information, see Practice note, CERT and ECO: Carbon Emissions Reduction Target and Energy Company Obligation).

Climate change agreements

As well as the proposed changes to the climate change levy (CCL) as part of the Electricity Market Reform (see Electricity Market Reform (EMR) below), the government is introducing further reform to climate change agreements (CCAs), in the extended CCA scheme (2013-2023). In September 2011, DECC consulted on the form that the extended CCA scheme would take. The consultation drew together the government's proposals from the previous consultations, and also included some new proposals (see Legal update, Fourth government consultation on climate change agreements). Its proposals seek to simplify the CCA scheme and reduce the overlap with other climate change policies, in particular the EU Emissions Trading Scheme (EU ETS) and CRC. In December 2011, the government published draft legislation to implement reform of CCAs for consultation (see Legal update, Consultation on draft Finance Bill 2012 legislation: key environmental measures). The consultation closes on 10 February 2012.

For more information on CCAs and the CCL in general, see Practice note, Climate change levy and climate change agreements.

Electricity Market Reform (EMR)

In July 2011, DECC published its Electricity Market Reform (EMR) White Paper, which sets out the government's decisions on reforms to decarbonise electricity in the UK (see Legal update, Government publishes Electricity Market Reform White Paper 2011: environmental implications).

In December 2011, DECC announced that, in spring 2012, it would:

Introduce primary legislation, which DECC intends will be enacted by spring 2013.
Publish an EMR policy document, to include:
- an update on the overall EMR framework and how it fits with the wider policy context;
- a high level overview of each element of the EMR; and
- detailed plans for transition and implementation.
(See Legal update, DECC technical update to Electricity Market Reform White Paper.)

More information on next steps for the individual EMR proposals is set out below.

Carbon price floor

A carbon price floor will be introduced, on 1 April 2013, by extending the CCL or fuel duty (as applicable) to all fossil fuels used in most forms of electricity generation in the UK. The Finance Act 2011 contains the primary legislative powers to introduce a carbon price floor. The government consulted on further provisions for the carbon price floor in proposed legislation for the Finance Bill 2012 and proposed secondary legislation in December 2011 (see Legal update, Consultation on draft Finance Bill 2012 legislation: key environmental measures).

The government announced, in its Autumn Statement 2011, that it will provide compensation of up to £100 million to key electricity-intensive industries that operate in internationally-competitive markets, to help offset the indirect cost of the carbon price floor, from April 2013 until 2014-15 (see Legal update, 2011 Autumn Statement: environmental implications).

For more information on the CCL, see Practice note, Climate change levy and climate change agreements.

Feed-in tariffs with contracts for difference

Under feed-in tariffs with contracts for difference (FITs CfDs), a low-carbon electricity generator will receive a top-up payment when it sells electricity for less than the agreed contract price, but will make a repayment when it sells electricity for more than the agreed contract price. In December 2011, DECC published a technical update to the EMR White Paper, setting outfurther details of the institutional framework for FITs CfDs, including the following timeline:

In early 2012, DECC will issue further technical details on FITs CfDs, including details of the payment model and key terms. This will lead to secondary legislation.
In spring 2012, the government will introduce primary legislation and DECC will publish an EMR policy document, including detail on the role of National Grid (as the system operator) and the role of the devolved administrations.
DECC aims to publish the first delivery plan in 2013.

(See Legal update, DECC technical update to Electricity Market Reform White Paper.)

Emissions performance standard

The emissions performance standard (EPS) would impose an annual limit on new fossil fuel power stations that is equivalent to 450g carbon dioxide per kilowatt hour (CO2/kWh) at baseload, from 1 April 2013. In its technical update to the EMR White Paper, published in December 2011, DECC announced that there would be an update on the technical details of the EMR early in 2012 (see Legal update, DECC technical update to Electricity Market Reform White Paper).

Energy Efficiency Directive (draft)

In June 2011, the Commission published a draft Directive on energy efficiency, which contains measures to increase EU energy efficiency that include obligations on:

Member states, to establish energy saving schemes.
The public sector, to renovate buildings to increase energy efficiency and to buy energy efficient goods and services.
Industry, to undertake energy audits.
Energy companies, to develop the application of high-efficiency cogeneration (also known as combined heat and power (CHP)) and efficient district heating and cooling.

The draft Directive is being debated by the European Parliament and Council. For more information, see:

Feed-in tariffs

In October 2011, DECC published a consultation on feed-in tariffs (FITs) for smaller scale solar PV energy generation (see Legal update, FITs consultation proposes reduced support for smaller solar PV generation). This was phase 1 of a two-part consultation on the comprehensive review of FITs that was announced in February 2011. The consultation closed on 23 December 2011 and proposed:

Lower rates of generation tariffs from 1 April 2012 for all new solar PV installations of less than 250 kilowatts, with an eligibility date on or after 12 December 2011.
New multi-installation tariff rates for aggregated solar PV schemes set at 80% of the proposed standard tariffs for individual installations.
A new energy efficiency requirement for a building where the owner or occupier applies for FITs support for a solar PV installation.

On 21 December 2011, the Administrative Court decided that DECC's proposal to cut FITs on 12 December 2011, 11 days before its consultation on that proposal closed, was unlawful because it breached the statutory scheme for modifying FITs. DECC has indicated it will appeal this decision (see Legal update, FITs: JR challenge to solar PV cuts succeeds).

DECC announced, in early December 2011, that phase 2 of the consultation on the comprehensive review would be launched by the end of 2011, and that the proposed changes would be implemented in the first half of 2012 (see Legal update, FITs: High Court rejects legal action over cuts to FITs for solar PV and DECC announces phase 2 review timing). Phase 2 of the consultation has not yet been published.

For more information on FITs in general, see Practice note, Feed-in tariffs (FITs): toolkit.

Green Deal

The Green Deal is the government's flagship initiative for improving the energy efficiency of buildings in England. It will enable occupiers of domestic and non-domestic premises, and private sector landlords, to receive finance from accredited providers for energy efficiency improvements, which will be paid for by energy bill savings. Chapter 1 of Part 1 of the Energy Act 2011 contains powers and provisions for setting up the Green Deal framework (see Legal update, Energy Act 2011: environmental implications).

In November 2011, DECC launched a consultation on the details of the Green Deal and the Energy Company Obligation (ECO) (a target for reducing home-heating costs in vulnerable and low income households) (see Legal update, DECC consults on Green Deal and ECO.)

The next steps for introduction of the Green Deal are:

Spring 2012. Secondary legislation laid before Parliament.
Autumn 2012. First Green Deals appear.

For more information on the:

Green Deal, see Practice note, The Green Deal.
ECO, see Practice note, CERT and ECO: Carbon Emissions Reduction Target and Energy Company Obligation .

Nuclear

For information on the government's proposals for new nuclear power stations, see Practice note, Proposals for new nuclear power stations.

Indicative timeline

In October 2011, the Office for Nuclear Development (OND) published an updated indicative timeline for the development of new nuclear power stations (see Legal update, Government updates indicative timeline for new nuclear power stations).

Developers are required to submit the first Funded Decommissioning Programmes (FDPs) for each new power station at the start of 2012.

Review of Fukushima accident and implications for the UK nuclear industry

In March 2011, the government commissioned a report from Dr Mike Weightman (Her Majesty's Chief Inspector of Nuclear Installations and executive head of the Office for Nuclear Regulation (ONR)) on the implications of the nuclear accident at the Fukushima nuclear power station for the nuclear industry in the UK. Dr Weightman published his final report in October 2011 (see Practice note, Proposals for new nuclear power stations: Nuclear safety review following incident in Japan).

By June 2012, progress reports on responding to the recommendations in the report should be available.

EU stress tests

In March 2011, in response to the Fukushima nuclear accident, EU energy ministers and nuclear experts decided to introduce "stress tests" for Europe's 195 nuclear power plants. In November 2011, the Commission published a Communication on the interim report on stress tests (see Legal update, Nuclear stress tests: European Commission publishes Communication on interim report). The Commission will present a final report in June 2012, together with possible legislative initiatives.

Greenpeace judicial review

In August 2011, Greenpeace announced that it had applied for judicial review of the government's plans for new nuclear power stations in England and Wales (see Legal update, Greenpeace applies for judicial review of government's plans for new nuclear). Greenpeace claimed that the government has unlawfully failed to take into account the implications of Japan's Fukushima nuclear disaster in its future planning of new nuclear power stations.

Renewable Heat Incentive

The Renewable Heat Incentive (RHI) opened to non-domestic systems in November 2011 (Phase 1). For domestic systems:

An interim scheme, the Renewable Heat Premium Payment (RHPP), runs from August 2011 to March 2012.
The RHI is expected to be available from October 2012 (DECC has indicated that it will announce the exact timing early in 2012). This is Phase 2 of the RHI, which will also introduce support for some other technologies and fuel uses not covered in Phase 1.

For more information on the RHI, see Practice note, Renewable Heat Incentive (RHI).

Renewables Obligation

In October 2011, DECC launched a consultation on the Renewables Obligation (RO) banding review, for the period 1 April 2013 to 31 March 2017 (see Legal updates, DECC consults on Renewables Obligation Banding Review and DECC publishes draft order for Renewables Obligation Banding Review consultation). DECC is seeking to set RO support for the cheapest technologies at a level that will ensure high deployment, in order to minimise the amount of generation needed from the more expensive technologies. The consultation closes on 12 January 2012, and DECC is due to publish a response to the consultation in spring 2012.

For more information on the RO in general, see Practice note, Renewables Obligation.

UK Green Investments and Green Investment Bank

The government announced, in the 2011 Autumn Statement, that it will invest, as UK Green Investments (UKGI), in green infrastructure projects from April 2012, in advance of obtaining state aid approval from the European Commission for the Green Investment Bank (GIB) (see Legal updates, 2011 Autumn Statement: environmental implications: UK Green Investments and Green Investment Bank and Green Investment Bank to begin investing from April 2012). Non-domestic energy efficiency will be one of the priority sectors for UKGI, which will make up to £100 million available in the next financial year for commercial and industrial energy efficiency projects. Once the Commission has approved the GIB, legislation will be introduced to establish the GIB as an independent institution.

UNFCCC conference on international climate change agreement

The seventeenth United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties (COP17) and the seventh Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol (CMP7) were held in Durban, South Africa, from 28 November to 11 December 2011. COP17 discussed the future of the Kyoto Protocol and the need to reach an international agreement on climate change that would take effect following the end of the first commitment period under the Kyoto Protocol in 2012. The talks resulted in:

An agreement on a roadmap to a universal legal agreement on climate change by 2015.
Agreement that the second commitment period of Kyoto Protocol will be agreed in 2012.
The launch and implementation of the Green Climate Fund, which will help deliver financial support to developing countries to reduce GHG emissions and adapt to the effects of climate change.

(See Legal update, International climate change negotiations: outcome of Durban Conference ).

The international community will continue to meet during 2012, in preparation for COP18 and CMP8, due to be held from 26 November to 7 December 2012 in Qatar, in cooperation with the government of South Korea.

For more information, see:

Environmental impact assessment

In April 2011, the Commission published a proposal to consolidate (codify) the EIA Directive (Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment). The proposal is being debated by the European Parliament and Council. For more information, see:

Environmental Permitting regime

For information on the Environmental Permitting (EP) regime, see Practice note, Environmental Permitting regime.

Civil sanctions for EP offences

In summer 2010, Defra consulted on draft Environmental Permitting (England and Wales) (Amendment) Regulations 2011 (the civil sanctions consultation), which proposed to introduce civil sanctions under the Regulatory Enforcement and Sanctions Act 2008 (RESA 2008) for enforcing the EP regime (see Legal update, Defra consults on Environmental Permitting regulations, including proposals for civil sanctions). For more information on RESA 2008, see Practice note, Regulatory Enforcement and Sanctions Act 2008: civil sanctions).

In August 2011, Defra published a summary of the responses to its civil sanctions consultation (see Legal update, Environmental permitting: government responds to consultations on civil sanctions, CCS and anaerobic digestion). In particular, the government response made it clear that it still intends to introduce civil sanctions for enforcing the EP regime. Defra intended to lay the regulations introducing civil sanctions in autumn 2011 and for them to come into force on 6 April 2012. However, it has not yet laid the regulations before Parliament.

Implementing the Industrial Emissions Directive

The Industrial Emissions Directive came into force on 6 January 2011 (Directive 2010/75/EU on industrial emissions (Recast)). Member states must implement the Directive into national law by 7 January 2013. Defra is considering how to transpose the Directive into UK law. This will involve further changes to the EP regime, which will probably require consultation during 2012.

For more information on the Directive, see Practice note, EU Industrial Emissions Directive 2010.

Carbon capture and storage (CCS) and anaerobic digestion (AD)

In September 2010, the government launched a consultation (CCS and AD consultation) on further changes to the EP regime to:

Implement certain provisions of the Carbon Capture and Storage Directive (Directive 2009/31/EC on the geological storage of carbon dioxide).
Prevent double regulation of certain offshore CCS installations in the territorial sea.
Reduce the regulation requirements for AD plants that only produce gas which is transported for use as a fuel off-site (rather than being burnt at the plant).

In August 2011, the government confirmed that it would make those changes, but it has not yet laid regulations. For more information, see Legal updates, Defra consults on carbon capture and storage and anaerobic digestion under the environmental permitting regime and Environmental permitting: government responds to consultations on civil sanctions, CCS and anaerobic digestion).

Further regimes to be included

Defra is planning to extend the EP regime to water abstraction and impoundment (see Water White Paper below).

Miscellaneous other changes

As part of its civil sanctions consultation (see Civil sanctions above), the government proposed a number of miscellaneous changes to certain administrative procedures and technical details relating to environmental permits and exempt waste operations (see Legal update, Environmental permitting: government responds to consultations on civil sanctions, CCS and anaerobic digestion). The government has not yet laid regulations to give effect to those changes.

Environmental taxation

In April 2011, the Commission published a proposal for a revision of the existing Energy Taxation Directive, primarily to align energy taxation in the EU with the EU's commitments on climate change. Currently, minimum rates of tax on energy products (that is, products used for heating, electricity and motor fuel) are based on volume. The main change proposed is to divide energy tax into:

A tax on the energy content, applying to all fuel used for transport and heating.
A tax on the carbon dioxide (CO2) content, applying to sectors outside the EU Emissions Trading Scheme. Renewable energy sources would not be subject to the CO2 component.

The energy content and CO2 content taxes would be combined to produce the overall minimum rate at which an energy product is taxed. The draft Directive is being debated by the European Parliament and the Council.

For more information, see:

Equator Principles

From 1 January 2012, new International Finance Corporation (IFC) Performance Standards (which increase requirements on environmental issues, climate change, social issues and human rights) will replace the 2006 IFC Performance Standards in Exhibit III to the Equator Principles (EPs) (see Legal update, Equator Principles Association announces new performance standards).

Separately, in March 2012, the Equator Principles Association will launch the third version of the EPs (EP III) (see Legal update, Equator Principles Association announces timetable for new version of Equator Principles).

For more information on the Equator Principles, see Practice note, The Equator Principles.

EU Emissions Trading Scheme

Aviation

Aviation GHG emissions are included in the EU ETS from 1 January 2012 (see Practice note, EU Emissions Trading Scheme (EU ETS): aviation).

This has been highly controversial. In December 2009, a number of US aircraft operators brought a judicial review challenge against DECC, in respect of their inclusion in the EU ETS. The case was referred to the Court of Justice of the European Union (ECJ) for a preliminary ruling. In December 2011, the ECJ decided that including GHG emissions from non-EU based aircraft operators was lawful. As this was a preliminary ruling of the ECJ, the case will be returned to the Administrative Court for England and Wales (High Court) for its final judgment in the judicial review proceedings.

Further challenges from other aircraft operators and political retaliations may also follow. For more information, see Legal update, EU ETS: ECJ decides inclusion of international aviation is lawful.

Transition to Phase III

Phase III of the EU ETS runs from 2013 to 2020. During 2012, operators of installations within the EU ETS will be preparing for the significant changes introduced in Phase III (including less free allocation and more auctioning of allowances).

For more information on the EU ETS, see Practice note, EU Emissions Trading Scheme (EU ETS): overview.

Union Registry

The transition from national EU ETS registries to a single, centralised registry (Union Registry) will take place during 2012. The Commission has confirmed that the Union Registry will not be fully operational until June 2012 (see Legal update, EU ETS: Commission announces timing for transition to central registry).

Monitoring, reporting and verification

For Phase III, the Commission must adopt Regulations by the end of 2011, making provision for:

Monitoring and reporting emissions. Member states are required to ensure that EU ETS operators monitor and report on their emissions in each calendar year.
Verification of emission reports and accreditation and supervision of verifiers.

In November 2011, the Commission published draft Regulations on monitoring, reporting, verification and accreditation (see Legal update, EU ETS: Commission publishes two draft Regulations on monitoring, reporting and verification). The draft Regulations will now be submitted to European Parliament and Council for approval.

Early auctions

Early auctions for Phase III will be held in 2012 (see Legal update, EU ETS: EU Regulation amending Auctioning Regulation published in Official Journal: environmental aspects).

European Commission's Work Programme for 2012

For more information on what the EU is planning to do on the environmental front in 2012, see Legal update, European Commission 2011 Work Programme: environmental aspects.

Health and safety

In November 2011, the government accepted the recommendations of Professor Löfstedt's review of health and safety regulation. The government intends to take various measures by summer 2012, including:

Exempting self-employed people who pose no risk to others from health and safety legislation.
Simplifying guidance and codes of practice.

For more information, see Legal update, Autumn Statement: Environmental implications: Health and safety: review of regulations.

Localism Act 2011

The Localism Act 2011 (LA 2011) received Royal Assent in November 2011. The following environmental measures are expected tocome into force during 2012:

Abolition of the Infrastructure Planning Commission (IPC). The IPC will be replaced by a new Major Infrastructure Planning Unit (MIPU), which will form part of the Planning Inspectorate and make recommendations on planning consent decisions to Ministers. By July 2012, development consent decisions about major infrastructure projects will be made by Ministers. The government has said it will issue a direction in advance of the abolition of the IPC to clarify transitional arrangements.
Repeal of domestic waste charging pilots. On 15 January 2012, provisions in the Climate Change Act 2008 (CCA 2008) that allow for pilot areas where local authorities could levy additional charges for domestic waste collection, and eventual wider roll-out, will be repealed.

For more information on the LA 2011, see Practice note, Localism Act 2011.

Low and zero carbon buildings

Energy Performance of Buildings Directive

The recast EU Energy Performance of Buildings Directive will repeal and replace the 2002 version from 1 February 2012, and member states are required to adopt legislation to implement a large part of the Directive by 9 July 2012 (Directive 2010/31/EU on the energy performance of buildings (recast)) (see Practice note, EU Energy Performance of Buildings Directives 2002 and 2010).

Energy performance certificates

The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) (Amendment) Regulations 2011 (SI 2011/2452) come into force on 6 April 2012 (see Legal update, New energy performance certificate regulations published). The key changes to the existing regulations are:

An energy performance certificate (EPC) will be required on marketing for all properties.
Written property particulars must include a copy of the first page of the EPC. It is no longer possible to include only the asset rating.

Building Regulations

DCLG is expected to consult on further changes to the Building Regulations during 2012.

For more information on this, the forthcoming Building Regulations consultation in Wales and the Building Regulations (Review) Bill, see Legal update, What to expect in 2012: construction: Building Regulations 2010 (BR 2010)).

Zero carbon building targets

The government aims to achieve zero carbon new homes by 2016, which the Zero Carbon Hub is co-ordinating. During 2011, the Zero Carbon Hub published the second and third of its reports (on carbon compliance and allowable solutions) considering the framework that will enable developers to achieve zero carbon buildings.

Further consultation between the Zero Carbon Hub and industry is anticipated during 2012 (see Legal update, Zero Carbon Hub launches proposed framework for allowable solutions for zero carbon new homes and Practice note, Zero carbon buildings).

National Policy Statements

The government has updated its timetable for the preparation and designation of National Policy Statements (NPSs). The:

Waste water NPS is due to be completed by January 2012.
The hazardous waste NPS is due to be published by summer 2012.

For more information, see Practice note, Planning Act 2008: National Policy Statements: Timetable for the preparation and designation of NPSs.

For information on the abolition of the Infrastructure Planning Commission, which applied the NPSs, see Localism Act 2011 above.

Nuisance and interaction with environmental permits

The Court of Appeal is due to hear the appeal in Barr and others v Biffa Waste Services Ltd (No 3) [2011] EWHC 1003 (TCC) in late January 2012. The High Court judgment established the legal principle that defendants who operate under a detailed regulatory scheme and environmental permit will not usually be liable in private nuisance provided they have not been negligent or in breach of their permit (see Article, High Court clarifies relationship between environmental regulatory compliance and private nuisance).

Red Tape Challenge

The government launched the Red Tape Challenge in April 2011, to review over 21,000 pieces of legislation. The legislation will be grouped into themes. The public will be invited to comment, and once the consultation for a particular theme has closed, the relevant government departments will then have three months in which to justify the continued existence of the relevant legislation. The Red Tape Challenge included a review of environmental and energy legislation in 2011, so during 2012 the government will be considering the public's comments on those themes. For more information, see:

Restriction of Hazardous Substances (RoHS)

The RoHS Directive 2011 entered into force in July 2011 (Directive 2011/65/EU on the restriction of the use of certain hazardous substances in electrical and electronic equipment (recast)). Member states have until 2 January 2013 to implement the Directive into national laws.

In June 2011, the government announced, as part of its findings of its review of waste policy in England, that it would review the RoHS regime in England by winter 2012. It intends to simplify the regime to reduce costs and the administrative burden.

For more information on:

The RoHS Directive 2011, see Practice note, RoHS regime: Restrictions on Use of Hazardous Substances in Electrical and Electronic Equipment.
Implementation in England, see Legal update, Government publishes its review of waste policy: detailed analysis.

Waste

Review of waste policy in England

Defra published its review of waste policy in England in June 2011 (see Legal update, Government publishes its review of waste policy: detailed analysis). It announced the following for 2012:

Producer responsibility. The government will seek to simplify the statutory producer responsibility schemes (relating to waste electrical and electronic equipment (WEEE), vehicles, batteries and packaging waste) in order to reduce the costs and the administrative burden. It will review these regimes by winter 2012. For more information on WEEE, see WEEE below.
Producer responsibility regime for packaging waste. The government will review the regime for producer responsibility regime for packaging in time for a new packaging directive, which is expected from 2014. For more information on the current waste packaging regime, see Practice note, Packaging waste regime. The government will consult on increased recycling targets on packaging producers from 2013 to 2017. The final targets will be announced in Budget 2012 (due on 21 March 2012).
Landfill of wood waste. The government will consult on whether to introduce a restriction on the landfilling of wood waste, in 2012.
Progress. The government will assess its progress in implementing its commitments under the Waste Policy Review in March 2012.

Amendment to controlled waste regulations

The government consulted on proposals to enable local authorities to charge for disposal of non-domestic household waste in November 2010 (see Legal update, Defra consults on proposals to charge for disposal of non-domestic household waste). The regulations were due to come into force in October 2011 but have not yet been made. The government intends to introduce the changes to the charging regime in April 2012.

Co-mingling recyclable waste

In November 2011, Defra announced that it will make technical changes to the Waste (England and Wales) Regulations 2011 (SI 2011/988) to "ensure multi-bin recycling systems are not imposed on residents". The Regulations currently permit the collection of mixed recyclable waste (known as co-mingling), a practice that is subject to a judicial review challenge launched in September 2011. Defra says that it will consult on its proposed changes to the Regulations, but does not give timing for this consultation or for the amending legislation. For more information, see Legal update, Defra announces technical changes to Waste Regulations 2011 on co-mingling recyclable waste.

Waste Electrical and Electronic Equipment (WEEE)

The European Parliament and the Council are expected to adopt a draft Directive to revise and replace (recast) the Waste Electrical and Electronic Equipment Directive (Directive 2002/96/EC on waste electrical and electronic equipment (WEEE)). This is expected to progress through the EU legislative process during 2012. For more information, see Legal updates, European Commission publishes proposal for a revised WEEE Directive and Recast WEEE Directive: European Commission adopts Communication on the Council's first reading position.

Water

Water White Paper

Defra published a Water White Paper in December 2011 (see Legal update, Defra publishes Water for Life White Paper), which includes.

Measures for water companies to help householders use water more efficiently
Proposals to reform the abstraction regime to ensure abstractors invest to meet water needs, protect ecosystem function and tackle the legacy of unsustainable abstraction more efficiently.

The government intends to publish a draft Water Bill for pre-legislative scrutiny in early 2012, introducing the Bill as soon as Parliamentary time allows. Other key steps for 2012 are to:

Issue a new strategic policy statement and social and environmental guidance for Ofwat.
Introduce new arrangements to work with stakeholders on the design of a new abstraction regime.

Water footprinting

Defra's Natural Environment White Paper, published in June 2011, announced that the government will develop an agreed approach to water footprinting by December 2012 (see Legal update, Defra publishes Natural Environment White Paper). For more information on the White Paper, see Natural Environment White Paper above.

Flooding

For information on developments related to flooding in 2012, see Legal update, What to expect in 2012: property: Flooding.

Marine and coastal

In 2012, the government will designate the new marine conservation zones (MCZs) under Part 5 of the Marine and Coastal Access Act 2009 (see Legal update, New marine conservation zones recommendations and Practice note, Marine and Coastal Access Act 2009: Part 5: Marine nature conservation).
In February 2011, the WG consulted on marine planning in Wales (see Legal update, Consultation on marine planning in Wales). The WG's consultation response is expected in February 2012.

Proposed EU legislation for safety of offshore oil and gas activities

In October 2011, the Commission published draft legislation to:

Reduce the risk of a major offshore oil and gas accident happening in EU waters.
Limit the consequences if an accident were to occur.
Ensure that the highest safety standards that are already followed in some member states are applied to all member states.

The draft legislation will now be debated by the European Parliament and Council. It is expected to apply to existing installations from 2014, and to new installations from the date it enters into force.

For more information, see Legal update, European Commission publishes draft legislation on oil and gas safety.

Water pollution under the contaminated land regime

For more information, see Water pollution above.