After a disappointing outcome at COP28 and a weakening of several key net zero policies by the government in 2023, what does 2024 hold for environmental law and regulation? Here are our top 10 things to watch out for.
1. Extended producer responsibility for packaging
2023 saw the introduction of packaging waste data reporting regulations in England, Scotland and Wales. Those packaging producers required to report their ‘nation data’ (information about which nation in the UK packaging is supplied in and which nation in the UK packaging is discarded in) will need to report that data by 1 December 2024.
2023 also saw a consultation on new draft Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations, which are expected to be introduced later this year. Although the waste management fees payable by packaging producers under the new packaging extended producer responsibility regime have been delayed until October 2025, many of the new Regulations’ other provisions are likely to come into force this year.
2. Extended producer responsibility for WEEE
In an unexpected move during the festive season, Defra and the devolved administrations published a consultation on 28 December 2023 on reforming the producer responsibility system for waste electrical and electronic equipment (WEEE). The consultation closes on 7 March 2024 and is seeking views on how the existing Waste Electrical and Electronic Equipment Regulations 2013 could be reformed in order to drive up levels of re-use and recycling of WEEE.
In particular, the consultation is seeking views on how to make the re-use and recycling of WEEE easier by expanding the existing collections infrastructure to make it more convenient for the public and businesses to deal with their WEEE properly.
3. New permitting requirements for waste carriers, brokers and dealers – and digital waste tracking
The government consulted in 2022 on reforming the current registration system for waste carriers, brokers and dealers, by bringing it within the environmental permitting regime. In October 2023 the government responded to that consultation indicating that it intends to proceed with its proposals. Under the new system, waste carriers, brokers and dealers (who will be known as ‘waste controllers’ and ‘waste transporters’) will need to obtain a ‘standard rules’ environmental permit or register an exemption.
The government is expected to introduce legislation later this year implementing the changes.
Alongside the changes to the waste carrier, broker and dealer registration system, the government has indicated that it will also proceed with the introduction of a digital waste tracking system.
Other environmental permitting changes for 2024 include the requirement for existing medium combustion plants with a rated thermal input above 5MW to hold an environmental permit from 1 January 2024.
4. ESOS compliance deadline
5 December 2023 was meant to be the compliance deadline for Phase 3 of the Energy Savings Opportunity Scheme (ESOS), but the deadline has been postponed to 5 June 2024 in order to allow participants more time to comply with some additional requirements introduced for Phase 3 and future phases. Those include the standardisation of reporting formats and the strengthening of auditing requirements.
Although June 2024 may seem a long time away, gathering the information required to be reported under ESOS and procuring the services of an energy assessor to audit the information can take several months, so those organisations that qualify for ESOS would do well to start their compliance work now. Undertakings that have 250 or more employees (regardless of turnover), or an annual turnover exceeding £44 million and an annual balance sheet total exceeding £38 million are required to participate in ESOS.
5. Variable monetary penalties for permit breaches
On 1 December 2023 new regulations came into force allowing the Environment Agency to impose variable monetary penalties (VMPs), a form of civil sanction, for environmental permitting offences, and also removing the previous £250,000 cap on VMPs. The Environment Agency is expected to start using its new powers this year, although it may be a few months before we see the first VMPs imposed, as they can only be used for offences committed on or after 1 December 2023.
6. Implementation of biodiversity net gain requirements for developers
The requirement contained in the Environment Act 2021 for developers to provide a biodiversity gain plan showing how they will deliver at least a 10% biodiversity net gain is expected to come into force for large sites in January 2024 and for small sites in April 2024.
It is important to note that the 10% requirement is only a minimum requirement. Some local planning authorities are reportedly opting for a higher requirement of 20% or even 30% in their emerging local plans.
With the dust barely settled on COP28, attention is already starting to focus on COP29, which is scheduled to take place from 11 to 22 November 2024 in Baku, Azerbaijan. It has been announced that the COP29 president will be Azerbaijan’s ecology and natural resources minister (a former executive in its state oil and gas company).
With 2023 confirmed as the hottest year on record, it seems likely that there will be renewed pressure at COP29 to curb the use of fossil fuels.
8. Continued political, regulatory and public pressure on water companies over sewage discharges
Despite a failed legal challenge to Defra’s storm overflows discharge reduction plan in 2023, pressure on water companies to tackle sewage discharges into watercourses seems unlikely to diminish in 2024. In September 2023 the Office for Environmental Protection announced that it had identified possible failures to comply with environmental law by Defra, the Environment Agency and Ofwat in relation to the regulation of combined sewer overflows.
2024 may also see the Environment Agency using its new powers to issue VMPs to water companies who breach the conditions of their environmental permits (see above).
9. Politicisation of net zero and other environmental policies
With a UK general election due no later than January 2025 and the government announcing delays in the implementation of some of its key net zero policies in 2023, environmental policy and regulation (in particular net zero policies) may well become key political issues in 2024. So far this year, the government has already announced a review of the policy and timelines for the implementation of minimum energy efficiency standards for residential properties.
10. Further ESG regulation
No prediction for environmental law and regulation in 2024 could fail to mention ESG. This year is likely to see a number of important developments.
In the EU, member states will be required to implement into their national laws the requirements of the Corporate Sustainability Reporting Directive (CSRD) by 6 July 2024. The EU is also expected to adopt the Corporate Sustainability Due Diligence Directive. Both directives may impact on UK businesses that do business in the EU.
In the UK, the government is expected to create the UK Sustainability Disclosure Standards (UK SDS) by July 2024. The UK SDS will be based on the IFRS Sustainability Disclosure Standards issued by the International Sustainability Standards Board and will be the UK’s answer to the European Sustainability Reporting Standards, which underpin the EU CSRD.
Following a consultation in 2023, 2024 may also see the introduction of requirements for large public and private companies to publish ‘net zero transition plans’, demonstrating how they propose contributing to and preparing for a rapid global transition towards a low greenhouse gas emissions economy.
Attempts at ‘greenwashing’ by businesses will also continue to attract close scrutiny and may even be prohibited altogether as an ‘unfair commercial practice’ under the Digital Markets, Competition and Consumer Bill.