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BREXIT: Strong EU role means post-Brexit uncertainty for waste management regulation

FOCUS: Policy development and regulation of the UK waste management sector is currently driven strongly by the EU, and there is little consensus on how waste policy and regulation would change if the UK were to leave.04 Apr 2016

This is part of Out-Law's series of news and insights from Pinsent Masons lawyers and other experts on the impact of the UK's EU referendum. Sign up to receive our Brexit updates by email. 

The impact would depend on what stance the UK government decided to take on current environmental protection requirements, and on what relationship the UK went on to hold with the EU.

Recent negotiations between UK prime minister David Cameron and the European Council did not cover principles of environmental protection, resource management and climate change, so there is little clarity on what an exit vote would mean for the sector.

Regulatory uncertainty

A number of judgments relevant to waste management in the UK, including some pivotal judgments on the definition of waste, have been handed down by the Court of Justice of the European Union (CJEU). Depending on the transitional agreements put in place if the UK leaves, the CJEU may no longer have the jurisdiction to hear cases from the UK.

It is likely that UK courts would consider CJEU judgements, but would no longer be bound by them. UK courts may therefore begin to interpret some key concepts applicable to waste regulation in a different way. This could lead to uncertainty, and could result in differential regulation between the EU and the UK.

It is also possible that the UK might repeal or change some legislation and guidance based on EU law, as a demonstration that it is cutting EU 'red tape' to help UK industry. These changes could also affect UK-specific legislation.

On the other hand, if the UK does vote to leave the EU in June, it may seek to rejoin the European Economic Area (EEA). The majority of EU environmental law applies to EEA members, so the UK could end up out of Europe but still covered by its environmental protection and waste regulation laws, in which case it would not be able to cut EU based regulation. This would, of course, be politically difficult to present to voters, and there is no obligation for the EEA to accept the UK as a member.

Imports and exports

The UK currently imports and exports waste for recovery from and to the EU, and in particular sends a significant volume of refuse-derived fuel to other EU member states. Different controls apply depending on whether an exporter or importer is an EU member state or not, and as such UK based companies could see a difference in the way their shipments are regulated if the UK were to leave the EU.

The UK would remain a signatory to the Basel Convention and other international treaties that provide a framework for cross-border movements of waste and hazardous waste.

Circular economy

The EU published its circular economy package in December 2015, setting new recycling targets and other measures designed to drive the transition to a circular economy within the EU. A report by Imperial College London in 2015 estimated that the adoption of a circular economy could contribute £29 billion or 1.8% of current GDP to the UK economy by 2025, and could also create around 175,000 jobs.

Leaving the EU would mean that the UK may not be subject to the changes to waste law that will be introduced through the EU’s circular economy package, unless it were to adopt these measures of its own accord.

In particular, as the EU moves to develop a coherent set of measures covering the whole resource lifecycle, from manufacture to end of life, the UK could find that it is left outside of a developing and important new marketplace unless it agrees to apply the measures of its own accord.

New regulation

There are concerns over whether the UK has sufficient resources in place to implement any real change in law or policy without the EU driving it. DEFRA has not set out new waste policies for a number of years, and has taken a light touch to implementing new legislation from the EU. This contrasts with Scotland, and to some extent Wales, where there have been signs of a more ambitious approach to the issue of waste and resources.

Even if the waste sector retains a 'business as usual' scenario by retaining existing laws and standards after leaving the EU, it remains very unclear how law and policy will progress in the future.

Fiona Ross is an environment law expert with Pinsent Masons, the law firm behind Out-Law.com.

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