Archive for category Environmental law – EU

Protreat: The end of Waste status of Waste lubricating oil; the waste hierarchy; and the absence of duty for Member States to issue regulatory guidance.

Does a Member State have any obligation at all, either generally or in case-specific circumstances, to provide guidance as to when a product derived from Waste lubricating oil – ‘WLO’ has or has not achieved end-of-waste status through either re-refining or reprocessing? And in the case at issue, was the UK’s Environment Agency correct in its classification of the treated WLO as still being waste, specifically: did the Agency unfairly favour waste oils recovery over material recycling?  These were the issues in [2018] EWHC 1983 (Admin) Protreat v Environment Agency in which Williams J evidently looked primarily to EU Waste law, the Waste Framework Directive 2008/98 in particular.

Among the many points of factual discussion is a review of the Member States’ duties under the Waste hierarchy: Protreat argue (at 67) that the Environment Agency, ‘as an emanation of the State, is under a duty proactively to direct its resources and use its powers to seek to ensure the result required by the Waste Directive. It is submitted, too, that the result required includes “the management of waste in accordance with the waste hierarchy set out in Article 4 of the Waste Directive”. According to the Claimant, this requires the Defendant to perform its functions, so far as possible, to ensure that waste oil treatments higher in the waste hierarchy “are more attractive than treatments lower in the hierarchy”‘.

Williams J is entirely correct at para 71 ff to hold that the hierarchy does not imply that its strict application in all circumstances is not always justified: indeed the hierarchy instruct first and foremost the best environmental outcome in specific circumstances.

That in and of itself makes regulatory guidance difficult to issue – and EU law in general does not impose any obligation to do so: at 81: ‘the terms of Article 6 and, in particular, paragraph 4 thereof, do not support the contention that the Directive imposes upon Member States a specific obligation to provide end-of-waste guidance whether in relation to the products of re-refining or the products of any other process of conversion of waste. The power to decide end-of-waste status “case by case in accordance with the case-law” would, no doubt, permit a regulator to issue guidance. I am not persuaded, however, that this language can be the vehicle for the creation of a specific obligation to issue guidance.’ (Sir Wyn also referred to Article 4 and Article 21 to support that analysis).

Reference to Luxembourg was requested but declined.

Geert.

 

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Micro and nanoplastics pollution. The European Union shifting into gear.

There are many scientific and legal /regulatory angles to the pollution caused by micro and nanoplastics (MNPs). I was pleased to have been invited to be part of a scoping exercise with the European Commissions Group of Chief Scientific Advisors, following which that Group issued its initial statement early July.

MNPs is an issue where the EU undoubtedly can recognise its regulatory leadership – at the same time appreciating that the challenge is of a truly global nature (many of the worst plastics pollution issues are located in river deltas way outside EU borders). At the scientific level, studies particularly in the marine environment show cause for great concern – but not necessarily easy fixes.

I accepted therefore to be part of the SAPEA Consortium (Science Advice for Policy by European Academies) Working Group on MNPs, which will oversee in first instance the collation of the state of the art: from a regulatory as well as a scientific point of view – and subject to tight deadlines.

Autumn should be interesting.

Geert.

 

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Some data crunching on manufactured nanomaterials.

A short post on manufactured nanomaterials and data. (Readers will be aware that although the blog focuses mostly on litigation, I dabble in regulatory research and practice, too. And that nanotechnology regulation has been a consistent interest of mine).

Thank you Lynn Bergeson and Carla Hutton for flagging the study by EUON on data collection and reporting methodology for manufactured nanomaterials. EUON, the European Union’s Observatory for Nanomaterials, is hosted by ECHA – the EU’s Chemicals Agency. The study’s purpose is made clear on p.15 (only) of the report: the overall context is for the regulators to have an overview of the heterogeneous market for nanomaterials. In order to do so, the study measures the reliability etc of existing reports and studies on the nanomaterials market. It concludes that a Delphi study of the existing research would be required.

For those of you with an interest in information flows and the transparency of data, the implications are clear: part of the exercise of regulating new technologies is to know what is out there; and manufacturers’ data clearly are not making it into the public domain in a transparent and coherent manner. Consider alongside this report, for instance the proposed US EPA rule on transparency in regulator science.

Geert.

 

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Palin Granit down under. EPA v Grafil Pty and MacKenzie.

There are in fact many differences between Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v MacKenzie [2018] NSWLEC 99 and the CJEU’s Palin Granit; and the regulatory context in NSW is quite different from the EU’s. My title therefore is a crowd pleaser rather than legally sound. Yet some of the issues are similar, hence justifying inclusion in the comparative environmental law /waste law binder (and a good teaser for the W-E).

Samantha Daly and Clare Collett have excellent as well as extensive analysis here and I am happy mainly to refer.

Defendants received materials from recycling depots operated by skip bin companies in Sydney. These materials were recovered fines which had been processed and recycled from building and demolition waste, for which there was no market for re-sale at the time (due to the high volumes of such material produced by the recycling industry). This material was trucked to the Premises by transporters from the recyclers and placed in mounds or stockpiles on the Premises.

Was there a stockpile of ‘waste’? Palin Granit considers similar issues in para 36 in particular.

Geert.

 

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Time to update the Waste Handbook. The circular economy package published. OJ [2018] L150.

One or two of you are aware I have written a whole handbook on EU waste law. That now needs updating as a result of the publication of the adopted ‘Circular Economy package’ – although implementation dates are some time off so if you do have a copy, do not discard it just yet.

The package includes amendments to the ELV, Batteries, WEEE, Landfill, packaging and packaging waste, and waste framework Directive.

I am hoping to write a paper on the package which will summarise the developments – watch this space.

Geert.

Handbook of EU Waste law, 2nd ed. 2015: all chapters 🙂 .

 

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Towards an innovation principle: our paper on an industry horse knocking at the EU door.

Our paper on the innovation principle, with Kathleen Garnett and Leonie Reins is just out in Law, Innovation and Technology. We discuss how industry has been pushing for the principle to be added as a regulatory driver. Not as a trojan horse: industry knocks politely but firmly at the EU door, it is then simply let in by the European Commission. We discuss the ramifications of such principle and the wider consequences for EU policy making.

Happy reading.

Geert.

(Handbook of) EU Environmental Law (with Dr Reins), 1st ed. 2017, Chapter 2.

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Seatrade: Ships as waste.

Rechtbank Rotterdam held on 15 March last that 4 ships owned and operated by the Sea Trade concern had to be regarded as waste when they left the port at Rotterdam cq Hamburg (they were eventually beached in a variety of destinations). Not having been notified as waste, their shipment was considered illegal and the concern as well as some of its employees consequently convicted. (Illegal waste shipments being a criminal offense).

The court decided not to refer to the CJEU on the application of the waste definition to ships, as it considered the issue to be acte clair. The court’s review of the legal framework is included in Heading 4.3.4. As such, the analysis does not teach us much about the difficulty of applying the waste definition to international maritime logistics, in particular ship disposal. The court found at a factual level that the owners’ intention to dispose of the ships was clearly established when the ships left the EU, with, it suggested, the facts proving that the intention to dispose was at that moment of such an intensity as to trigger the waste definition.

The court does flag its appreciation for the difficulties. Not only is eventual disposal of hardware such as ships a possibility from the moment of their purchase. Such intention may also be withdrawn, reinstated, modified, at various moments of the ships’ life, fluctuating with market circumstances. Particularly given the criminal nature of the legal discipline here, I find that a very important driver to tread very cautiously and to look for firmer objective factors to establish intent.

Most probably to be continued on appeal.

Geert.

(Handbook of ) EU Waste law, 2nd ed. 2017, para 1.20 ff. Disclosure: I acted as court expert.

 

 

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