Brexit and the circular economy package

The publication of the European Union (Withdrawal) Bill, converting all extant EU laws into UK law, again brings into focus the likely fate of the EU’s Circular Economy Package (CEP) post-Brexit. All guesswork and supposition of course, since a forward-looking waste management vision and plan for the UK is conspicuously lacking at the moment.

Incorporation of the CEP into UK law might or might not proceed on a formal basis. If enacted in the European Parliament (EP) before exit day, the UK may choose to interpret its adoption as pertaining to its implementation date, typically 2-3 years from the date of enactment – a potential get out of jail card if the government was ambivalent about adopting it. Even if the CEP was transferred into UK law, the Bill gives Ministers powers to “correct problems arisings from withdrawal” by invoking statutory instruments. The examples given in the Bill’s explanatory notes are predictably bland, but striking out aspects of environmental legislation such as the hard targets in the CEP by Ministerial decree is not out of the question – concerns have already been raised with respect to, for example, EU air quality legislation.

And the mood music from the present government seems to suggest just that. Under the Estonian presidency, trilogue discussions have commenced between the European Council representing the Member States (including the UK), the Commission and the EP in order to find a compromise position if possible by the end of the year. The EP and the Council have differing positions on key issues:

1. Municipal waste recycling target: EP wants 65% by 2025, 70% by 2030. Council wants 55% by 2025, 60% by 2030. Commission earlier suggested 65% by 2030.
2. Packaging waste recycling and recovery target: EP wants 70% by 2025, 80% by 2030. Council wants 60% by 2025, 70% by 2030.
3. Landfill diversion target: EP wants maximum 5% municipal waste landfilled by 2030, limited to “only residual” waste. Council wants maximum 10% landfilled by 2030.
4. Extended Producer Responsibility: EP and Council differ in the scope of application of Article 8a.

Defra’s objection to the initial CEP launched by Commissioner focused on the supposedly poor quality of the Commission’s economic assessment supporting 70% recycling by 2030. Defra’s own cost-benefit modelling suggested a more modest 55% recycling as “feasible”. Furthermore, Defra’s recent post-implementation review of the UK’s packaging regulations, incorporating a PRN system manifestly at odds with Article 8a of the CEP, advocated its continuation.

The likely compromise position between the Council and EP positions on recycling targets could arguably be 65% recycling by 2030, which is a long way from Defra’s “feasible” 55%. Combining that with the continuation of PRNs in the face of the possible imposition of Article 8a sends a confusing signal as to Defra’s long term intentions. Given the distance between the UK’s positions on these and other matters and even the Council’s formal negotiating position in the trilogues, and given the current government’s aversion to hard regulation, the odds are that the UK could ignore or strike out aspects of the CEP to which it is unsympathetic. Always bearing in mind that while Defra ostensibly represents the UK in the Council, domestically its writ extends over England, with the other devolved administrations crafting their own, more ambitious strategies.

In terms of providing the long term legislative certainty we ask for, especially the certainty that targets give us, that is not helpful. Of course that could change with a change of government, or if the UK embraced the EU single market as opposed to going for a hard Brexit.