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Strategy positions UK as a world leader in the hydrogen space, supporting 9,000 plus jobs and unlocking £4 billion in investment by 2030.

By Paul Davies, John-Patrick Sweny, and James Bee

On 17 August 2021, the Department for Business, Energy and Industrial Strategy (BEIS) published the UK’s first Hydrogen Strategy (the Strategy). The Strategy sets out the government’s roadmap for achieving its ambition of 5GW of low carbon hydrogen production capacity by 2030, as identified in the Ten Point Industrial Revolution Plan released in November 2020, with government projections indicating that 20-35% of the UK’s energy consumption could be hydrogen-based by 2050.

Forecasts suggest that by 2030, hydrogen could play an important role in decarbonising certain highly polluting industries that are unsuitable for electrification, such as chemicals, industrial furnaces, and long-distance or heavy-duty transport, as well as replace natural gas in powering around three million homes a year. The Strategy clarifies the government’s view that developing the UK hydrogen sector will achieve the twin goals of reducing the UK’s carbon footprint in line with the UK’s net zero commitments, whilst stimulating significant job creation and economic growth in the industrial sector.

The Directive aims to reduce the impact of plastic products and therefore help protect the environment and human health.

By Paul A. Davies and Michael D. Green

On June 12, 2019, a new directive was published that aims to help protect land and marine environments, as well as human health. The mandate — Directive (EU) 2019/904 on the reduction of the impact of certain plastic products on the environment (Single-Use Plastics Directive, or the Directive) — introduces measures to prevent and reduce the impact of certain plastic products, and promote transition to a circular economy.

The Directive encourages the prioritization of “sustainable and non-toxic re-usable products and re-use systems”. This approach aims to reduce plastic waste, drive the promotion and development of alternative materials, and promote the design and production of plastics and plastic products that are re-usable, repairable, and recyclable.

The Directive contains a number of substantive measures that will impact Member States, which are explored in this post.

The significant extension aims to manage plastic waste in an environmentally sound manner and support less developed nations that import waste.

By Paul A. Davies and Michael D. Green

On May 10, 2019, following two weeks of negotiations involving 1,400 delegates, at the Conferences of Parties to the Basel, Rotterdam and Stockholm Conventions, it was agreed to extend the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (the Basel Convention) to include plastic waste (as well as making certain changes to the Rotterdam and Stockholm Conventions). The framework regarding the Basel Convention will look to implement a transparent and traceable system for the export and import of most plastic wastes under which exporting states must now obtain prior written consent from importing states.

This development represents a step change in the global management of plastic waste and places plastic waste within a globally recognised legal standard for the control of international movements of waste.

The Committee has recommended that the UK government take the lead in reaching net-zero, through social, financial, and policy change.

By Paul A. Davies and Michael D. Green

The Committee on Climate Change (CCC), a statutory body that advises the UK government on carbon budgets, has recommended that the UK government should commit to cutting greenhouse gases (GHGs) to net-zero by 2050 in an attempt to meet its commitments under the 2015 Paris Agreement. The Financial Times described the proposed goal as the “toughest binding target of any big economy.”[i] To meet this ambitious net-zero target, the UK government would need to employ technologies such as carbon capture, utilization, and storage to curtail the volume of GHGs entering the atmosphere. Chris Stark, chief executive of the CCC, remarked that the UK’s bid to reach net-zero will be a “powerful signal to other countries”[ii] to take action.

EU will tax manufacturers for excess emissions and collect individual consumption data from vehicles in order to meet climate change goals.

By Jörn Kassow and Patrick Braasch

The EU is setting stricter CO2 emission standards for new passenger cars and light commercial vehicles (LCVs). A new regulation on CO2 emission standards (Regulation (EU) No 2019/631), replacing the past regulations (EC) No 443/2009 and (EU) No 510/2011, was published in the Official Journal on 25 April 2019 and will enter into force with effect from 1 January 2020. From 2025 onwards, the average CO2 emissions of new passenger cars and LCVs must be reduced by 15% compared to 2021 levels. By 2030, the average emissions must be reduced by 37.5% for passenger cars and 31% for LCVs, in each case compared to 2021 levels.

These average emissions targets apply to each manufacturer’s (or group of connected manufacturers’) EU-wide fleet of new passenger cars and LCVs. The regulation will reward manufacturers with less stringent CO2 targets if they meet benchmarks regarding their respective fleet’s share of zero- and low-emission vehicles (2025: 15% for both passenger cars and LCVs, 2030: 35% for passenger cars and 30% for LCVs). Furthermore, manufacturers may enter into pooling arrangements (subject to competition law restrictions) for meeting their emissions targets. These arrangements will allow leaders in zero- and low-emission vehicles to capitalise on their below-average emissions by pooling with, and effectively selling their emissions savings to, manufacturers of more traditional, i.e., CO2-intensive passenger cars and LCVs. Manufacturers can also apply to the Commission for consideration of CO2 savings achieved through the use of innovative technologies. The Commission may grant temporary derogations from their specific emissions targets to certain niche manufacturers.

Reports suggest that China’s promising focus on environmental regulation may be slowing amid an economic downturn.

By Paul A. Davies and Andrew Westgate

Background

At the 2014 National People’s Congress, Chinese Premier Li Keqiang’s rhetoric adopting an “iron fist” approach in a “war against pollution” represented a stunning volte-face from China’s relaxed environmental oversight and prioritization of economic growth over the preceding four decades.

Building on pollution reduction targets set in 2013, the Environmental Protection Law of the People’s Republic of China (EPL) was adopted in 2014 and came into force in 2015. The EPL represented the first real revision to Chinese environmental law since 1989, and it took a modern, holistic approach to environmental legislation. The EPL declared environmental protection a fundamental national policy; obligated all entities and individuals to protect the environment; encouraged entities and individuals to use environmentally friendly and recycled products; adopted a total pollutants emission control system and public disclosure requirements; empowered citizens to report environmental pollution and bring public interest litigation; and imposed penalties, including daily fines and administrative detention for polluters and for government officials that fail to enforce environmental law.

The framework represents China’s first comprehensive regulation of environmental risks from chemical substances.

By Paul A. Davies and R. Andrew Westgate

The Chinese Ministry of Ecology and Environment’s (MEE’s) draft Regulation on Environmental Risk Assessment and Control of Chemical Substances (Regulation) is likely to have broad implications for companies that manufacture, process, import, or export more than 100kg of any chemical substance in China. The framework represents China’s first comprehensive regulation of environmental risks from chemical substances.

Companies should be aware of MEE’s action plan for enforcing the Regulation, as well as those provisions that will impact their business activities.

China’s MEE is seeking comment on new chemical regulation framework, which includes a comprehensive environmental risk assessment.

Paul A. Davies, Ethan Prall, and R. Andrew Westgate

In January 2019, China’s Ministry of Ecology and Environment (MEE) issued a draft Regulation on Environmental Risk Assessment, and Control of Chemical Substances (the Chemical Substances Regulation or CSR) in conjunction with 20 other ministries and agencies, including the Supreme People’s Court, the National Development and Reform Commission, and the Ministry of Commerce. MEE is seeking comment on the draft regulation through February 20, 2019, which is available in Chinese only.

This draft regulation is significant because it represents China’s first comprehensive regulation of environmental risks from chemical substances, similar to the Toxic Substances Control Act in the United States or the Registration, Evaluation, Authorization, and Restriction of Chemicals Regulation (REACH) in the European Union. In the past, China’s chemical regulations, such as Order 7 issued by the former Ministry of Environmental Protection (also known as China REACH), have been more narrowly focused on requiring the registration of “new chemical substances” and on the import and export of toxic chemicals. As discussed below, the draft CSR incorporates not only most of the existing chemical registration requirements under Order 7, but would also introduce additional requirements creating a broader new chemical regulation framework.

Waste producers must comply with new criteria and procedures for objects and products to benefit from end of waste status.

By Paul Davies

The French government has developed many measures to foster circular economy approaches. Most recently, a Ministerial Order of 11 December 2018 (Order) sets out criteria and procedures to end the waste status of certain objects and chemical products, to encourage their preparation for re-use.

The French Code of the Environment[i] defines “preparing for re-use” as “checking, cleaning or repairing recovery operations, by which products or components of products that have become waste are prepared so that they can be re-used without any other pre-processing.”

The Order requires that the objects and products meet specific criteria in order to benefit from the end of waste status. The criteria relate to:

  • The nature of the object or product
  • Techniques and treatment processes
  • Qualities and properties of objects and products resulting from such treatments
  • Contractual conditions subject to which such objects and products will be sold
  • Operator’s obligations in relation thereto (traceability)

Four NGOs launch innovative action claiming state has not met COP21 objectives.

By Paul A. Davies and Michael D. Green

On 17 December 2018, four NGOs filed legal action against the French state. In the legal action, the NGOs argued that the state has not met the short-term climate change objectives set at COP21. The NGOs — Greenpeace France, Oxfam France, the Fondation pour la Nature et l’Homme (FNH), and Notre Affaire à Tous — simultaneously launched an online petition to involve citizens in the action, now nearing an unprecedented two million signatures to date.

In accordance with the French Administrative Justice Code, the procedure for the legal action has two prongs. First, the claimants submitted a preliminary demand (demande préalable) to the Prime Minister and to no less than 12 government members seeking damages for: (i) moral harm, (ii) moral harm suffered by their members, and (iii) ecological prejudice suffered by the environment. (For more information on ecological prejudice, see Latham & Watkins’ blog post “The Notion of ‘Ecological Prejudice’ Now in the French Civil Code”.) If the state does not respond within two months of the preliminary demand, the claimants intend to file an indemnification claim before the Administrative Tribunal of Paris in March 2019. The claimants intend to allege causation between the state’s lack of action and the acceleration of climate change.