The design of the BAT regime in the UK is being reviewed following the country’s departure from the EU. Photograph: Getty Images The design of the BAT regime in the UK is being reviewed following the country’s departure from the EU. Photograph: Getty Images

The lowdown on DEFRA’s plans for a new UK BAT process

A consultation that closed on 18 April poses some important points about the future of ‘best available techniques’ post-Brexit, writes James Nierinck

A consultation was launched on best available techniques (BAT) on 25 January by the UK government and devolved administrations under the banner Best Available Techniques – A future regime within the UK. Its overarching aim is to seek views on the design of the BAT regime in the UK following the country’s departure from the EU. 

The consultation provides an outline of the proposed organisation and governance structure for the planned UK BAT regime. This includes a new BAT standards council, regulators group and technical working groups, which are required to replace the existing EU BAT architecture. The consultation provides further detail on the composition of each of these groups and their functions. 

READ MORE: Risk review - second quarter, 2021

Much is made of the proposed increase in public participation in the new BAT process. Under the proposals, the public would be able to participate in both the initial call for evidence and the consultation on the BAT determination document itself. 

The consultation also comments on a number of key policies for implementing BAT. It proposes that the existing four-year time period for implementing BAT in permits is maintained. Further, of importance to older installations, the criteria and process for granting derogations from BAT is also proposed to be retained. 

However, departing from existing guidance, it is proposed that the Environment Agency (EA) is given greater flexibility to impose tighter emission limit values within the BAT range for installations in England and Wales. The current guidance states that, where BAT emission limits are set as a range, the permit emission limit values should usually be set at the top, therefore less stringent, end of the range. 

Finally, it is proposed that UK BAT is reviewed six years after publication of BAT, to understand how it has been implemented. This review period has been scheduled to fall two years after the deadline for the transposition of BAT into permits.  

As the founder of the concept of BAT, it is no surprise that the UK is continuing to pursue a structure of regulation centred around it after Brexit. The consultation stresses that the UK is looking to achieve a “collaborative approach” between all stakeholders and a “clear process” for determining and evaluating BAT. 

There are perhaps three key points of note. First, while the UK will take a common approach to developing BAT, the fact that air quality is a devolved policy area means the four nations may end up setting different BAT. So emission limit values in Scotland could be tighter than in England.  

In connection with this, while setting BAT remains largely expert led, there is an enhanced focus on public participation. This is likely to drive greater awareness of the regulation of UK installations and public scrutiny over the setting of BAT.

Finally, the proposed change in EA guidance is likely to result in tighter emission limit values in environmental permits, tailored to the installation and its setting. 

James Nierinck is a senior associate at law firm Ashurst

This article is an extract from ENDS’ new quarterly environmental risk review. To read the risk review for quarter two in full, please click here.

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