1 Britain needs BAT
Brexit meant that the UK was detached from how BAT is determined within the EU. Without a new system, the current standards would be frozen in time and would not adapt to new technologies and social demands to reduce pollution.
2 The government is taking its time
The consultation in fact opened on 22 January, one of the first after Brexit became full and final. It closed more than five months ago, though no response has been issued.
Only a brief statement has been forthcoming since then. Last week, DEFRA said that 77 consultees commented on the proposals, the majority being “trade associations and consultancies representing the various industrial sectors regulated under the Industrial Emissions Directive”. It added that details of the new regime should emerge by the end of the year.
3 The BREF process looks to be replicated
DEFRA and the devolved administrations intend to largely replicate the EU’s Sevilla Process for drawing up new BAT reference documents (BREFs). In brief, this is a collaborative, committee-based system involving government, industry and NGOs that tries to reach a consensus on the best balance between limiting emissions and the cost of doing so. Doing so takes years.
The BAT-associated emission levels set in BREFs (or more accurately, the BAT Conclusions within them) form a legal backstop that regulators use to form the basis of permitting conditions for installations that fall under the Industrial Emissions Directive (IED). These include the likes of gas-fired power stations, intensive pig and poultry units and steelworks. More generous limits can be set in permits, though only in certain rare circumstances.
The existing four-year deadline to implement BAT after conclusions are published, alongside the way that derogations are granted, would be maintained.
4 The proposed process
Two new oversight bodies, the ‘Standards Council’ and the ‘Regulators Group’ would be established, with a series of working groups under them. This is very similar to the EU setup.
The ‘Standards Council’, composed of representatives of central and devolved government, would oversee the regime and set the timetable for revising BAT Conclusions.
The Regulators Group under it, composed of the Environment Agency, Natural Resources Wales, Northern Ireland Environment Agency, Scottish Environment Protection Agency and offshore oil and gas regulator OPRED, would develop and review technical principles and oversee technical working groups.
These working groups would draft the new BAT Conclusions, led by experts from the regulators and including voices from industry and other interested parties – such as environmental NGOs. They would also review EU BAT Conclusions and similar guidance from elsewhere.
The development of new BAT Conclusions would be subject to an initial call for evidence and a final public consultation once a draft is drawn up.
5 The consultation paper was unusually terse
The paper was oddly short, coming in at only 18 pages long. It committed the UK to maintaining BAT as the basis for setting environmental permits, ensuring an “open, transparent and collaborative approach with stakeholders” and recognised the importance of maintaining stable policy. It also said that existing BAT Conclusions and permitting determinations will continue to be recognised and sectors considered under the new regime will remain consistent with the IED framework.
6 A compromise with Scotland?
The Scottish government’s intention to maintain alignment with EU environmental law has posed a challenge. In November, it said that it would “ensure that EU standards and principles relating to emissions of air pollutants continue to apply in Scotland”. The prospect of separate regimes across the border with England was earlier dismissed as “bonkers” by a DEFRA official, though Holyrood responded that it was an answer to “the threats to environmental standards that EU exit poses”.
The paper was not entirely clear how the dispute will be resolved. Some aspects of BAT may be different in Scotland in due course, as the power to define it is within its devolved competence.
7 EU BAT will still apply in Northern Ireland (to an extent)
Installations that feed into the all-island Single Electricity Market will continue to be regulated under the EU regime, as a consequence of the Northern Ireland Protocol to the Withdrawal Agreement.
8 Radical change?
Guidance issued for England and Wales in 2013 says that emission limit values in permits should be set at the least stringent end of the range provided in BAT Conclusions. However, it looks like the Environment Agency and Natural Resources Wales will soon be given more leeway to “select the most appropriate value” within the range, the paper said.
Reviews for industrial sectors would open six years after the last. There is no such rule in the EU regime.
But more fundamental change could be round the corner. The consultation sought views on more long-term change that could extend compliance with BAT to smaller installations, which are generally regulated for emissions to air alone (known as ‘Part B’ in England, Scotland and Wales and ‘Part B and Part C’ in Northern Ireland).
The ‘pollution bubbles’ that formed part of the long-defunct Integrated Pollution Control regime, in force before Integrated Pollution Prevention and Control was introduced, could also be resurrected. Rather than limiting emissions from individual stacks, such as those found at an oil refinery, they would be controlled at the installation level instead. This may be cheaper to implement.
The paper further stated that, “Future considerations of best available techniques development could also explore the links to broader ambitions relating to net zero, the circular economy and reduction of use of natural resources, in a more holistic way.”