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Free 2.1 Law Essay: (Masters Level)

Critically evaluate the validity of the following statement by reference to appropriate case law in relation to European Union waste and/or water law. " Implementation and enforcement of environmental legislation go to the heart of Community policy. But Community environmental legislation is being widely disregarded and the Community has paid insufficient attention to how its policies can be given effect, enforced or evaluated". (House of Lords European Communities select Committee, Second Report 'Community Environmental Law, Making it Work, July 1997).

This assignment will explore the European Policies on Waste disposal and their implementation into domestic laws. It will consider whether or not these laws are being adhered to by member states or whether they are simply being disregarded. It will conclude that these laws and directives are not being followed as they should be, however it will argue that this is not necessarily because of a desire to disobey. This assignment will consider that the complexity of the legislation is the reason for the failure of member states to follow these laws and conclude that European Law should be simplified.

The Annual Survey of the Implementation and Enforcement of Community Environmental Law published in 1999, for the years 1996-97 indicates that most of the problems with the Waste Framework Directive involve its application. This is presented as being at the root of the large (though reducing) number of complaints primarily concerned with the dumping of waste, ' ... proliferation of uncontrolled dumps, controversial sitting of planned controlled tips, mismanagement of lawful tips, water pollution caused by directly discharged waste' . This is seen as bound up with the inadequacies of waste management planning throughout the Community: the Commission decided in October 1997 to take infringement proceedings against all member states except Austria in this respect. The practical robustness of EC waste law and its adequate and even handed enforcement will be put to the test within the enlarged European Union of the next decade.

Environmental assessment shares some characteristics with self-regulation in that underlying legislation on the subject such as the European Community Directive concentrates on procedural requirements rather than defining precise goals. In Environmental Assessment and Judicial Approaches to Procedural Errors, Karl-Heinz Ladeur and Rebecca Prelle demonstrate how this key feature of environmental assessment has posed particular challenges to the implementation of the Directive in Germany where principles of judicial review have been more concerned with substantive results rather than procedural compliance. He argues that in future courts should develop more coherent and consistent European approaches towards judicial review based on comparative analysis, and he considers case law on environmental assessment in the United States, France and the United Kingdom. In this context, he is particularly interested in last year's decision of the House of Lords in Berkeley (analysed by William Upton in Volume 13(1)). For a common law lawyer, his analysis may appear at times conceptually demanding, but it is a rewarding and subtle approach and, against a background of developments in Community environmental legislation which are focused as much on process as result, his concerns have a wider significance well-beyond environmental assessment.

Fundamentally waste disposal is fairly straight forward, its aims are to reduce the amount of waste that is produced, recycle what can be recycled and that that cannot be recycled should be disposed of in a way that causes the least harm to the environment. At its root, waste policy should be simple. However as Tromans points out "these principles, which can be stated so simply, have given rise to a body of EC and national law that is notoriously difficult, even for specialist lawyers and which-even for such lawyers-makes little sense in terms of some of its points of detail ."

Tromans identifies five reasons why the translation of waste policy into workable law has proved so difficult a task.

1. The regulation of waste can involve the regulation of traded materials, changing hands for large sums of money on an international basis. There is accordingly a tension with principles favouring the free movement of goods.
2. Waste is an emotive subject. The public perceives activities which involve the management of waste in a qualitatively different way to those involving other types of materials. To categorise a material as waste has consequences for the public acceptability of facilities handling that material.

3. It is relatively straightforward to keep a check on the production and transfer of goods, obtaining reliable statistics on how much waste arises, is recovered and is disposed of is difficult. The difficulty is compounded by inconsistent approaches to the categorisation and listing of types of waste.

4. A number of member states have promoted strong-even aggressive-policies on recycling. Such policies have the potential to cause difficulties in terms of movement of goods or the markets for recycled or recyclable materials. To some extent therefore, the Community's hand has been forced in respect of the development of legislation, leading to difficult legislation born of political compromise.

5. Waste regulation is inevitably a wider subject than simply the European Community. EC law has sought to take account of and build on the decisions of the OECD on transboundary waste movements, and the Basel Convention and other conventions. The assimilation of these instruments as been a strongly complicating factor

In addition to these difficulties is the rationale behind some of the policies that have been introduced into the community. The formation of the original Community Strategy for Waste Management in 1989 came at a time when the focus within the Community was on the creation of the single internal market . However the practical realities prevailed, and the September 1989 Strategy recognised in formulating the proximity principle that the need to protect the environment may involve restricting waste movements. This tension has continued to generate difficulties, in particular in relation to material for recovery, where the arguments for free movement are-as we shall see later-much stronger than for disposal, and where recovery activities have for long been an important part of the international economic system.

Another difficulty with the control of waste is the stigma which attaches to it. It is a reality that waste carries with it a stigma, regardless of the hazards which it may actually present. People and businesses do not wish to have waste facilities near them. This is no doubt due in part to the unpleasant effects on amenity which certain types of waste treatment and disposal can produce. It is also due in some measure to concern as to the possible health effects of exposure to emissions in whatever form from such facilities. But it is also undoubtedly due to the resentment deriving from being required to bear the consequences of the disposal of materials which others have previously benefited from, and now wish to be rid of.

Waste is one area where a full understanding of EC law is difficult without an appreciation of the relevant wider international context. This is most obviously so in relation to transfrontier movement , but wider influences can also be seen on issues such as the definition of waste. In particular, the influence of the work of the OECD and of its Waste Management Policy Group is marked. It was OECD Recommendation C(76)155(Final) which formulated the waste hierarchy of reduction, recovery and disposal before the OECD's focus of attention shifted to transfrontier movement in the 1980s. Of particular relevance here are the OECD Council Decision on Transfrontier Movements of Hazardous Wastes C(88)90(Final), and the Decision Concerning the Control of Transfrontier Movements of Wastes Destined for Recovery Operations C(92)39/Final. Decision C(92)39 formulated the Green, Amber and Red Lists of wastes which were adopted by the EC for the purposes of transfrontier movements, while Decision C(88)90 provided the International Waste Classification System (IWIC), containing the 'Q', 'D' and 'R' lists of reasons why materials are intended for disposal, disposal and recovery operations, an approach followed by the revised Waste Framework Directive. The OECD's work in progress on transboundary waste traffic also provided the basis for the drafters of the Basel Convention. n32

The high level of similarity in the parallel approaches of the EC and OECD is explicable by the close involvement of the EC Commission and EC member states in the OECD's work. Like the EC system, the OECD approach distinguishes between disposal and recovery activities, and the OECD approach can be seen to have influenced the EC law in this area. The symbiosis between the OECD, EC and Basel systems can be seen to have been mutually influential, and the relevant interrelationships will no doubt continue to influence future developments. The difficulty can come where elements of one regime are incorporated into another without adequate consideration of the knock-on effects.

The biggest difficulty with the regulation of Waste Management in the EC is the problem with definition and thus is worthy of further attention. Waste management in EC law is regulated by an increasingly complex network of legislation at both Community and national level. All of it rests upon the fundamental concept of the meaning of waste as defined in the Framework Waste Directive Despite its crucial role in the regulatory scheme, however, the definition of waste has inherent difficulties that have been the subject of considerable academic commentary and judicial consideration.

Two sets of provisions delineate the scope of the Directive. First, Article 1 contains the definition of waste. Second, Article 4 requires Member States to ensure that waste is recovered or disposed of without threat to human health or the environment. Disposal operations and recovery operations are listed in Annex IIA and IIB respectively, and indicate the processes that are intended to be subjected to Article 4. It should be noted that Article 4 refers to the term 'waste' and is therefore dependent on Article 1 for the definition of that term.

The definition of waste in Article I contains two elements. The first comprises 'any substance or object ... which the holder discards or intends or is required to discard '. The second is the requirement that the substance or object falls into the categories set out in Annex I. These categories are of a type that are likely to be discarded, such as residues , off-specification and date-expired products , contaminated products , and so on. They are therefore not identified according to the level of damage they might inflict but rather according to the likelihood of their holders wishing to get rid of them. The notion of discarding is therefore implicitly emphasised in the types of categories identified. Discarding becomes absolutely crucial in the final category which refers simply to 'any materials, substances or products which are not contained in the above categories '. The importance of the subjective element of waste is clearly illustrated here, since anything at all which is discarded qualifies as waste.

Given the important role of the concept of 'discarding' in the Directive meaning of waste, it is surprising that the term is not defined. No definitive conclusion can be drawn from the disposal and recovery operations described in Annex II, because there is no substantive connection between them and the definition contained in Article I. This lack of connection between the definition of waste and the operations listed in Annex II can be explained by the existence of two different regulatory objectives contained in the Directive. First, there is an attempt to define waste based on its potential danger to the environment and for which specific legislation will be required to accommodate a wide range of situations in which waste might occur or require controlled handling (Article 1). Second, and conceptually separate, the Directive specifies certain waste-handling processes that Member States must regulate according to the general principles contained in the Directive.

The question that has arisen is whether discarding can be inferred from the carrying out of a disposal or recovery operation, or whether an act of discarding must be independently established before applying Article 4 to a disposal or recovery operation. The normal meaning of the word 'discard' includes the act of getting rid of an object in the sense of disposing of it, but this cannot by itself give a complete answer. Looking at the Directive as a whole, it seems reasonable to assume that Annex II can offer indirect aid to the interpretation of Article 1. Annex IIA comprises a list of disposal operations and, given the significant overlap between the meaning of the words 'discard' and 'dispose', it can be assumed that these are operations by which substances may be discarded for the purposes of the Directive.

The Court of Justice has taken a typically cautious approach to these questions. It has proved to be exceptionally difficult to define the term 'discard' although it remains crucial to the definition of waste. An examination of recent case law demonstrates the problems the Court has experienced in ensuring that the objectives of the Directive are protected while attempting to avoid the problem of over-regulation.

The Court has been asked to rule on whether the concept of waste should exclude objects that possess economic value, are listed on commercial trading lists or which are dealt with as part of a continuous commercial cycle. Such objects do not easily fall within the normal meaning of the term 'discard', but the Court in Tombesi took the view that the Directive could not be read so as to exclude them. Although the Court was restating settled law , it also relied on the existence of Annex IIB and the resulting inference that 'discard' can include RRR operations . From a regulatory point of view, it would be undesirable to exclude such waste altogether because of the uncertainty as to whether a market would always be available for recovered substances and the likely volatility of that market. Since this would be affected by a number of circumstances out of the control of the original producers, such as the price of the equivalent raw materials, it would render the scope of regulation unacceptably unpredictable. These arguments support the idea that 'discard' means something more than merely getting rid of something worthless. AG Jacobs, in a lengthy opinion, went further. He put forward the view that it was not worth trying to interpret the term 'discard' according to its normal meaning. Instead, he suggested that the term 'waste' and the disposal and recovery operations listed in Annex II should be read together, and that the term 'discard' should therefore be accorded a special meaning defined by reference to those and analogous operations .
There are several difficulties with this approach. First, it conflicts with the fact that Article 1 specifies discarding as a precondition to the existence of waste. The occurrence of an Annex II operation, whether it be disposal or recovery, can only give rise to an inference that discarding has taken place. AG Jacobs himself recognised that his interpretation was circular . It does not seem reasonable to assume that this was the intention of the drafters in the absence of cogent textual evidence, nor does it make for regulatory clarity or efficiency. AG Jacobs also acknowledged that his reasoning made it difficult to distinguish between RRR and a normal industrial process because any operation falling under Annex IIA and IIB would automatically constitute discarding. Waste recovery and the mere integration of secondary raw material into normal industrial processes would be indistinguishable for the purposes of the Directive . This interpretation would therefore reduce the effectiveness of the regulatory framework by making it difficult to identify the regulated object.

AG Jacobs attempted to avoid these pitfalls by introducing a condition that discarding would only occur under Annex IIB in the case of a special recovery operation. This would exclude substances that were merely transferred to another person in their existing state and put to continued use . But such a situation could still be dangerous to the environment if the transfer was handled carelessly or at minimum cost. It is also difficult to see how the distinction between a material simply reused and one which has undergone a recovery operation can be reconciled with the fact that the list in Annex IIB explicitly includes reuse of certain items .

Despite its evident reluctance to exclude substances from the definition of waste, the Court made the point that there was a distinction between recovery of waste under the Directive and 'normal industrial treatment of products which are not waste'. The difference between these processes would therefore depend on whether the substance involved had been previously been classified as waste. Since the meaning of waste depends upon the term 'discard', it must logically have a meaning which is independent of the recovery operations listed in Annex IIB. However, the question of the exact relationship between the definition of waste, Article 4 and the Annex II operations was left unanswered.

The Court has recently begun to develop more explicit reasoning on three issues: whether the meaning of discard is coterminous with the operations described in Annex II, when a waste ceases to be waste after the completion of a recovery operation, and the wider application of the Directive on the grounds of environmental protection.

In the case of ARCO, the Court reaffirmed that the condition of discarding was central to the definition of waste. Although it was possible to infer discarding from the carrying out of an Annex II operation, not every substance that underwent a recovery operation would thereby be classified as waste. The view taken by AG Jacobs in Tombesi and the court in Mayer Parry Recycling Ltd v Environment Agency that the term 'discard' should be defined by reference to Annex II can therefore no longer be sustained . In support of its view, the Court of Justice pointed out that certain recovery operations could equally apply to the use of raw materials. This is consistent with its statement in Inter-Environnement Wallonie that there should be a distinction between waste recovery and normal industrial processes. In addition, the Court noted that discarding might take place in circumstances not specified in Annex II. Thus discarding might be inferred from the fact that the substance was treated by a common method of waste recovery, or that the substance was commonly regarded as waste. The Court also suggested that there might be evidence of discarding if the substance constituted a residue or by-product for which no use other than disposal could be envisaged, or if its composition was not suitable for the use made of it.
One of the disputes in ARCO concerned a process in which wood containing toxic substances was reduced to wood chips, then ground into powder which was finally used for fuel. The question was at what stage the wood could be said to have been fully recovered and therefore no longer classified as waste. The Court dealt with this in two ways. First, it pointed out that even where waste had undergone a complete recovery operation so as to have acquired the same properties and characteristics as a raw material, it would still be regarded as waste if the owner discarded it. Logically, this means that a complete recovery takes place but is followed by a further and separate act of discarding (although a previous intention to discard will make this process seamless). Second, the Court appeared to accept that the purpose of an RRR operation was to produce a substance equivalent to a raw material. In this case, the toxic substances remained in the wood even after it had been reduced to powder. The Court had previously stated that the potential for environmental harm associated with processing a substance was not relevant to determining whether it was waste. In ARCO, however, the Court said that an object could continue to be waste if the recovery operation did not result in a product 'analogous to a raw material, with the same characteristics as that raw material and capable of being used in the same conditions of environmental protection'. Thus the risk of environmental danger appeared to be relevant in deciding whether a substance (already classified as waste) was no longer waste as a result of going through a recovery operation. Once the RRR operation had started, the substance would remain waste at least until it had been turned into the equivalent of a raw material and possibly with the same or lower risk to the environment.

An example of these difficulties can be seen in Castle Cement v Environment Agency , where waste was reprocessed to make a fuel (Cemfuel) for use by the cement industry. The applicant argued that the fuel was not waste for the purposes of the Directive because it was the equivalent of a raw material, whereas the Agency argued that the burning of the fuel represented part of the recovery process. Stanley Burnton J held that the fuel remained waste on grounds that reflected the two arguments used by the Court of Justice in the ARCO judgement. First, the act of burning was seen as a clear act of discarding, although it should be noted that this reasoning does not by itself answer the question of how one is to distinguish between the burning of recycled materials and raw materials. The second ground was the need to ensure the effectiveness of the Directive. On this point, Stanley Burnton J suggested that 'the production process used for Cemfuel is not sufficient to cause its constituent parts to cease to be waste' in that they still existed even though in a different form. It is difficult to see how this reasoning can allow a recovery operation ever to be complete, an outcome that is surely not intended by the Directive. More pertinently, however, he also pointed out that Cemfuel was potentially harmful to the environment, a fact which meant that 'the regulation of the holding and use' of Cemfuel under the Directive was 'appropriate', and that to hold otherwise would undermine the effectiveness of the Directive.

It is a sophisticated and infuriatingly complex system, at least partially for the reasons explained above. It is a system that can certainly lead to dangers of obfuscation, national inconsistency. It is in some respects a nave system as to the practical realities of implementing its objectives, standards and requirements.. Given the immense variety of movements of materials, by-products and residues within Europe and globally, it is probably impossible to arrive at a general definition that will give certainty in all circumstances. It is also fair to say that in comparative terms, EC waste regulation (like the Basle and OECD systems) is in its early stages, and that some of the difficulties experienced reflect this, and will not figure so prominently in the long term. Equally, there is no doubt that EC waste law has in many countries raised standards and resulted in potentially harmful activities being better regulated and controlled. If EC waste law can deliver these results, then its messiness in certain areas and absurdities in others may be excusable. But as the law becomes more ambitious and more complex, so it will face a harder task to deliver its objectives.

Bibliography

Legislation

Directive 75/442/EEC,
Directive 91/156/EEC, OJ [1991] L78/32

Cases

ARCO Chemie Nederland Ltd et al v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer et al [2000] ECRI-4475

Case C-359/88, Zanetti and Others

Euro Tombesi et al. [1997] ECR I-3561; Case C-129/96

Inter-Environnement Wallonie ASBL v Region Wallonne [1997] ECRI-7411; Joined Cases C-418/97 and C-419/97

R v Environment Agency ex parte Mayer Parry Recycling Ltd (No 2) [2001] Env LR 35
Journal Articles

Notaro N, (2000), "The New Generation Case Law on Trade and the Environment"25 EL Rev 467

Smith J T, (1993) "The Challenges of Environmentally Sound and Efficient Regulation of Waste: The Need for Enhanced International Understanding", 5 Journal of Environmental Law 91-107

Tromans S, (2001) "EC Waste - A Complete Waste?" Journal of Environmental Law 13 133

Consultation Papers

Annual Survey of the Implementation and Enforcement of Community Environmental Law published in 1999, for the years 1996-97

OECD Waste Management Policy Group, Final Guidance Document for Distinguishing Waste from Non-Waste, ENV/EPOC/WMP(98)1/REV1, 2 July 1998, para 43

Books

Bell & McGillivary, (2000) "Environmental Law" Fifth Edition, Blackstone Press
Kellow A,(1999) "International Toxic Risk Management" Cambridge University Press

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