Overview
The European Commission has published proposals for a significant update to the Industrial Emissions Directive (IED), the principal legislative instrument for regulating pollutant emissions from industrial installations in the EU. The move is part of the EU’s Green Deal ambitions and in particular its zero pollution action plan.
The proposals retain the overall approach of the current IED, with a continued focus on reducing harmful industrial emissions using the ‘Best Available Techniques' (BAT) permitting process, of which we now have significant experience. The new rules will also preserve the existing mechanism used to determine BAT, known as the Sevilla process: a science-based information exchange involving industry, national and European Commission experts, and civil society, which sets mandatory emission limits.
Significant Changes Expected in the EU
Despite the retention of the basic IED framework, the proposed amendments are nevertheless significant, and will have real impacts for industrial operators, and industry and stakeholders are strongly advised to contribute to the consultation. The Commission’s proposed changes include:
- The Commission has identified that currently approximately 80% of permits tolerate operators adopting minimum values, rather than driving improvements. Going forward, further emphasis will be placed on assessing the feasibility of reaching the ‘best performance’ and using tighter pollutant emission limit values when revising permits or setting new permit conditions. There will also be a tightening of the rules on granting derogations by harmonising the assessments required, and securing a regular review of derogations granted.
- Efforts will be made to make the framework more forward-looking and innovative, including through the establishment of an Innovation Centre for Industrial Transformation and Emissions (INCITE). The idea is that innovation frontrunners will be able to test emerging techniques, benefitting from more flexible permits.
- By 2030 or 2034 operators will need to develop ‘Transformation Plans’ for their sites to achieve the EU's 2050 zero pollution ambition, circular economy and decarbonisation aims.
- There will be extensions to the IED's scope to additional livestock farming and industrial activities (including: all cattle, pig and poultry farms with over 150 livestock units; extraction (mining) of metals and industrial minerals; and ‘giga-factories’ for electro-mobility batteries).
- To increase transparency and public participation in the permitting process, the European Pollutant Release and Transfer Register will be transformed into an EU Industrial Emissions Portal where citizens will be able to access data on permits issued anywhere in Europe.
Notably, significant industry voices have already raised concerns about impacts on the competitiveness of the European industry and called for further clarity on a number of important aspects. See, for example, Cefic’s statement on behalf of the European chemical industry.
Impact on Environmental Permitting in the UK
The UK’s environmental permitting regime is now de-coupled from the (EU) IED, and future changes in the EU will not automatically be adopted. Nevertheless, legislators (both in London and the devolved administrations) will no doubt be reviewing the proposals closely.
England has its own 25 Year Environment Plan, which was placed on a statutory footing under the Environment Act 2021, and various changes to environmental permitting are anticipated to deliver its goals. Notable examples include:
- In September 2021, the government published its delayed consultation on moving abstraction and impounding licensing and groundwater investigation consents into the environmental permitting regime;
- The government announced in its Clean Air Strategy 2019 that it would extend environmental permitting to the dairy and intensive beef sectors by 2025, and would explore whether to introduce environmental permitting to reduce emissions from significant non-road mobile machinery, particularly in urban areas; and
- In March 2020, the Environment Agency (England) said that it would bring the storage, treatment and use of sludge and septic tank sludge into the environmental permitting regime in 2021. However, in July 2020, it was confirmed that this transition would be delayed until 2023.
The extent to which the UK decides to follow some of the more ambitious/forward-looking aspects of the EU proposals (such as measures to encourage best performance and innovation) is an issue to watch closely.
Steptoe’s environmental lawyers have extensive experience in all aspects of environmental permitting, regularly advising industry on a range of issues, including enforcement issues for non-compliance with permit conditions, BATs and derogations. We are also currently assisting a wide range of clients to navigate specific Brexit challenges related to legislative divergence. If you wish to discuss any of these issues in more detail, do please get in touch.
