PART 3 ANALYSIS OF THE PROPOSALS
(continued)
GENERAL
IMPLICATIONS OF
THE LANDFILL
DIRECTIVE
Effect on landfill
practice in the United Kingdom
56. There was widespread
support from witnesses for the objectives of the Directive in
seeking better standards of waste management, uniform and higher
standards of licensing and operation, closed site aftercare, implementation
reporting, etc. Many of these reflected what had long since become
standard practice in the UK. In fact, apart from Friends of the
Earth and the Commission, the principal interest groups-the sponsoring
Department, the regulatory agencies (the Environment Agency and
SEPA), the industry, local government, and the professional body-supported
the objectives of the Directive but were united in their opposition
to the prescriptive methods by which those objectives were to
be achieved. In particular, since the need to contribute to the
solution of the global warming problem by reducing methane emissions
was seen as the overarching aim of the Directive, witnesses felt
that Member States should have discretion to choose the most appropriate
measures to suit particular circumstances. We heard a consistent
defence of the British way of doing things, supported by the argument
that "modern" UK landfill practice fully met the objectives
of the Directive. The ESA followed up their oral evidence with
a detailed list of suggested amendments: we have not thought it
appropriate, particularly given the pace at which the draft Directive
is now completing its stages through the Council and the European
Parliament, to include a detailed commentary in this Report on
the ESA's proposals, but we note that in many instances they coincide
with our own views.
57. The general consensus
among witnesses for the Government, the regulators and industry
was well summed up by the Minister for the Environment, Mr Michael
Meacher, who told the House Commons European Standing Committee
A on 12 November 1997 that: "We are not convinced that
incineration before landfilling is necessarily more sustainable
than straightforward landfill in well-managed sites with good
quality methane capture. There are certainly situations in which
incineration with energy recovery makes sound environmental sense,
but it must be carried out to the strictest environmental standards
and must take place as part of an integrated strategy that encourages
the minimisation and recycling of waste. Frankly, the dash to
incineration required by the Directive would not allow for that,
which is a problem. Our preferred approach would be to remove
that part of the Directive. It would be more sensible to focus
on the environmental harm that the Directive aims to avoid-that
is, methane emission-in line with current regulatory practice
in the United Kingdom. It seems likely, however, that almost all
other Member States will accept the targets in principle. We may
therefore need to consider a compromise solution to impose targets
that can more sensibly be met."
58. A different overall
view of the Directive was presented by Friends of the Earth. Mr
Childs saw the Directive playing a positive role in reducing greenhouse
gases, and considered it should set targets for reducing all kinds
of waste currently landfilled. He suggested the Directive should
state explicitly that the preferred response to the reduction
targets was not incineration but recycling and composting, citing
a report by the US Environmental Protection Agency which concluded
that recycling was superior to incineration in terms of greenhouse
gas emissions and created more jobs. He did not challenge the
view that UK landfill standards were high in the international
context, but that did not invalidate the case-on precautionary
and sustainability grounds-for seeking to reduce dependency on
landfill (pp 51-2; QQ 135, 139). For the Commission,
Dr Krämer compared the likely effect of the proposed Directive
with what had been achieved by the 1980 Drinking Water Directive[36]
in terms of raising standards and stimulating investment across
the Community: "We believe that it is good to set standards
for landfill and it is high time to set relatively stringent standards....We
have to begin somewhere and pick up the challenge of environmental
impairment through landfill" (Q 282). The Energy from
Waste Association was similarly enthusiastic: "far from inhibiting
sustainable waste management in the UK and imposing unwarranted
additional costs, the Directive has the potential to be the single
most significant driver for the development of a new, sustainable
approach" (p 158).
59. The United Kingdom
waste management industry and the regulatory authorities have
good reason to feel proud of the high standards which have been
developed for landfill over the years, much assisted by the town
and country planning system-now in place for over half a century.
The case they put to us was well argued. When asked for comments,
however, on the contrary views held by Friends of the Earth, for
instance, and the Commission, we felt they were somewhat less
persuasive. Arguments about the merits and demerits of landfill
may never be resolved to everybody's satisfaction, but we are
in no doubt that substantial continuing use of landfill will remain
an essential element of the national waste management strategy
for many years to come.
Subsidiarity and
Proportionality
60. In its Explanatory
Memorandum, the Commission states that the proposal is compatible
with the principles of subsidiarity, in that it seeks to introduce
uniform standards for landfilling throughout the Community and
to eliminate distortions such as unnecessary transportation of
waste. It adds: "The introduction of limits for landfilling
of biodegradable waste...also represents a high level of respect
for the principle of subsidiarity....The proposal will allow Member
States flexibility in choosing which way the reduction targets
are to be achieved...in order to ensure that (they) can apply
the best option to meet their particular national conditions."
61. Whether the draft
Directive in fact passed the test of subsidiarity was much commented
on in evidence. The DETR, in its own Explanatory Memorandum, expressed
the view that "the proposal for limits on the amount of biodegradable
waste landfilled itself is unnecessarily restrictive of Member
States' freedom to continue the development of their own approaches
to reducing methane emissions from landfill". This view was
generally echoed by the industry. The issue, therefore, was whether
the prescribing of reduction targets (whilst recognising that
the methods of achieving them were for Member States) was itself
a legitimate action to be taken at Community level.
62. A number of witnesses
argued that all that was needed was proper implementation throughout
the Community of the Waste Framework Directive: the Institute
of Wastes Management (IWM) felt that the Framework Directive already
addressed issues such as prevention or reduction of waste, recovery
and reuse, and avoidance of unnecessary transportation, and that
the UK waste management licensing arrangements had already provided
"a very positive framework" for all of this (Q 84).
Dr Krämer's response to this was that the purpose of
the Framework Directive was to lay down broad principles, including
the requirement for licensing and management plans, but that specific
Community standards were needed to raise the general standard
of landfill in the Member States and to provide a proper basis
for the Commission to monitor implementation and, where necessary,
to take enforcement action. "I simply do not see how it can
be argued that there should be sustainable waste management and
appropriate protection to the environment and any further details
should be left out for reasons of subsidiarity" (Q 280).
63. Some of the witnesses'
comments on subsidiarity and proportionality are reported elsewhere
in relation to particular aspects of the Directive, but a snapshot
of views may be helpful at this point:
* The proposals are broadly
acceptable in that Member States can decide how to reduce biodegradable
waste going to landfill, but they are not acceptable in terms
of meeting the objectives, notably methane emission reduction;
* they are widely seen as
disproportionately prescriptive: witnesses feel the Directive
should be concerned with how to landfill, not with what
to landfill;
* such prescriptiveness may,
in some cases, run counter to BPEO and sustainability;
* according to the ESA, the
Council's Ad Hoc Group on Climate considered the limitation of
waste inputs to be a costly and ineffective way of reducing methane
emissions (p 90);
* a key recommendation in
the Commission's Communication on methane reduction strategy (paragraph 49)
is the need for higher levels of methane recovery; but in relation
to global warming, biodegradable waste reduction could actually
work against the objectives of the Directive, by reducing methane
generation to volumes and rates at which recovery is impracticable
(methane and CO2 control is not possible during the
early and later phases of landfill site operation);
* the Directive is based
on the implicit belief that it must be environmentally preferable
to sort and pretreat the biodegradable components of municipal
waste rather than posttreat their breakdown products (leachate
and gas)-a proposition which may be true but is not necessarily
so, and has not been proven scientifically or economically.
64. The Protocol on
Subsidiarity and Proportionality[37]
attached to the Treaty of Amsterdam states inter alia that,
for Community action to be justified, the issue under consideration
should have transnational aspects which cannot be satisfactorily
be regulated by Member States; that actions by Member States alone
or lack of Community action would conflict with the requirements
of the Treaty (eg the need to correct distortion of competition);
and that action at Community level would produce clear benefits,
compared with action at Member State level, by reason of its scale
or effects. It goes on to make the point that Community measures
should leave as much scope for national decision as possible;
that care should be taken to respect well established national
arrangements and legal systems; and that, subject to the need
for proper enforcement, Community measures should where appropriate
provide Member States with alternative ways to achieve the objectives.
65. We recognise
the view of the waste management industry that some aspects of
the draft Directive are over-prescriptive and arguably contrary
to the principles of subsidiarity and proportionality, in the
sense that it focuses on the reduction of biodegradable waste
going to landfill as a particular means of achieving the broader
aims of Article 1. However in our view the industry's stance
has insufficient regard for the reality of policies and attitudes
in other Member States or for the mechanics of Qualified Majority
Voting (cf paragraph 20). These factors will continue to
influence the Environment Council's deliberations and the Common
Position which is due to emerge shortly.
66. Although there
may be some room for argument on whether the tests set by the
Amsterdam Treaty's Protocol have been fully met, we are satisfied
that the Commission's proposals are in principle consistent with
subsidiarity, if one takes into account the unquestionably transnational
nature of the global warming problem, the well established aims
of the Community in the environmental field, eg as expressed
in the Fifth Environmental Action Programme, and the justifiable
concern about the risks to the environment from continuing large-scale
disposal to landfill of untreated biodegradable waste, even in
well engineered sites. We would, however, qualify this by saying
that the overall timescale for change must be proportional to
the costs which the Directive would impose on Member States and
that there must be some flexibility for Member States to decide
when and how to meet the intermediate targets. We return to
these questions in paragraphs 93-7.
67. We have noted already
in paragraph 24 that it is only in the recitals that the Directive
explicitly mentions the need to tackle global warming by reducing
methane emissions as being one of the aims of the proposal. Although
it would not necessarily resolve the argument about proportionality,
we think it would be helpful if methane reduction as an aim
of the Directive were to be stated explicitly in Article 1.
For the UK at any rate it is a more significant policy aim than
the harmonising of standards for landfill management, which is
of more relevance to some of the continental Member States, where
standards may not be so high.
36
80/778/EEC, OJ No L229, 30 August 1980. Back
37
See glossary. Back
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