Keeping up to date with the changes in Environmental Law
*Due to the ongoing coronavirus pandemic this has now been delayed to October 2020. Updates are available on DEFRA's website.
The Environmental Protection (Plastic Straws, Cotton Buds and Stirrers) (England) Regulations 2020 comes into effect on 6 April 2020. It includes an interesting position statement by government on the importance of the consultation process, and the extent to which businesses need to track and risk assess the development of the law in advance of its formal release date. In the article below, SLR's Colin Malcolm looks into the ways in which businesses manage change in the environmental legislation framework, and the potential risks and opportunities it brings.
Manufacturing organisations in the food and drink sector must comply with a wide range of environmental laws, with a typical business having approximately twenty to thirty environmental laws requiring proactive compliance management.
Whilst managing day to day compliance with environmental law is a significant undertaking, there are other complex and time-consuming compliance actions organisations needs to perform. One of the most important of these is keeping up to date with changes to environmental law, and that the organisation is fully prepared for change in advance of the law coming into effect.
There are many different approaches organisations use to keep up to date with changes to environmental law, some of these are very effective whilst others are sometimes less so. There are also some organisations that due to resource limitations, staff competency or other matters, are not always fully aware of changes to legislation in advance of that law coming into effect.
Irrespective of the cause, organisations that do not effectively manage this process may expose their business to risk in many different ways. This includes but is not limited to:
- Direct regulator involvement from non-compliant activities (increased scrutiny, issue of sanctions);
- Impacts to existing client relationships (alignment, reputation, supplier framework performance etc.);
- Disadvantages during new client business development opportunities (environmental components of pre-qualification questionnaires, etc.);
- Not tracking and aligning the business with changing market conditions and customer perceptions;
- Business profile and market positioning;
- Financial impacts (market based legal instruments such as the single use plastic tax or producer responsibility packaging cost increases);
- Changes to operations, plant and equipment (i.e. substance restrictions / bans, packaging, plastics etc.); and
- Effectiveness of business strategy to capture and manage environmental risk and opportunity.
The Environmental Protection (Plastic Straws, Cotton Buds and Stirrers) (England) Regulations 2020 comes into effect on 6 April 2020 and places restrictions on the supply of plastic straws, cotton buds and drinks stirrers (amongst other requirements). It is an example of an environmental law that presents risk to the organisation in most of the above bullet points and particularly the business strategy. This is primarily because the main compliance actions typically require the coordinated involvement and collaboration of multiple departmental functions, such as; New Product Development, Research and Development, Procurement, Operations, Logistics, Sales and Marketing, and Finance. As a result, early awareness of this law coupled with effective internal and external communications is important if it is to be effectively managed. It is not an environmental law that can be managed by the independent actions of the environmental / sustainability specialist.
Whilst most organisations will be aware of this law and will have prepared for it in a timely manner, it is interesting to note and draw attention to the government’s approach on its implementation. Included in the explanatory memorandum is the following:
“Clause 1(2) of the draft instrument provides that most of its provisions come into force on the day after the instrument is made. In the Government’s view this does not infringe the principle that new legislation which imposes duties on people that are significantly more onerous than before, and requires them to adopt different patterns of behaviour, should not be brought into force on a date earlier than gives those affected reasonable chance to adapt to the changes required.
As explained more fully in paragraphs 10.1 to 10.5 of this explanatory memorandum, a policy consultation was held from October to December 2018, and the Government published its response on 22nd May 2019. The response stated the Government’s intention to bring a ban on plastic straws, plastic stemmed cotton buds and plastic drink stirrers into force in April 2020. This announcement was widely publicised in the national press, and Defra considers it reasonable to assume that businesses are aware of the Government’s intention to bring this change into force in April 2020”.
The above paragraphs clearly set out the government’s position that in their opinion, timely and relevant communication has been provided on this law in advance of its release. Furthermore, the government states that because of the early communication taken, the law should not be a burden to business even if some compliance requirements take effect on the date of release, rather than at a future time.
The government’s position on this law is therefore very interesting as it clearly places the responsibility for compliance on the organisation’s ability to track the development and progress of this law in advance of release. Whilst it could be argued that this approach presents risk to businesses when any environmental law is released, the impact becomes more pressing when compliance requirements directly influence products as it typically affects multiple departmental functions.
Whilst most organisations will have defined approaches for keeping up to date with environmental law, the introduction of this law should serve as a timely reminder for organisations to review the effectiveness of their methods and whether improvements are needed. Key actions for consideration include:
- How does your organisation garner knowledge on the future direction of environmental policy, the scope of issues under consideration and the release of information?
- Is there awareness of forthcoming environmental consultations and their indicative content, date of release and feedback timeline? Have relevant departments and individuals been made aware?
- Recognising that existing environmental laws that have been in force for some time can have delayed compliance requirements (i.e. restrictions on certain refrigerants from January 2020 under the Fluorinated Greenhouse Gases Regulations 2015 (as amended) etc.).
- Incorporating the ISO 14001 clauses 4.1 (Context) and 4.2 (Interested Party) in addition to the clauses directly addressing compliance.
- Defining an internal communication / change management strategy to support maximum engagement and buy-in from relevant departments.
SLR provides a range of environmental law compliance services including horizon scanning of environmental policy, consultations and their potential impact on business. Please feel free to get in touch if you would like to discuss any of the points raised in this article.