18/19, J.McBride, ‘Life in Plastic, It’s (Not So) Fantastic: An Assessment of EU and UK Policies in Response to Plastic Pollution’

Author: Jade McBride

 

  1. INTRODUCTION

 

Plastics were once considered a benefit to society, helping “free people from the social and economic constraints imposed by the scarcity of natural resources.”[1] The 20th century opened the door to mass production of plastics, particularly in the 40s and 50s. The use of plastics has changed over the years, with a third of production used for disposable packaging such as single-use plastics.[2] Moreover, since the beginning of the 20th century, the production and consumption of plastics have significantly increased: 288 million tonnes of plastics were produced worldwide in 2013 alone.[3] This can have drastic consequences on the environment, causing concerns for human health and animal welfare. In this article, I intend to set out the framework of policies focusing on the management of plastics in the UK and EU. I will determine whether national or regional policies are better placed to deal with plastic pollution. Furthermore, as the UK and EU have recently published strategies encompassing this environmental concern, I also intend to analyse and compare the strategies in order to gain insight into future regulation of plastic pollution. I argue that the UK government’s current policy framework is more effective than the principles-based approach taken by EU measures. However, the UK’s plan on future regulation is inferior to the EU’s strategy due to its lack of legislative force.

 

  1. EU MEASURES

 

(1) Directive 2008/98/EC on waste and repealing certain Directives (Waste Framework Directive)

The Waste Framework Directive (hereinafter ‘the WFD’) aims to “protect human health and the environment against harmful effects caused by the collection, transport, treatment, storage and landfilling of waste.”[4] In order to meet this objective, the WFD enlists principles to be applied by Member States when dealing with waste in the EU. The first principle is Extended Producer Responsibility (hereinafter ‘EPR’). EPR is enshrined in Article 8 of the WFD, whereby States are permitted to enact legislation, or create non-legislative measures, to ensure producers are taking responsibility when managing waste. Furthermore, the WFD also stipulates the polluter-pays principle,[5] a prominent principle used in the field of environmental law. In the context of the WFD, the costs of waste management are the responsibility of the original waste producer.[6] Producers are therefore more likely to keep waste to a minimum where this principle is imposed. The WFD also sets up a five-step hierarchy, placing significant focus on the prevention of waste packaging, followed by other methods such as reuse, recycling and safe disposal.[7]

 

Whilst it is clear the WFD sets up a comprehensive scheme for waste management generally, the lack of substantive provisions on plastics is evident. Plastics are briefly mentioned in the context of re-use and recycling, whereby the WFD sets out recycling targets to be achieved by 2020. This includes a recycling target of 50% from household waste.[8] However, this target is measured in weight; and with plastic being a light material, Member States are more likely to meet the target with heavier materials, such as metal and glass (which are also part of the target). Therefore, whilst the inclusion of plastic in the WFD’s recycling target is a sign that the EU is looking to reduce plastic waste, the inclusion of heavier waste materials diverts attention from plastic waste management. Furthermore, as the WFD’s target of 50% only encompasses household waste, the scope should be extended so as to allow Member States to look at commercial waste.

 

(2) Directive 94/62/EC on Packaging and Packaging Waste

The aim of this Directive is enshrined in Article 1(1): through harmonisation of ‘measures concerning the management of packaging and packaging of waste’, it ensures a high level of environmental protection for both EU Member States and third countries. The Directive focuses on recovery and recycling of packaging waste and thus slightly differs from the WFD.

 

The scope of the Directive is broad, covering “all packaging placed on the market in the Community and all packaging waste, whether it is used or released at industrial, commercial, office, shop, service, household or any other level, regardless of the material used.”[9] It is therefore clear the scope extends to plastics in the EU. It also encompasses waste outwith the household – an improvement from the WFD. Plastics are provided for in the context of recovery and recycling,[10] with a target of 22.5% set for plastics for the recovery of packaging materials.[11] This relatively low target has been criticised, it being argued that the targets are in need of an update.[12] Arguably, a higher percentage would be welcomed to allow consistency across EU legislation regulating the recycling of plastic, particularly as the WFD imposes higher targets for recycling.

 

Whilst the scope of the Directive does encompass plastics, the Directive has very little to say about plastic pollution specifically. There are no detailed measures for plastic pollution such as measures to combat single-use plastics within the EU. Instead, the Directive is similar to the WFD as it sets out general aims and objectives of packaging waste.

 

(3) Directive 2015/720 as regards reducing the consumption of lightweight plastic carrier bags

Directive 94/62/EC has been subject to many amendments since its adoption, the latest of which is the 2015/720 Directive. Whilst this Directive was not enforced until 2015, assessments and consultations on the effects of single-use plastic carrier bags began as early as 2013, highlighting the lack of (and thus a need for) legislation regarding plastic carrier bags.[13]

 

The Directive provides for EU Member States to take measures to “achieve a sustained reduction in the consumption of lightweight plastic carrier bags.”[14] The Directive provides two ways in which Member States are to ensure this reduction. The Member State can either adopt their own measures which are to have the effect of reducing consumption levels to 90 lightweight plastic carrier bags per person by 31 December 2019 and 40 by 31 December 2025; or adopt legislation placing a charge on lightweight plastic carrier bags.[15] The latter initiative is likely to prove more popular amongst Member States as it offers a quicker and more effective way of ensuring a reduction in the consumption of lightweight plastic bags. Furthermore, the obligation for Member States to conduct a life cycle assessment[16] of lightweight plastic carrier bags will inevitably prove effective in meeting the Directive’s objectives, as it provides the EU an opportunity to develop new, innovative ways of combatting plastic pollution, especially if such assessments conclude that the Directive’s provisions are inadequate.

 

Furthermore, the Directive focuses on plastic carrier bags below a thickness of 50 microns,[17] as these plastic bags were (and still are) more of a concern than other types. It has been recommended the Directive should also include provisions on the reduction of heavyweight plastic bags.[18] Even though these were not as widely used as their lightweight alternative (at the time of proposing this Directive), amending the Directive to reduce the number of heavyweight bags used would additionally contribute to combatting the problem of plastic pollution within the EU. Despite this minor criticism, this is one of the first pieces of EU legislation specifically targeting the environmental concern, rather than establishing a principles-based approach. The policy objectives of this Directive should therefore be particularly commended.

 

  1. UK MEASURES

 

(1) Plastic Bag Charge

Scotland has followed Wales (2011) and Northern Ireland (2013) by introducing legislation on single use carrier bags.[19] The Regulations came into force on 20 October 2014 and therefore prior to the enactment of Directive 2015/720. The Regulations provide that suppliers must charge no less than 5 pence for a single use carrier bag.[20] It is also possible for a fine to be imposed on a supplier who has failed to charge a consumer for a carrier bag.[21] The introduction of a bag charge in Scotland has proved to be effective, with 650 million fewer carrier bags in 2014-15.[22]

 

England is the latest country in the UK to enact legislation on single use carrier bags. The Single Use Carrier Bags Charges (England) Order 2015 came into force on 5 October 2015, introducing the same charge as the Scottish 2014 Regulations. Like Scotland, there has been a significant reduction (83%) in the number of bags issued in 2016-17 in comparison to 2014.[23] It is clear such charges are effective in reducing the circulation of lightweight plastic bags in the UK and such legislative efforts are making a positive contribution to reducing plastic pollution. Interestingly however, the Order only applies to suppliers with an employment force of 250 or more[24] – smaller retailers are therefore exempt from the provisions.

 

(2) Microbeads Ban

Microbeads are most commonly found in cosmetic products and are having a significant impact on the environment, contributing to approximately 80% of the total plastic litter in the marine ecosystem.[25] Whilst there are no specific legislative provisions on microbeads at EU level, the UK has introduced a nationwide ban on microbeads – ‘a landmark step’ in the field of environmental policy.[26] The ban on the manufacture of products containing microbeads was enforced from 9 January 2018.  Prior to the adoption of the ban, a number of cosmetic companies had already committed to ‘phasing-out’ the use of microbeads in their products. The advantage of a nationwide ban however is the guarantee of consistency across the whole market. However, during a call for written evidence on the environmental impact of microplastics, the Department for Environment, Food and Rural Affairs (hereinafter ‘DEFRA’) recommended that such a ban would only have a minimal impact on the broader issue of microplastics.[27] Whilst this may be true, it can certainly be said that the ban is another example of the UK government creating progressive policies with regards to plastic pollution. This is to be compared to EU efforts, since there is no equivalent for EU Member States to comply.

 

(3) A Single-use Plastics Tax?

Since the success of plastic bag charges across the UK, it is clear the government are trying to tackle the issue of plastic pollution in other ways. The Treasurer made it clear in his spring statement (issued on 13 March 2018) that the government will call for evidence for solutions to plastic pollution.[28] In particular, the Treasurer suggested the tax system would be useful to achieve this objective. The Treasurer’s discussion regarding plastic charges was however rather vague, as it did not mention specific plastic products to which a possible tax would be subject. It is likely the scope of such a tax will not be known until the results of the consultation are published. However, products like straws, cotton swabs and coffee cups are likely to be subject to the tax. Such products have been the recent topic of extensive criticism in the UK media.[29] Moreover, a single-use plastic tax is likely to succeed in the UK, not only because of the success of the 5p charge of plastic carrier bags, but also due to the changing behaviour of consumers towards single-use plastics, owing to coverage of the effects of plastic pollution from popular television programmes like Blue Planet II.

 

  1. THE FUTURE OF PLASTICS: UK v EU

 

The UK published its 25-year environmental plan on 11 January 2018,[30] with the EU’s plastic strategy following days later on 16 January 2018.[31] Starting with the EU’s strategy, the document creates the building blocks to support a new plastics economy and establishes action points to be implemented at a regional level. In particular, the EU has vowed that all plastic packaging on the EU market will be recyclable by 2030,[32] a much more ambitious target than the UK’s goal of 2042.[33] In order to implement this commitment, Directive 94/62/EC will have to be amended to enshrine the new requirements to make all plastics recyclable. The Directive will also give this goal legal standing and therefore Member States will have to comply. This will inevitably ensure one of the key goals of the strategy is met.

 

Even though Member States, like the UK, have made their own efforts to develop bans on microplastics, this could have the effect of creating friction within the internal market. Creating restrictions at EU level would therefore ensure consistency across the entire Union. As such, the European Chemicals Agency has recently announced proposals for a ban on “intentionally added” microplastics.[34] This will cover more materials than the current UK ban, such as makeup, moisturisers and detergents.

 

Looking at the EU strategy as a whole, it has been subject to minor criticism. Karolina Skog, Sweden’s environment minister, stated the department “had hoped for more concrete action and more concrete legislative measures.”[35] Whilst it may be true that the strategy falls short of detailing specific legislative instruments, there is no doubt that the EU is committed to providing more legislation on plastic pollution in the future.

 

Conversely, whilst the EU strategy specifically focuses on plastics, the UK’s plan looks at a broader range of environmental issues, encompassing the issue of plastic pollution. As stated above, the plan provides the goal of “eliminating all avoidable plastic waste by the end of 2042.” The use of the word ‘avoidable’ however is slightly confusing – if the plastic waste is ‘avoidable’, why can’t it be eliminated now? Since the Treasury has released a proposal on other forms of single-use plastic only recently, it could be argued that environmental policies in this regard take a long time to formulate and enact on a domestic level. Whilst the UK has set out a helpful timeline, the longer deadline of 2042 highlights the struggles to legislate immediately with regards to single-use plastics. This might explain why many of the plastic initiatives in the UK are not in the form of legislation. The plan also highlights the government’s intention to work with the WRAP to explore plastic-free supermarket aisles.[36] This proposal follows The Netherlands’ efforts in developing plastic-free supermarket aisles.[37] This will undoubtedly offer consumers an environmentally friendly alternative and add to the UK’s policy framework aimed at combatting plastic pollution.

 

Whilst the efforts found in the UK’s plan look promising, it has gathered much criticism. First of all, the plan is vague and no legislative action has been proposed. Whilst ambiguity is certainly present in the EU’s strategy, this is more so in the UK’s plan. The difference between the EU strategy and the UK plan is therefore that whilst the EU has more or less committed itself to amending and developing legislation, the UK’s plan is of a more voluntary nature. In order to make the UK’s plan binding, it has been suggested by The Wildlife Trusts that an Environmental Act be adopted for the goals of the plan to be realised.[38]  This would be the most effective way to ensure the UK plan is carried out to its full potential. Nevertheless, the aims of the UK’s plan should be commended as it highlights that the future of plastics within the UK is very much central to its overarching environmental policy.

 

  1. CONCLUSION

In sum, the variety of policies introduced by the EU and UK have been effective in responding to environmental concerns regarding plastic pollution.

 

By examining three EU Directives, EU measures on plastic pollution have had some success. Directive 2015/720 in particular has required Member States to implement a policy that will only serve to help reduce the use of single-use lightweight carrier bags in the EU. Looking forward, the EU should extend the Directive to encompass heavyweight plastic carrier bags as these also contribute to the issue of plastic pollution. However, Scotland, Wales and Northern Ireland, being part of the UK and thus party to the EU, had already implemented legislation to charge consumers for single-use carrier bags. Member States were already paving the way for increased legislation on plastic pollution without the EU’s input. Moreover, the WFD and Directive 94/62/EC do not specifically legislate on plastic pollution matters, concentrating instead on a principles-based approach to waste management in general.

In contrast, the variety of legislation and initiatives constituting the current UK’s plastic pollution framework highlight the UK government’s successful attempts to tackle the environmental issue of plastic pollution. This is evident through the implementation of revolutionary policies such as the ban on microbeads. By comparing the current efforts of the UK and the EU, it is clear that domestic policies are having more of a positive impact on the management and reduction of plastic pollution. By introducing plastic-specific policies, the UK are currently better placed to deal with the issues arising from plastic pollution. However, despite the UK’s current success, less can be said about its 25-year environmental plan. The UK’s discussion on plastics is rather vague and more importantly, non-binding. The UK should therefore seek to implement the plan on a statutory footing in order for the objectives of the plan to be realised to their full potential. Looking to the future, it will be important for both the EU and UK government to continue their work on preventing plastics pollution so as to ensure a healthy and stable environment for all.

[1] Science History Institute, ‘The History and Future of Plastics’, para 1. Available at: https://www.sciencehistory.org/sites/default/files/history-of-plastics.pdf.

[2] Thompson, RC. et al. “Our Plastics Age (2009) Philosophical Transactions of The Royal Society,  Volume 364, Issue 1526 1973-1976 at 1974.

[3] Sharma, S. & Chatterjee, S. “Microplastic Pollution, A Threat to Marine Ecosystem and Human Health: A Short Review(2017) Environmental Science and Pollution Research, Volume 24, Issue 7 21530-21547 at 21530.

[4] European Commission DG Environment, Plastic Waste in the Environment, Revised Final Report (2011) at 24. Available at: http://ec.europa.eu/environment/waste/studies/pdf/plastics.pdf.

[5] Article 14.

[6] Ibid.

[7] Article 4.

[8] Article 11(2)(a).

[9] Article 2(1).

[10] Article 6.

[11]Packaging and Packaging Waste Summary (2014). Available at: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=LEGISSUM:l21207&from=EN.

[12] These targets were set in 1994.

[13] European Commission, Proposal for a Directive of the European Parliament and of the Council Amending Directive 94/62/EC on packaging and packaging waste to reduce the consumption of lightweight plastic carrier bags (2013) at 2. Available at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52013SC0443&from=EN.

[14] Article 1(2).

[15] Ibid.

[16] Article 1(4).

[17] Article 1(1).

[18] Steensgaard, I.M. et al, “From macro- to microplastics – Analysis of EU Regulation along the life cycle of plastic bags” (2017) Environmental Pollution 224 at 296.

[19] The Single Use Carriers Bags Charge (Scotland) Regulations 2014.

[20] Ibid, r. 6(2).

[21] Ibid, r. 12(3).

[22] BBC News, ‘Plastic bag charge in Scotland sees usage cut by 80%’ (2015). Available at http://www.bbc.com/news/uk-scotland-34575364.

[23] Department for Environment, ‘Food and Rural Affairs, Single-use plastic carrier bags charge: data in England for 2016 to 2017’ (2017). Available at: https://www.gov.uk/government/publications/carrier-bag-charge-summary-of-data-in-england/single-use-plastic-carrier-bags-charge-data-in-england-for-2016-to-2017.

[24] The Single Use Carrier Bags Charges (England) Order 2015, Schedule 1(1).

[25] Sharma & Chatterjee, ‘Microplastic Pollution…’ (n 3) at 2153.

[26]DEFRA “World-leading microbeads ban takes effect”, (2018). Available at: https://www.gov.uk/government/news/world-leading-microbeads-ban-takes-effect.

[27]Written evidence submitted by DEFRA (2016) at 7. Available at: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/environmental-audit-committee/environmental-impact-of-microplastics/written/32100.pdf.

[28] HM Treasury, Spring Statement (2018). Available at: https://www.gov.uk/government/speeches/spring-statement-2018-philip-hammonds-speech.

[29] Perkins, A., “Cotton buds and plastic straws could be banned in England next year” (2018) The Guardian. Available at: https://www.theguardian.com/environment/2018/apr/18/single-use-plastics-could-be-banned-in-england-next-year.

[30] A Green Future: Our 25-Year Plan to Improve the Environment (2018). Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/693158/25-year-environment-plan.pdf.

[31] A European Strategy for Plastics in a Circular Economy (2018). Available at: http://ec.europa.eu/environment/circular-economy/pdf/plastics-strategy.pdf.

[32] Ibid at 5.

[33] A Green Future (n 33) at 86.

[34] Neslen, A “EU proposes ban on 90% of microplastic pollutants” (2019) The Guardian. Available at: https://www.theguardian.com/environment/2019/jan/30/eu-european-union-proposes-microplastics-ban-plastic-pollution.

[35] Ruiz, I. B., “Not enough action from EU on plastic” (2018) Deutsche Welle. Available at: http://www.dw.com/en/not-enough-action-from-eu-on-plastic/a-42178451.

[36] A Green Future (n 33) at 88.

[37] Beament, E., “Netherlands opens world’s first plastic-free supermarket aisle as UK urged to follow example” (2018) Independent. Available at: https://www.independent.co.uk/news/world/europe/plastic-planet-packaging-free-supermarket-ekoplaza-amsterdam-netherlands-recycling-pollution-a8232101.html.

[38] Gabbatiss, J., “Theresa May’s 25-year environment plan is fundamentally flawed and a long way off say green experts” (2018) Independent. Available at: https://www.independent.co.uk/environment/theresa-may-environment-government-flaws-science-plastic-pollution-michael-gove-speech-a8153536.html.

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