Legal challenge launched over exclusion of EfW from Emissions Trading Scheme

A legal challenge has been launched by an environmental campaigner against the UK Government on the grounds that it has unlawfully left out Energy-from-Waste (EfW) facilities from its post-Brexit Emissions Trading Scheme (ETS).

The application for judicial review was submitted by environmental campaigner Georgia Elliott-Smith and also includes a challenge to the government’s decision to roll forward carbon emissions allowances to future years, as well as to the setting of a cap on allowable emissions which will be above the level of “business as usual” emissions.

Smoke coming from incinerator chimneyElliott-Smith is represented by Leigh Day solicitors who have sent a pre-action letter to the government on her behalf.

The UK’s ETS, details of which were released on 1 June, is set to replace the EU’s ETS, which allows companies regulated by the scheme to trade carbon emissions allowances for a fee, financially incentivising companies to reduce their emissions.

Elliott-Smith and Leigh Day say the scale of incinerator emissions ignored by the UK ETS is “staggering” and “there will be no mechanism to account for, offset, or incentivise the reduction of emissions from incinerators”.

The legal challenge accuses the UK of failing in its obligations under the Paris Agreement, while focusing on the need to achieve net zero by 2050 instead.

Leigh Day argues that the two fundamental aspects of the UK commitments under the Paris Agreement that are relevant to Elliott-Smith’s claim are to seek to limit global temperature increases to 1.5 degrees celsius above pre-industrial levels and to reach peak global emissions and start to reduce them “as soon as possible”.

Both those commitments require substantial reductions in emissions in the short and medium term, Leigh Day states. By concentrating only on achieving net zero by 2050, it is alleged that the government has failed to lawfully take account of those aims by excluding EfW facilities from the ETS.

Eliott-Smith said: “The UK’s existing 48 municipal waste incinerators emit 6.6 million tonnes of CO2 per year – more than Manchester and Birmingham put together. Their exclusion greatly impedes the UK’s efforts to achieve net zero carbon, especially since dozens more are currently under construction or awaiting planning consent.

“I hope that by bringing this action, we can reduce national CO2 emissions and stimulate alternative waste routes such as reduction, reuse and recycling.”

Leigh Day human rights lawyer Rowan Smith added: “The defendants have sought to argue that the net zero by 2050 commitment is co-extensive with the Paris Agreement. This is wrong in law. The Intergovernmental Panel on Climate Change has made clear on numerous occasions that the Paris Agreement requires substantial emissions reductions to be made in the short term.

“Our client states that this cannot be achieved by excluding municipal waste incinerators from the emissions trading scheme. Rolling forward carbon emissions allowances to future years, and the setting of a cap on allowable emissions which will be above the level of existing emissions, also work against the fundamental requirements of the Paris Agreement.”

Controversial technology

EfW has increased substantially in recent years and many think it is the solution to the UK’s residual waste problem, with think tank Policy Connect saying as much in a recent report. However, there is still a lot of controversy surrounding the facilities.

UK Without Incineration Network (UKWIN) has warned that harmful emissions from incinerators are going unreported and that plants released an estimated 11 million tonnes of CO2 in 2017.

A 2019 study carried out by Imperial College London found “no conclusive links” between incinerators and negative health impacts in new-born children, though it stated that further research is ‘warranted’.

EfW facilities have also raised a lot of questions on the social consequences of building them. A Greenpeace report has stated that EfW facilities were three times more likely to be built in poor areas than rich areas and that facilities were disproportionately found in BAME communities.

Shlomo Dowen, National Coordinator of the UKWIN, said: "Despite the principle that it is the polluters who should pay for the harm they cause, the UK's incineration industry is not paying its way. In 2020 the UK's existing incinerators will emit around seven million tonnes of fossil CO2 from burning plastics, causing around half a billion pounds worth of climate damage, without compensating society for the associated harm that this will cause. Incineration is part of the climate problem, and it is past time for the industry to be forced to pay some form of compensation for the climate damage they cause each and every year."

The energy recovery sector has sought to rebuff claims regarding the environmental impact of EfW facilities, with the Environmental Services Association (ESA) calling for an end to the ‘demonising of EfW’, pointing to the role EfW plays in diverting waste from landfill.

In response to the legal challenge, ESA Executive Director Jacob Hayler said: “Including vital EfW facilities in carbon pricing would do nothing to address emissions from them and would simply raise the cost of managing our nation’s waste. It would also blunt the incentive to divert residual waste from landfill, thereby increasing emissions rather than reducing them. We therefore believe it is right that EfW facilities are excluded from the ETS.

“ESA members are working towards a net-zero carbon strategy and our continual efforts to move material further up the waste hierarchy, as well as remove plastics from the residual waste stream, are significantly contributing to carbon reduction across the economy. New policies on the horizon within the Resources and Waste Strategy, and provisions within the Environment Bill, will expedite these measures and help us to remove even more plastic from the residual waste stream – thereby reducing emissions from EfW.” 

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