The government has published an eight-week consultation on reforms to permitting in the industrial and energy sectors. In this article we outline the consultation proposals.
The consultation covers the permitting of industrial activities under the Environmental Permitting (England and Wales) Regulations 2016 (EPRs), which include installations, medium combustion plants and specified generators, small waste incineration plants, solvent emission activities, part B mobile plants and mobile medium combustion plants.
Although the consultation states that the regulatory framework for industrial emissions has been effective in reducing pollution and is broadly supported by industry, it acknowledges that the framework is 'outdated and requires reform to keep pace with and enable industrial transformation'.
The permitting framework should deliver proportionate coverage of emerging clean technologies, provide clarity on the regulatory position for these technologies and support industry planning and investment. The government acknowledges that although polluting activities need to be regulated carefully and environmental standards maintained, the framework should better reflect where industries, such as data centres or green hydrogen production, present a lower pollution risk.
The consultation states this is not about wholesale deregulation, as permitting for most industrial activities remains essential given the significant pollution impacts. Instead, it's about ensuring that regulation is proportionate to risk and does not inhibit the rollout of technologies which deliver significant overall health and environmental benefits.
In a further proposal, the consultation says that ministers want to explore site-level flexible permitting approaches. It explains that, while reviewing the permitting system for the industry, the government has looked at permitting approaches in other countries to identify novel approaches which could be used in the UK. One such approach highlighted in the document includes the various types of ‘flexible’ permit that have been used as part of the industrial pollution control system in the US.
The consultation explains that such approaches move away from setting emission limits for each separate technology or process at an industrial facility and instead set an overall cap for the facilities’ emissions of certain pollutants, for example particulate matter or nitrogen oxides. Such an approach could provide value in simplifying permitting for facilities that are decarbonising through the use of new fuels. For example, an installation with a flexible permit that is switching from natural gas to hydrogen would not require a permit variation if it could demonstrate that the change would not lead to exceedances of the nitrogen oxide emissions cap for the site, and would not lead to wider emissions or environmental impacts that were not covered by the flexible permit.
As set out in the ‘Case for Change’ chapter of the consultation, there is a complex split between industrial activities regulated by the Environment Agency (EA) and those regulated by local authorities. The broad rationale for the split is based on:
The split between the two regulators has not been properly reviewed for decades, during a period of significant and accelerating industrial transformation. The government would now like to consider whether there are specific activities which should be transferred between regulators - for example, because risk profiles have changed, more nationally-directed approaches are required or because certain sectors are undergoing significant transformations which require specific expertise that one regulator is better placed to provide.
The consultation runs until 21 October.
Paul Collins is an environmental lawyer and has extensive experience advising on regulatory disputes, including supporting clients through the environmental permitting process and appeals. He worked for the EA for over a decade until 2024. He was a senior lawyer advising on enforcement of the environmental permitting regime, including the issuing of civil penalties, agreeing enforcement undertakings and represented the EA in appeals against permitting decisions. Paul was also the lead lawyer for the EA enforcing the climate change regimes and represented the EA in more than 150 appeals against civil penalties, in the First-tier Tribunal and the Upper Tribunal.
Paul is therefore uniquely well placed to advise clients in relation to regime compliance, steps to take in response to enforcement action, and prospects of success when making representations or bringing appeals.
If you would like to discuss this, please contact Paul Collins.
