“Powering up Britain” & UK CBAM (UK)

Today 30th March 2023, the UK government published two documents – here

(1) “Powering up Britain: Energy Security Plan”

(2) “Powering up Britain: Net Zero Growth Plan”

And (3) a consultation on UK CBAM see below (the UK’s response to carbon leakage – caused when manufacture is moved to a less regulated jurisdiction) [an earlier Blog post covers the EU CBAM, which is nearing enactment]

The Net Zero Growth Plan responds to the Independent Review of Net Zero (Chris Skidmore MP); is the annual update against the Net Zero Strategy, both on a national and local level; responds to the Climate Change Committee’s (CCC) 2022 Annual Progress Report; and sets out the package of policies and proposals to meet carbon budgets up to carbon budget 6 in 2037.

A couple of useful confirmations – the UK government will –

* publish the full government response to the UK ETS Develop consultation; set out a long-term pathway for the UK ETS (including possible expansion of UK ETS to cover energy from waste/waste incineration and domestic maritime emissions); and work within the ETS Authority to publish it in 2023

* legislate to continue UK ETS beyond 2030 until at least 2050

* review the free allocation of ETS allowances, in the context of a UK CBAM

* extend the current Climate Change Agreements Scheme for two further years, to continue the availability of Climate Change Levy discounts for meeting energy efficiency or carbon reductions targets

* publish a consultation (later in 2023) to review the current Batteries Regulations, to consider measures to promote the recovery, reuse, or recycling of all battery chemistry types. [note the current Batteries Regulations are listed for deletion under the REUL project]

UK CBAM consultation – “Addressing carbon leakage risk to support decarbonisation” – a UK CBAM would follow the EU approach and apply to industries trading in UK ETS. Closing date is 22 June 2023. Here

A UK CBAM is one option in the consultation – the consultation covers –

(1) a carbon border adjustment mechanism (CBAM) – a tax (this is a Treasury and DESNZ consultation) – to be applied on imports to reflect the carbon emitted during production and the gap between the carbon price applied in the country of origin and the carbon price that would have applied in the UK

(2) mandatory product standards (MPS)

(3) product labeling

(4) emissions reporting

Windsor Framework (Northern Ireland)

27th February 2023 saw political agreement reached between the EU and the UK on the Windsor Framework. The Windsor Framework is a set of new arrangements for agri-foods and medicines (and seeds, plants, trees and agri machinery; customs; VAT; and state aid) presently regulated by the Ireland/Northern Ireland Protocol of the EU-UK Withdrawal Agreement. Further information is in this UK command paper here.

The Ireland/Northern Ireland Protocol (known as the Northern Ireland Protocol or NIP in the UK) entered into force on 1st February 2020, and its provisions applied from 1st January 2021.

Agri-foods

A general single certificate will be used for mixed loads of agri-food goods consumed in Northern Ireland.

Identity checks will be reduced to 5% (for agri-foods consumed in Northern Ireland) – specifically – from 1 October 2023, the frequency rate of identity checks will be 10% of all consignments of retail goods for consumption in Northern Ireland), and 8% by 1 October 2024 when all milk and dairy products are individually marked. From 1 July 2025, the frequency rate will be 5% of all consignments of retail goods, when all retail goods are individually marked.

Physical checks (as respects agri-foods consumed in Northern Ireland) will be carried out in conjunction with identity checks using a risk-based and intelligence-led approach.

Documentary checks will be carried out on all the general certificates accompanying the consignments of retail goods for consumption in Northern Ireland. These checks can be performed remotely and electronically.

UK public health standards (e.g. level of additives in food) will apply to goods moved for end consumption in Northern Ireland. Previously prohibited chilled meats, such as sausages, will be allowed.

Certificates will not be needed for organics and wine (consumed in Northern Ireland).

Agri-foods originating in the rest of the world may enter Northern Ireland (for consumption in Northern Ireland) through Britain when UK conditions are identical to EU ones (specific list of products, including New Zealand lamb and vegetables).

The UK will provide EU representatives with access to relevant UK IT databases.

Labelling “not for EU” will be deployed for agri-foods consumed in Northern Ireland.

The movement of retail goods will be monitored, with traceability and listing of the dispatching and receiving authorised establishments.

Facilitations will be suspended to address specific problems or systematic failures of compliance with the new arrangements.

It will not be a dual regulatory regime. UK public health standards will apply to agri-foods entering Northern Ireland from Britain for consumption in Northern Ireland. But EU requirements for animal health and plant health in Northern Ireland will remain fully in place.

The UK announced in December that it will construct permanent SPS Inspection Facilities. Deployment of SPS Inspection Facilities will be gradual – 1 October 2023 for the delivery of enhanced facilities and 1 July 2025 for the delivery of final facilities.

Re “not for EU” labeling – from 1 October 2023, prepacked meat and fresh milk will be individually labelled. Goods sold loose need only to be labelled at box level (e.g. apples) and easily visible signs would need to be placed next to the price tag on the shelves in the supermarkets. Posters would also be needed, placed in the supermarkets so that consumers know that the goods are not for EU. As of 1 July 2025, all retail goods (other than goods sold loose) will be individually labelled except those not subjected to official controls at border control posts in the EU (e.g.: confectionery, chocolate, pasta, biscuits, coffee, tea, liqueurs, canned fruit and vegetables, ketchup and similar shelf-stable products).

Medicines

In April 2022, the EU amended its legislation to ensure the uninterrupted supply of generic medicines from Britain to Northern Ireland.

Novel medicines will be authorised and placed on the market in Northern Ireland in accordance with UK rules and UK authorisation procedures only. EU rules and authorisations will not apply to these medicines anymore. In addition, prescription medicines placed on the Northern Ireland market will not carry the EU required unique identifier/barcode to distinguish them from those placed on the EU market.

Individual packs of all medicines placed on the Northern Ireland market will be labeled “UK only”.

Stormont Brake

This is a new mechanism that will allow the UK government, at the request of 30 Members of the Legislative Assembly in Northern Ireland (Stormont), in the most exceptional circumstances, as a last resort as set out in a unilateral UK Declaration (statutory instrument to be debated next Wednesday in Parliament) to stop the application of amended or replacing provisions of NIP Retained EU law, that may have a significant and lasting impact specific to the everyday lives of communities in Northern Ireland.

The Stormont Brake is wider than Agri-foods and Medicines.

The UK Institute for Government has an explainer here.

Next Steps

A meeting of the Withdrawal Agreement Joint Committee will take place to adopt the necessary measures, translating the relevant joint solutions into legally binding commitments by making full use of its powers under the Withdrawal Agreement.

The European Commission has already made proposals to the Council for a Union position as regards, amongst other things, the decisions that need to be adopted in that meeting.

In addition, the Commission has also tabled three legislative proposals laying down, respectively, new rules for the movement of retail SPS goods, pets, seed potatoes, plants for planting and agricultural machinery from Great Britain to Northern Ireland, and rules giving effect to the solution found in the area of human medicines as well as certain categories of steel subject to tariff rate quotas. Once all translations are finalised, they will be transmitted to the European Parliament and Council. Once adopted and entered into force, the Commission will adopt any necessary implementing acts.

As identified earlier, the UK will debate next Wednesday in Parliament, a statutory instrument to give effect to the Stormont Brake.

New Arsenic Limits in Certain Foods (EU)

UPDATE (13th March) the UK baby food trade body (BSNA) says its members will be manufacturing to the new EU standard.

Regulation (EC) No 1881/2006 sets the maximum level of arsenic in some foods.

Regulation (EU) No 2023/465 of 3rd March 2023 amends the 2006 document to radically reduce the maximum arsenic limit in infant formula and baby food and set arsenic limits in rice, cereal, fruit juice and salt. The 2023 document enters into force on 26th March.

Long shelf life foodstuffs that met the higher arsenic limit before this change will be permitted to remain on the market until their limit of minimum durability or use-by date.

The new limits are set out in the replacement Annex (in the 2023 document) here.

Re Northern Ireland (Windsor Framework 2023) –

The EU and UK agreed new and simplified rules and procedures for the entry into Northern Ireland from Britain of certain agri-food retail goods where the goods are sent for final consumption in Northern Ireland:

• Use of a general single certificate for mixed loads of agri-food goods.
• Identity checks drastically reduced: down to 5% when all safeguards are in place, physical checks to be carried out on a risk basis and intelligence-led approach.
• Application of UK public health standards (e.g. level of additives in food) to goods moved for end consumption in Northern Ireland. Previously prohibited chilled meats, such as sausages, are now allowed.
• Removal of certificates for organics and wine.
• Possibility to move goods originating in the rest of the world to Northern Ireland through Britain when UK conditions are identical to EU ones (specific list of products, including New Zealand lamb and vegetables).

Also, to protect the integrity of the EU Single Market:

• The UK is constructing operational SPS Inspection facilities and provide EU representatives with access to relevant UK IT databases.
• Labelling “not for EU” is to be used for products that will remain in Northern Ireland.
• Identity checks will be progressively reduced as the labelling requirements are fully completed.
• Monitoring will take place of the movement of retail goods; and there will be traceability and listing of the dispatching and receiving authorised establishments.

If the UK does not adopt the lower arsenic limits, it may be that two sorts of foods are offered to the market in Northern Ireland –

(a) “not for EU” foodstuffs

(b) lower arsenic limit EU compliant foodstuffs.

New European Drinking Water Directive (EU)

The EU adopted a recast Directive (EU) 2020/2184 on drinking water in December 2020, and the document entered into force in January 2021. EU member states had until 12 January 2023 to transpose this document in national law and comply with its provisions. The 1998 Directive is repealed from 13 January 2023. As of currently, not all EU member states have updated their domestic law.

The new Drinking Water Directive is here.

Key features of the revised Directive are:

• reinforced water quality standards, in line or, in some cases, more stringent than the World Health Organisation (WHO) recommendations
• tackling emerging pollutants, such as endocrine disruptors and PFAs, as well as microplastics
• a preventive approach favouring actions to reduce pollution at source by introducing the risk-based approach
• measures to ensure better access to water, particularly for vulnerable and marginalised groups
• measures to promote tap water, including in public spaces and restaurants, to reduce (plastic) bottle consumption
• harmonisation of the quality standards for materials and products in contact with water
• measures to reduce water leakages and to increase transparency of the sector

The EU also adopted the first watch list on 19 January 2022. This document is here. This means that drinking water across the EU will have to be monitored more closely for the potential presence of two endocrine disrupting compounds (beta-estradiol and nonylphenol) throughout the whole water supply chain. Endocrine disrupting compounds are a mixed group of chemicals of varying structure that can interfere with physiological and biochemical processes in the human body.

In justified circumstances, EU member states may provide for derogations. this means they will set a less stringent value than the parametric value set out in Part B of Annex I of the 2020 document, up to a maximum value to be determined by them. Such derogations should not constitute a potential danger to human health and the supply of water intended for human consumption in the area concerned cannot be maintained by any other reasonable means.

The Drinking Water Directive is not a document that is retained in Northern Ireland under the Ireland/Northern Ireland Protocol of the Withdrawal Agreement.

Shell Directors Climate Risk Law Suit (Litigation)

The NGO ClientEarth (a shareholder in Shell) has today (9th February 2023) filed a world-first lawsuit against the Board of Directors of Shell plc for failing to manage the material and foreseeable risks posed to the company by climate change.

The lawsuit alleges Shell’s 11 directors have breached their legal duties under the UK Companies Act by failing to adopt and implement an energy transition strategy that aligns with the Paris Agreement.

ClientEarth’s claim is filed in the High Court of England and Wales and is supported by a group of institutional investors collectively holding more than 12 million shares in the company, and more than half a trillion US dollars (£450 billion) in total assets under management (AUM).

In May 2021, a Dutch court ordered a net 45% reduction in group-wide emissions by the end of the 2020s. Shell has appealed the judgement, ClientEarth also alleges that the Board’s failure to fully comply with the Dutch Court’s judgment is an additional breach of its legal duties.

ClientEarth is represented by London litigation firm Pallas Partners, and is asking the High Court for an Order which requires the Shell Board to adopt a strategy to manage climate risk in line with its duties under the Companies Act, and in compliance with the Dutch Court judgment. The High Court will decide whether to grant ClientEarth permission to bring the claim.

The ClientEarth press release is here. It also has a link to FAQs.

Further Neonictinoids Ban (EU)

On 2nd Feb 2023, the EU Commission adopted new rules which, once applicable in 2026, will lower the Maximum Residues Levels (MRLs) of two pesticides in food.

Assessments by the European Food Safety Authority showed that the two chemicals, belonging to the group of neonicotinoid pesticides, clothianidin and thiamethoxam, pose a high risk to bees and contribute to the global decline of pollinators. For this reason, their outdoor use was banned in the EU in 2018.

The new rules will lower existing MRLs for these substances to the lowest level that can be measured with the latest technologies. They will apply to all products produced in the EU, and also to imported food and feed products.

The new rules will be issued as an EU Regulation, that will amend the existing 2005 Regulation. Further information is here.

Also on 19th Jan 2023, the EU court published a preliminary ruling on questions posed by the Belgian Administrative Court, following a complaint by PAN Europe, Nature & Progrès Belgium and a Belgian beekeeper. The Court declared that providing derogations for the treatment of seeds with a banned pesticide and their use is not in line with EU law. The ruling is here.

ECHA PFASs Ban Proposal (EU)

In a major development, the European Chemicals Agency (ECHA) has today 7th Feb 2023 published its proposal to ban PFASs.

Per- and polyfluoroalkyl substances (PFASs) are a large class of thousands of synthetic chemicals in common use. They are increasingly detected as environmental pollutants and some are linked to negative effects on human health.

ECHA states as they all contain carbon-fluorine bonds, which are one of the strongest chemical bonds in organic chemistry, it means that they resist degradation when used and also in the environment. Most PFASs are also easily transported in the environment covering long distances away from the source of their release.

ECHA states that PFASs have been frequently observed to contaminate groundwater, surface water and soil. In addition, cleaning up polluted sites is technically difficult and costly. And so, if releases continue, they will continue to accumulate in the environment, drinking water and food.

Information about the ECHA proposal and ECHA’s next steps are here.

EU Law Revocation (UK)

Yesterday the REUL bill had its Third Reading in the House of Commons, and now goes to the House of Lords. To remind, it’s a UK bill extending to all parts of the UK. It’s unamended, save for a government amendment that will make any document surviving the process to be known as an “assimilated” instrument.

At Third Reading, the government confirmed the following –

(1) up to 4,000 existing instruments on the UK statute base could be affected by the REUL bill project, they said 3,200 instruments had already been verified as within the scope of the project (the government accepted its (public) dashboard shows 2,400, some already revoked)

(2) the (above) dashboard (here) hitherto moribund, would be updated possibly by the end of this month

(3) standards could rise, despite the REUL bill regulatory burden stipulations

(4) devolved governments could reissue the sunsetted laws themselves within their capacities (no announcement re Northern Ireland which has no current government)

Reminder: the REUL bill will sunset (revoke) in scope existing instruments by 31st December 2023. The bill enables a Minister or a devolved administration to exempt an instrument or a part of an instrument from sunset before that date, and thereby preserve it.

The bill gives an extension possibility, by regulation of a Minister (not a devolved administration) and only for an instrument or category of instrument specified in that regulation (not a general extension), and only to 23 June 2026.

The bill applies UK wide, but “Northern Ireland law” is out of scope.

It’s now accepted that 4,000 existing instruments are in scope.

As I posted yesterday, the Britain list (of in scope REUL bill affected instruments) is already loaded onto subscribers’ systems. I will now compile the Northern Ireland list, and it will show on subscribers’ systems shortly.

EU Law Revocation (Northern Ireland)

I had earlier written that the REUL Bill does not apply to Northern Ireland. This is incorrect. As currently drafted, the Bill applies to Northern Ireland, and so it’s accommodation of the pre-existing Northern Ireland Protocol is not presently understood.

The Bill is back in Parliament today for its Third Reading in the House of Commons.

I will commence compiling the list of laws pertaining to Northern Ireland affected by the Bill. This will load onto subscribers Northern Ireland systems shortly, and updates included in the monthly Email Alerts. This list will also identify those of the cohort also listed in the Northern Ireland Protocol. If a document is listed in the Northern Ireland Protocol, it also applies in Northern Ireland, even if identified for deletion under the Bill.

Note: the list pertaining to Britain and the devolved administrations in Britain (Scotland and Wales) is already loaded onto subscribers systems for these jurisdictions.

I will Blog post again, if the Government accepts any amendments arising from the Report stage, being debated later today.

The later stages in the Lords (of enactment of this Bill) could also make amendments, that may or may not be accepted by the Government. Further Blogs on the matter can be expected.

New Lighting Products MEPS (Britain)

The UK government is consulting on changes to the 2021 Regulations on lighting products, to put in place more stringent minimum energy performance standards (MEPS) from late 2023.

The existing rules are set out in The Ecodesign for Energy-Related Products and Energy Information (Lighting Products) Regulations 2021. The 2021 Regulations were, anyway, enacted after 31st Dec 2020 and are not part of the REUL project; but the new MEPS proposed will be more stringent than those applying to lighting products circulating in the EU.

The current deadline to end the circulation of CE marked lighting products on the GB market (31st December 2024) would be brought forward to the date the new GB requirements come into effect.

The consultation is here. The consultation ends on 4th April 2023.