A recent High Court decision maintains the unfair ‘stacking of the decks’ against industrial operators who need commercial certainty on their End of Waste products, produces an unexpectedly lenient interpretation of member state responsibility for promotion of the waste hierarchy, and is a set-back for waste oils recycling in England.

In the case of Protreat Ltd v Environment Agency [2018] EWHC 1983 (Admin) 30 July 2018, the High Court dismissed an application for judicial review of Environment Agency decision-making in a very specialist End of Waste context involving the UK waste oils recycling industry. Ironically, it was a member of this same industry which took the EA all the way to the Court of Appeal over a decade ago in order to secure the correct interpretation of EU definition of waste/end of waste law (OSS Group Ltd v Environment Agency and DEFRA [2007])

This was a very different case, and a different outcome, rendered inevitable by the refusal this time of leave to appeal to the Court of Appeal. However, the case did highlight again the practical difficulties faced by operators in trying to secure fair engagement from the EA’s Definition of Panel. The EA had previously rejected a proposal for End of Waste standards for the products of re-refining (or regeneration) of waste oils. There is very little re-refining of waste oils carried on in the UK, which has for decades been viewed as backward in comparison to continental Europe in promoting this ‘top of the waste hierarchy’ recovery option for this hazardous and difficult waste stream. The industry proposal was a reasonable one but seemed to receive no meaningful engagement from the EA and ended up being refused on the same day that the Panel closed its doors for lack of resources.

Protreat brought the judicial review, not on the merits of the proposal as such (which would have been impossible on judicial review due to the inherently technical factual nature of the merits) but rather on the wider grounds that this latest refusal to engage by the EA represented the last in a series of actions and omissions which the claimant maintained militated against the promotion of the waste hierarchy and as such breached the UK’s various obligations in that context under the Waste Framework Directive (2008/98/EC).

The High Court rejected this and dismissed the claim. As is commonplace in judicial review cases, the Court accepted the EA’s insistence that it had reasonably and rationally concluded that the industry end of waste proposal lacked the necessary relevant information.

However, the Court also accepted the EA’s arguments to the effect that the obligations imposed by the Directive as regards the promotion of the waste hierarchy were flexible, and that there was no obligation on the EA to work with industry to develop technical standards for recycled end of waste which would ensure that recycling (which is higher in the waste hierarchy) is more attractive to industry than the reprocessing of waste oil into fuels.

In fact, one of the elements of the EA defence accepted by the Court was this flexibility of approach which might allow the EA and others to depart from the waste hierarchy without doing so on the basis of a proper life cycle analysis, contrary to what Article 4(2) of the Directive requires.

The court accepted that the EA, when exercising the functions conferred upon it by Parliament, had to take measures that are necessary to comply with the result that the WFC 2008 seeks to achieve. However, this obligation only arises in relation to the exercise of powers that have been conferred on the EA. This point is not controversial, in itself, but in our view the Agency exercises such critical day to day authority over those involved in the waste recycling and recovery sectors, and especially in decisions on waste and end of waste definition, that when exercising those powers, it most certainly is the core emanation of the state.

Three things we took from the judgment: (1) if the EA do not agree with your end of waste analysis, then the courts will tend to support the EA, and as such the EA is now bolstered in its resiliently negative approach to innovative End of Waste proposals; (2) the UK is probably now further in breach of the waste oils provisions of the Waste Framework Directive than ever before; and (3) it may well be that this is the shape of things to come in the post-Brexit world where, even while we remain a member of the EU, the UK courts seem less persuaded by arguments of breach of EU law.