The New Waste Directive - Trying to Do it All.. An Early Assessment

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Abstract: At the heart of ongoing debate over Community waste policy (and thus its regulatory form) is an unclear message about its goals, which include both 'preventing* and 'regulating' waste and, after a new Directive, maintaining high environmental standards for the use of resources generally. This article asks whether the new Directive is likely to resolve the tension that arises in determining which of these goals takes priority, or whether it perpetuates it. It answers this question by analysing the changes introduced by the 2008 Waste Directive and by examining its goals and the legal issues that arise from the Directive's efforts to clarify, simplify and reorient the provisions of previous Waste Directives. The article concludes that the new Waste Directive is broadly and overly ambitious, at the expense of clarity concerning its goals and certainty in relation to its regulatory provisions. In short, there is a lot to digest in legally understanding and appraising the new Directive.

INTRODUCTION

The new Waste Directive1 was not meant to be a 'root and branch overhaul' of the previous framework Waste Directive.2 However, in its final form, the new Directive certainly is an overhaul. While the roots and branches of previous Waste Directives are still visible, it is now a highly evolved specimen. With this evolution comes a host of new legal issues4 for Community waste law, and the purpose of this paper is to begin the process of identifying them. The central argument made here is that the Directive is trying to do a lot of different things, to the point that the breadth of its goals makes its regulatory focus difficult to ascertain with clarity. The Directive is trying to do it all by promoting (at least) the following priority goals - waste prevention, waste recovery and the development of a 'European recycling society', the extension of resource life-cycles, and the environmentally responsible treatment of waste as well as resources more generally - all while minimising disruption to the internal market and taking account of different geographical and industrial situations across Member States. The thing about taking on so big a task is, to coin a phrase, that it is not possible to do everything all of the time, and certainly not all at once. The multitude of priority goals gives rise to ambiguity in determining the obligations that Member States are required to meet under the Directive.

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