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.


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.3 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.

The new Directive was intended to clarify, simplify and re-orient its framework provisions,5 so as both to fix the perceived problems of past waste regulation and to reflect the new life-cycle, resources-focused approach to waste policy set out in the Commissions Sixth Environment Action Programme.6 However, the latter objective undermines the former: measures designed to promote resource life-cycles and their environmental standards, which introduce a host of new legal questions, counteract the Directives efforts to overcome previous problems and to simplify the Directive. In addition, as will be seen in the sections that follow, efforts to patch up previous problems are not perfect solutions. The Directive is now a legislative instrument of a different order to its predecessor, in terms of both its scale and ambition, and with this comes increased legal complexity. What began as a Proposed Directive with 22 recitals, and ambitions of 'refining' the previous Waste Directive, ended with 46 recitals and a depth of legislative detail unknown in previous framework Waste Directives. In some ways, it is not a complete overhaul of the previous Directive - the basic definition of waste remains unchanged, and the structure of the Directive, with its Annexes and forms of waste management obligations, remains recognisable. But in many ways it is an overhaul - it clarifies but resets the waste hierarchy, it explicitly suggests and prioritises producer responsibility and waste prevention measures, it amends the Directive's scope and establishes end-of-waste and by-product criteria, it introduces Community recycling targets, it sets an agenda for managing greenhouse gas-producing biowaste, amongst other things.

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