EU waste legislation as an indirect basis or argument in litigation
Waste law as a collateral consideration to other environmental law provisions
Many waste management projects aimed at the implementation of waste legislation give rise to issues pertaining to public information and participation or other “transversal” environmental law provisions. As a general rule, members of the public - such as neighbours of a waste management facilities or NGOs – have a right to be informed of a projected landfill or an incinerator, they may participate in the decision making process or, depending on the case, contribute to the environmental impact assessment process, etc. More generally, courts, as well as competent administrative authorities, have to apply general environmental laws in relation with projects concerning waste management facilities or other activities involving waste.
For instance, under Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (EIA Directive), amended by Directive 2014/52/EU, projects listed in Annex I, which as such shall be made subject to an assessment (Article 4(1)) include: waste disposal installations for the incineration, chemical treatment or landfill of hazardous waste, as well as waste disposal installations for the incineration or chemical treatment of non-hazardous waste with a capacity exceeding 100 tonnes per day, not to mention facilities involved in nuclear waste.
Likewise, waste incineration plants and waste co-incineration plants are the subject-matter of Chapter 4 of the Industrial Emissions Directive. Many other types of waste management facilities, such as those for the disposal or recovery of hazardous waste and/or of non-hazardous waste beyond certain triggers, e.g. landfills (Article 10 and Annex I(5)), fall within the scope of the general provisions of the Industrial Emissions Directive, so that they are subject to its stringent authorisation, monitoring and surveillance provisions.
Judges may also have to ascertain the conformity of national laws implementing EU waste law provisions to Directive 2008/99/EC on the protection of the environment through criminal law. Under that Directive, the Member States shall ensure that certain conducts constitute a criminal offence when unlawful and committed intentionally or with at least serious negligence. Such conducts include, inter alia, the collection, transport, recovery, or disposal of waste which causes or is likely to cause serious injury to any person or substantial damage to the quality of air, the quality of soil, or the quality of water, or to animals or plants (Article 3(b)). Likewise, national law should make a criminal offence the shipment of waste in violation of the Waste Shipment Regulation in a non-negligible quantity (Article 3(c)).
Finally, certain activities operated in the course of implementing waste law may fall within the scope of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage. Such is the case where they cause damage to protected species and natural habitats, to water or to land, thus triggering the application of the environmental liability regime organised by the Directive. That liability regime expressly applies to such environmental damage where, even without fault or negligence, it is caused by the operators of such occupational activities as those subject to permit in pursuance of the Industrial Emissions Directive, as well as waste management operations including the collection, transport, recovery and disposal of waste and hazardous waste subject to permit or registration in furtherance of the Waste Framework Directive.