Consultation on modernising environmental permitting for industry
Commercial confidentiality
Transparency is a key underpinning of public confidence in the safety of industry and supports public acceptance of industrial activity and particularly novel technologies. There are several relevant pieces of legislation covering disclosure that regulators need to comply with when issuing permits, most notably the EPRs and Environmental Information Regulations (EIR), and also international obligations through the Aarhus Convention Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (‘Aarhus Convention’).
As part of permit applications under the EPRs, operators are required to provide the regulator with information on any potential emissions into the environment that are likely to result from their site. Regulation 46 of the EPRs requires that this information should then be included on the public register.
Under the EPRs, operators can claim commercial industrial confidentiality to avoid the publication of information if the public interest favours withholding this information. However, “to the extent that information relates to emissions, the regulator must determine to include it on the public register” – which operates as an override to commercial industrial confidentiality in this context. The EIRs include a similar override to commercial industrial confidentiality in relation to information on emissions.
Operators from industries, including the carbon capture and chemicals industries, have argued that these requirements are stifling innovation and the deployment of new products in England. This is because information on emissions can be used to derive the compositions of proprietary products, and developers of these products may therefore refuse to let them be used at permitted installations.
The EA is already using available flexibilities, for example, by setting out that it will likely accept commercial industrial confidentiality claims if the operator can demonstrate that emissions have not been released into the environment. However, existing legislation is clear that information on emissions that is held by regulators must be included on the public register.
We do not propose reconsidering the core of the existing approach, as public access to information on harmful emissions is a fundamental principle which is crucial to public trust in emerging industries. However, we would like to explore the arguments for and ways of creating flexibilities, especially for R&D trials. In this context, we are seeking feedback on whether there are alternative models which ensure that regulators receive the information they need to provide assurance that significant pollution will not be caused and that the public can access sufficient information on emissions – but that commercially sensitive information can remain confidential. We understand that different approaches have been taken to commercial confidentiality in certain cases in Norway, Germany and Denmark and would appreciate feedback on these models.
Potential alternative approaches could involve limiting the information that operators are required to provide to the regulator for R&D trials to only the information required to ensure significant pollution is not caused. Alternatively, information could be required or disclosed in a form that will not compromise commercial confidentiality.
A more limited alternative approach would be amending legislation to allow commercial industrial confidentiality claims for information on emissions where those emissions are proven not to be harmful to health or the environment. Current legislation requires disclosure on any emissions, even if they are proven to be harmless, which arguably does not strike the right balance between transparency and commercial confidentiality. An amendment of this kind could be designed to be compliant with requirements under the Aarhus Convention, which are that “information on emissions which is relevant for the protection of the environment shall be disclosed”. It should be noted that an amendment of this kind would not facilitate non-disclosure of commercially confidential information where evidence on harm is unclear or incomplete.
Options in this space will need to be developed further and assessed against existing legal requirements on public transparency (for example through the Aarhus Convention) to determine their acceptability. Options should reflect the fact that the level of potential harm is related to the amount of a substance released. Temporary trials at permitted installations, while not always free from harm, are likely to generate less pollution than continuous operation of the same process. A decision about harm should therefore take into account the duration of an emission as well as other factors.