How the POPs recast became a political battleground

The European Union has set strict rules on persistent organic pollutants (POPs) since 2004, and this year’s recast of its POPs Regulation was expected to be a low-profile, technical update to a relatively unknown piece of legislation. Instead, the recast led to a divergence of opinions among experts and stakeholders on environmental questions like the balance between waste and chemicals policy, the future of the European Chemicals Agency (ECHA), and the role of impact assessments and Better Regulation.

The recast passed a key stage on November 15 when the European Parliament adopted its first reading position. This now opens the door for negotiations with the Council as the clock ticks down to the end of the current institutional mandate in May 2019 – although realistically the inter-institutional negotiations need to be wrapped up by the end of February.

Persistent organic pollutants are chemicals that persist, bioaccumulate, and are widely distributed in the environment. They are banned under the 2001 United Nations Stockholm Convention, and are implemented in the EU through the POPs Regulation. The main aim of the recast is to update the rules and align the POPs Regulation with the Lisbon Treaty. However, the Commission also took advantage of the exercise to introduce more substantive changes to the EU’s system for implementing the Stockholm Convention.

The Commission’s biggest proposed change is the strengthening of the EU’s own process for identifying and nominating new POPs by giving ECHA a formal advisory role in scientific and technical information. The EU has so far made around 60% of all the nominations submitted under Stockholm, so this change would clearly have an impact in terms of the scientific basis for POP proposals at the international level.

ECHA’s new proposed role was welcomed by many, as a way to strengthen science-based decision-making and technical know-how in a critical area of EU and international chemicals policy. MEP Julie Girling, the Parliament’s rapporteur on the dossier, took the plans a step further when she proposed that ECHA should also provide socioeconomic impact assessments. This amendment aimed to align the legislation with the Commission’s Better Regulation principles and with REACH restrictions. However, the Parliament’s Environment Committee rejected the amendment, with the vote reflecting the sensitivities about including socioeconomic considerations in EU chemicals regulation. It remains to be seen whether these measures will be reintroduced at trilogue level.

Another important point of controversy in the recast has been how to define the limits for recycling waste containing one particular POP substance. This sparked strong debate among different groups in the Parliament, industry, and NGOs regarding the proportionality of the proposed limit. This was yet another practical example of the complexities related to the interface between product, waste, and chemicals legislation, an area the Commission promised to address in a communication in January this year.

A third and related topic of debate was the initial exclusion in the recast of the Waste Committee of member state experts in favour of an exclusive role assigned to the REACH Committee of chemicals experts. The Parliament proceeded to amend this and restore a double role for both committees. Given the complexities of setting low POP limits in waste, this change will likely be supported by the Council during the negotiations.

While it is too early to say how many of these issues will be solved in the final legal text, the recast exemplifies a new tendency in EU regulation: legislative files that look like simple technical measures at first glance can easily become politicised. In the case of POPs, it is all more remarkable given that the process has taken place in parallel with negotiations on single use plastics, one of the most prominent environmental files of the Juncker Commission.

The debate over the POPs recast – both at institutional and civil society levels – shows how chemicals legislation is not solely dictated by technical or scientific considerations. Public perceptions still carry weight in how chemicals are regulated in Europe.

Burson Cohn & Wolfe is the leading public affairs and communications agency following POPs in Brussels. As part of the Environment & Energy team, Alexander and Selma have extensive experience working on POPs both at EU and UN level.

Authors: Alexander Majer and Selma Abdel-Qader

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