What the parliamentary standoff over sewage discharges means for environmental regulation

Authored by Nicholas Jones, Paralegal in BDB Pitmans’ planning, infrastructure and public law department. 

The parliamentary battle over ‘storm overflows’ – initiated by that well-known rebel, His Grace the 9th Duke of Wellington – is finally over. But despite a compromise having been reached on sewage, several regulatory uncertainties remain.

What are storm overflows?

The dispute concerns the emotive issue of untreated sewage discharging into Britain’s waterways. During storms and periods of heavy rain, underground sewage tanks rapidly fill up. Treatment companies use storm overflows to release the excess water into rivers and seas, preventing sewers from overflowing above ground and spewing waste into streets and buildings.

The inevitable consequence is that when a storm overflow is activated – which happened 400,000 times in England in 2020 – untreated human waste joins the ejected rainwater, polluting rivers and seas. MPs have questioned whether companies use them too readily, straying beyond the ‘exceptional circumstances‘ in which they are permitted.

How we got here

When the Environment Bill first landed in 2019, it contained no provisions on this issue. The government addressed this in September 2021 by successfully tabling an amendment to their own Bill in the House of Lords placing a duty on the Secretary of State to ‘prepare a plan’ to combat discharges from storm overflows. Critics argued it was toothless, as it placed no pressure on water companies themselves to prevent the releases.

Accordingly, the Duke of Wellington introduced his own more demanding amendment, requiring companies to ‘take all reasonable steps to ensure that untreated sewage is not discharged from storm overflows’, with enforcement powers handed to the Secretary of State and Environment Agency. The Duke’s statement explained that the amendment would ‘eliminate, not simply reduce, the discharge of untreated sewage into rivers’.

By a comfortable margin and with five Conservative peers backing it, the amendment passed and returned with the Bill to the Commons. Despite intense scrutiny, the government rejected it, initiating a game of parliamentary ping pong about poo as the Bill moved back and forth between either House. The Duke finally withdrew his amendment at the second time of asking this week, accepting a compromise tabled by the government. After two long years, the Environment Bill will now become law.

Three regulatory uncertainties in the government’s compromise

The government’s compromise is a halfway house that requires water companies to ‘secure a progressive reduction in the adverse impact of discharges’. Although this makes the Bill stronger than it was before the Duke took on the government, three key regulatory problems remain.

1. Ambition – The government’s initial wish to simply have the Secretary of State prepare a plan, and the Duke’s amendment to totally eliminate the use of storm overflows, were black and white for water companies – the former required them to do very little, while the latter asked them to completely overhaul their practices. The government’s compromise sits somewhere in between the two, not least since a duty to reduce sewage releases ‘progressively’ is question-begging: by how much and by when? Environmentalists want to see the government forcing companies to take real action – and quickly. An ambiguous duty to gradually reduce sewage discharges between now and a distant point in the future is unlikely to wash.
2. Enforcement – The enforcement mechanisms in the Duke’s amendment would have made life difficult for water companies: releasing sewage would have led to action from the Environment Agency, with no get-outs for exceptional circumstances. The scope for punishing non-compliance under the government’s compromise, on the other hand, is murkier. With no clear definition and no fixed targets, a duty to secure ‘progressive reductions’ of sewage releases is open to interpretive legal arguments. If a company releases sewage 1000 times in 2021 and 999 times in 2022, is that a progressive reduction? If it releases sewage on fewer occasions in the second year but in greater volumes overall, should the Environment Agency take action? Without clarity, enforcement could be impossible.
3. Financial support – The government’s resistance on this issue has always stemmed from fears about its cost. The sewage systems that use storm overflows date back to Victorian times and DEFRA estimates that replacing them could cost up to £150 billion. In the absence of financial support from Westminster, it is not hard to see trouble further down the line – be it from companies unable to foot the bill or customers unhappy at increased tariffs.

With the Duke vanquished, the government will now be hoping that its compromise amendment can stave off damaging headlines – ‘Tories vote to pollute rivers’ is one narrative to avoid.