In this Environmental Law News Update, Christopher Badger and Mark Davies take a look at the recently published Environment Bill.
The Bill is split into eight Parts, with Part 1 containing three separate chapters. Part 1 concerns Environmental Guidance, Part 2 Environmental Governance in Northern Ireland, Part 3 Waste and Resource Efficiency, Part 4 Air Quality and Environmental Recall, Part 5 Water, Part 6 Nature and Biodiversity, Part 7 Conservation Covenants and, last but not least, Part 8, the ever exciting, Miscellaneous and General Provisions.
It looks like a fairly comprehensive piece of legislation, although it has only been through its first reading in the House of Commons, so its contents might change.
The Government certainly thinks its comprehensive. When it was published, environment secretary Theresa Villiers said that it formed part of the ‘pitch to be a world leader on the environment as we leave the EU’, with it setting ‘a gold standard for improving air quality, protecting nature, increasing recycling and cutting down on plastic waste’.
The Bill requires the Secretary of State to introduce long term targets for priority areas of air quality, water, biodiversity, resource efficiency and waste reduction. These targets are set for 15 years in the future and the Secretary of State is under an express duty to endure that the targets are met.
There is to be a review of these targets by 31 January 2023 and subsequent five yearly reviews. The purpose of the review is to consider whether the targets would significantly improve the natural environment in England. The purpose of the review is not to see whether or not the targets are on course to be met, nor does the Bill specify any corrective action if it is evident that targets are or are likely to be missed.
Progress is to be reported annually in a report to be laid before Parliament. However it is important to remember that, for example, the Natural Capital Committee has been scathing in its criticism of recent ‘Progress Reports’ against the 25 Year Environment Plan. The net effect? Put simply, the Bill doesn’t yet require meaningful progress reports.
Does that mean that the “targets” are arguably misleading? Is their effect to essentially delay the urgency and necessity of environmental improvements to a date 15 years in the future? If there is no continuing public system of review to see whether we are ‘on target’, there is always the risk that the Bill simply kicks the can down the road. But surely that cannot be the intention.
There is a power to either revoke or lower targets. This can be done if the Secretary of State is satisfied that ‘meeting the existing target would have no significant benefit compared with not meeting it or with meeting a lower target’ or ‘because of changes in circumstances since the existing target was set or last amended the environmental, social, economic or other costs of meeting it would be disproportionate to the benefits.’
This raises the potential prospect that the Government will exercise a discretion to license heavily polluting projects on the basis they make economic sense. For example, can Heathrow be justified on the basis of its economic benefit, despite the potential environmental cost? Lowering the target requires a change in circumstances, but there doesn’t appear to be any materiality threshold that must be reached, only that the Secretary of State must consider that the ‘cost’ of meeting the target is disproportionate to the benefits. That ‘cost’ could include a lost opportunity cost or a loss of predicted economic benefits resulting from a major infrastructure project.
One welcome addition from a previous draft is the introduction of a two-yearly review of “significant developments in international legislation on the environment” that will then be “factored into the Environmental Improvement Plan and environment target setting process.” Whilst this doesn’t guarantee alignment (expressly ruled out by the current Government in the context of the UK-EU relationship) it does keep our place on the world stage closely under review.
The Secretary of State must prepare a policy statement on environmental principles, explaining how the principles should be interpreted and proportionately applied by Ministers of the Crown when making policy.
The environmental principles have been reduced to just 5. These are:
(a) the principle that environmental protection should be integrated into the making of policies,
(b) the principle of preventative action to avert environmental damage,
(c) the precautionary principle, so far as relating to the environment,
(d) the principle that environmental damage should as a priority be rectified at source, and
(e) the polluter pays principle.
A Minister of the Crown is now required to “have due regard” to the policy statement on environmental principles currently in effect. This is a slight change in wording from the previous draft, that only required Ministers to “have regard to” the environmental principles.
This raises the question as to what “due regard” actually means. It’s arguably a step up, potentially introducing a more objective element into the legal test to be applied. Due regard implies a degree of weight behind the decision-making process that was completely absent before. However, it is a long way from the establishment of an overarching environmental objective which a number of commentators actively campaigned for.
This legal framework is also a considerable distance from current EU law, which enshrines environmental principles in a constitutional treaty as a legal requirement, with a direct impact on all areas of EU policy that link with environmental protection.
Article 11 of the Treaty on the Functioning of the European Union reads:
“Environmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development.”
Article 191 of the TFEU begins with:
“1. Union policy on the environment shall contribute to pursuit of the following objectives:
preserving, protecting and improving the quality of the environment,
– protecting human health,
– prudent and rational utilisation of natural resources,
– promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.”
Part of the difference is that EU law has at its heart that overarching objective to improve the quality of the environment. The current draft of the Environment Bill sets out a method of influencing policy, but only where it is not considered disproportionate and apparently yielding little by way of result if the Minister of the Crown decides, after “due” consideration, that the proposed policy should not be restricted by an environmental concern.
The Office for Environmental Protection
The Environment Bill creates the OEP, whose principle objective will be to contribute to environmental protection and the improvement of the natural environment.
The OEP will have to prepare a strategy that sets out how it intends to exercise its functions and how it intends to avoid any overlap between itself and the Committee on Climate Change. The relationship between the OEP and the CCC is likely to be particularly important, not least because the CCC appears to be concerned that the OEP will have the effect of forcing it to dilute its environmental message.
The same strategy must also set out the OEP’s enforcement policy, in particular that sets out how it will determine whether failures to comply with environmental law are serious. And it appears to be envisaged that the OEP will uphold environmental standards predominantly through direct engagement and formal notices. Don’t expect the OEP to take many cases to Court.
The Government has committed to having the OEP up and running by 1 January 2021 but there is a huge amount of work to do. One key area is on the implementation of environmental law. The European Commission has historically looked not only at the extent to which law was transposed but also how it operated in practice. In theory, developing closer relationships with local authorities may yield quicker environmental results. However, the emphasis on local authorities may also pose a problem. Taking air quality as an example, if the principal obligations on tackling air quality are to fall on local authorities and their already stretched budgets, is the existence of the OEP likely to spur them to action?
And the Bill doesn’t address those concerns that have been raised about the independence of the OEP and its funding. So much of this is going to depend on how the OEP develops in practice.
The excluded matters
Matters that remain excluded from the scope of the Bill are disclosure of or access to information, the armed forces or national security and taxation, spending or the allocation of resources within government.
This has been the subject of much criticism already. In addition, there is no non-regression clause. However, Ministers must make a statement that, in their view, new Bills will not have the effect of reducing the level of environmental protection provided for by any existing environmental law or a statement that the Minister is not able to take that view.
Some specific highlights
Just quickly, because we are running out of time, to highlight three specific matters:
- There are powers to impose producer responsibility obligations under Schedule 4;
- Financial penalties will be able to be imposed for the emission of smoke in smoke-controlled areas in England, up to £300;
- The Environmental Protection Act 1990 is amended to allow for regulations to be introduced that will establish an electronic waste tracking system.
The Bill is a step in the right direction in terms of providing a much needed update on the legislative framework for the environment in the UK. However, there are real concerns about the efficacy of the Office for Environmental Protection; but well have to wait and see how that develops. It’s also worth mentioning that the Bill of course contains the usual statement that the Minister, in this case Theresa Villiers, is satisfied that the provisions of the Bill are compatible with the European Convention on Human Rights – after the success of Urgenda in the Netherlands, this raises the prospect of similar human rights challenges against the finalised Act.
Critically, because net zero is now enshrined in law, policy and practice going forwards have to promote environmental objectives, otherwise in just a few years time the UK will have to implement a wall of legislation, bringing with it serious potential economic costs. It may be easy to point out certain arguable flaws in the drafting of the Bill but ultimately there can be only one direction of travel.
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