Environmental Law News Update

In this latest Environmental Law News Update Christopher Badger and Mark Davies consider the new environmental watchdog proposed by DEFRA, a report assessing the key issues for environmental equivalence post-Brexit, and the Public Account Committee’s assessment of DEFRA’s Brexit preparations.

DEFRA launches environment watchdog consultation

DEFRA has launched a 12-week consultation in which it states that a new Environmental Principles and Governance Bill will create a “new, world-leading, independent environmental watchdog to hold government to account on [the UK’s] environmental ambitions and obligations” once the UK has left the EU.

Issues on which DEFRA is consulting include:

• Should the new independent body have the power to provide independent scrutiny and advice of implementation of environmental legislation and government policy?
• To what extent should it be able to handle complaints, conduct investigations and require the provision of information?
• To what extent should the new body be able to supervise the government delivery of environmental law and take formal compliance action? Any potential powers to take enforcement action against the government would be limited to where a “legal obligation” exists. Critically, it isn’t suggested that the new body will be able to take the government to court.
• Should the new watchdog’s remit extend to public bodies outside central government departments? If so, this will presumably require additional resources, otherwise the government risks diluting the body’s focus on the most significant national or strategic issues.
• To what extent should the remit include oversight of international environmental agreements?

It is also intended to create a new statutory statement of the environmental principles that will guide the UK, drawing on the current international and EU environmental principles. Two options are canvassed – either as part of primary legislation or as a policy statement.

It is suggested that setting out the principles in a policy statement would allow for more flexibility to keep the list of principles up to date responding to the latest scientific and economic developments. However, it is arguable that the latest scientific and economic developments are already required to be taken into account, under Article 191(3) of the TFEU. Green bodies are already extremely concerned that critical principles of environmental law need to be enshrined in law.

Further, the application of the policy statement would not extend to individual regulatory decisions or administrative actions by government or its delivery bodies and the consultation relates only to environmental governance in England.

DEFRA has said that the new body and environmental principles will not be in place for exit day but will in fact be introduced in time for the end of the implementation period in December 2020.

The consultation document can be found here.

The deadline for responses is 2 August 2018.

An independent assessment of Brexit and environmental equivalence

The Institute for European Environmental Policy (“IEEP”), an ‘independent, non-profit research institute dedicated to advancing an environmentally sustainable Europe through policy analysis, development and dissemination’, published its report, ‘Brexit and the level playing field: key issues for environmental equivalence’, on 8 May.

The report discusses risks, highlighting the risk to competition, to the EU created by the juxtaposition of statements from UK Ministers, who have stressed their commitment to high environmental standards, with the potential for reduced standards as the UK pursues free trade agreements. The IEEP further considers how the EU could approach negotiations and suggests potential solutions to governance arrangements.

The point is made, validly in this author’s opinion, that should the UK gain a competitive advantage by lowering environmental standards, that may reduce the appetite and political space available in the EU for ‘ambitious environmental policy’ in the future. The possible effects on competition are not the only focus of the report with it also considering the potential negative impact on transboundary issues.

The suggestions put forwards for principles the EU should follow in negotiations to avoid any inequivalence post-Brexit are:

• Avoiding negative impacts on EU environmental outcomes;
• Avoiding competitiveness impacts on EU businesses;
• Ensuring that the UK delivers on environmental commitments it makes in the negotiations;
• Allowing for future increases in environmental ambition throughout Europe, and;
• Avoiding erosion of EU27 political commitment to environmental protection over time.

One might think it perhaps easier said than done to bear all of those principles in mind.

Tying in with DEFRA’s consultation on the new environmental watchdog (see above), the authors of the IEEP report have warned against the possibility of the UK making commitments to deliver environmental outcomes ‘in principle’, without accompanying them with any concrete obligations to deliver them ‘in practice’. Setting aside the obvious cynicism in the report, which you may or may not feel is well founded, the authors raise a valid point and one which should be fed into the consultation; a watchdog with no teeth is likely to be all principle and no practice.

The importance of the enforceability of environmental rights is a position recognised in the report’s section on governance, with the authors noting that within any new legislative underpinning on a future trade agreement between the UK and the EU there should be, “scope for the courts to require Government to take action”.

The report may be downloaded in full here.

The Public Accounts Committee’s damning assessment of DEFRA’s Brexit preparations

On 4 May the House of Commons Public Accounts Committee published a report roundly criticising the preparations of DEFRA for Brexit. The Committee took evidence in preparing its report on 7 March 2018.

The Committee did note both that DEFRA’s preparations are, ‘being hampered by the pervasive uncertainty about the UK’s future relationship with the EU’, the corollary being that DEFRA is having to work up options for deal, no-deal, or transition scenarios, and that the Department’s burden during the Brexit process is larger than most given that the bulk of its areas of responsibility are framed by EU legislation.

To put DEFRA’s burden in perspective, it is, according to the Committee, responsible for 43 of the 300+ Brexit-related workstreams in government, with just over half having an IT component, and some requiring the establishment of new regulatory bodies (vis-à-vis the consultation, see above). DEFRA is being asked to deliver all of this, the report goes on to concede, against a backdrop of major new legislation on agriculture and fisheries and ongoing business and efficiency savings of £138 million in 2018-2019.

If you weren’t filled with sympathy for the civil servants at DEFRA before, you may (perhaps indeed should) be now.

Some of the Committee’s conclusions and recommendations are stark:

• Planning for deal, no-deal and transition scenarios is the fault of uncertainty – DEFRA must, by July 2018, publish on its website information and timelines setting out how and when they will be able to provide more explicit guidance to businesses and stakeholders on preparing for Brexit.
• The Treasury must improve its processes for approving Brexit funding so departments have certainty about funding and can plan effectively.
• With DEFRA estimating that 80% of its functions are in devolved areas of policy it must, by July 2018, report to the Committee on its engagement with devolved administrations.
• It is unrealistic to expect DEFRA to achieve its efficiency savings alongside delivering Brexit and its other work, and it should acknowledge that it, ‘cannot continue to do everything it is currently doing’ and should write to the Committee by the end of June 2018 with processes for prioritisation.
• Perhaps most worryingly: ‘There are substantial risks, including disruption to the agri-food and chemical industries if DEFRA’s IT systems are not ready.’ – the Committee noted the potential for disruption and requested an update, again by the end of June 2018, on the progress of the new IT systems.

Rather alarmingly there is talk in the report of ‘manual processes’ if IT systems are not ready in time…

We published our Environmental Law Video Newscast last week – a monthly round-up of the latest developments in environmental law.

Chambers UK Guide to Environmental Law 2018 was published this month and written by Six Pump Court’s Environmental Law Team. You can also use this link to access the full-text pdf version. The Guide provides easily accessible information to help navigate environmental law in the UK and covers the environmental regulatory framework, environmental protection, developments in policy and law, enforcement, liability and disclosure requirements as well as the law as it relates to contaminated land, waste, asbestos, climate change and emissions.

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