Environmental Law News Update

In this latest Environmental Law News Update, Mark Watson QC, Christopher Badger and Mark Davies consider evidence given to the Environmental Audit Committee about the new Office for Environmental Protection, environmental announcements in the Treasury’s Spring Statement and publication of the European Commission’s ‘Strategic Approach to Pharmaceuticals in the Environment’.

Aberdeen for the new OEP?

At the Environmental Audit Committee on 20 March 2019 Michael Gove (Secretary of State for Environment, Food and Rural Affairs), and Dr Thérèse Coffey (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs) gave evidence on a number of topics, with some of the key overlapping themes being the Office for Environmental Protection (“OEP”), the scope for agreement or tension between UK central government and the devolved assemblies in relation to environmental regulation and the provisions in place in the event of a “no deal” exit of the UK from the EU.

The OEP’s function, essentially, is to fill the role currently played by the European Commission when the UK exits the EU (recently potentially rescheduled from 29 March 2019 to either 12 April 2019 or 22 May 2019); but whilst the European Commission’s enforcement powers relate to the UK as a whole, the OEP’s role cannot extend to encompass devolved assemblies, absent agreement by those assemblies. The Scottish Government published its “Consultation on Environmental Principles and Governance in Scotland” on 16 February 2019 and the Welsh Government has recently followed suit on 18 March 2019 with its consultation, “Environmental Principles and Governance in Wales Post European Union Exit”. In the absence of a Northern Ireland Executive, no similar consultation can take place in relation to that devolved government and it is understood that there will be interim alignment with the UK central government position as to the role of the OEP. It remains to be seen whether and to what extent the other two devolved governments will agree to the OEP having regulatory oversight over their arrangements.

Against this background, it was significant that during the Committee session on 20 March 2019 the Secretary of State proposed that “if there was a body that could cover the whole UK” his former home-town of Aberdeen could be the potential home for the OEP and its staff. He advanced this suggestion on the basis that Aberdeen is currently the location to one of the two offices of the Joint Nature Conservation Committee; moreover, he stated that this potential site for the OEP had been raised by him with Fergus Ewing, Scotland’s Cabinet Secretary for Rural Economy. However, a proposal to locate the OEP north of the border would only be practical in circumstances where the Scottish Government were to agree to oversight of its devolved responsibilities by the OEP, and it remains to be seen whether this is remotely likely in the current climate.

In terms of the size and composition of the OEP, the Secretary of State suggested that he would expect it to have a staff of between 60-120 full time equivalent employees (as compared with what he estimated as being a UK government employed staff of “in the two-hundreds” in relation to Directorate-General for the Environment in Brussels).

In the arguably unlikely event that the draft Brexit Withdrawal Agreement is approved by Parliament later this week or shortly thereafter, the transitional period will come into place and the UK will continue to be governed by EU law until 31 December 2020. In this event, there will be reasonable time to enable the UK central government to set up and establish the OEP (and for the devolved governments, if they choose to do so, to set up their own equivalent bodies).

However, in the event of a “no deal” Brexit there will be no transitional protections and the establishment of the OEP (and any devolved analogues) will be many months away. The Secretary of State was specifically asked by the Committee about any interim arrangements in place to fill the void until the OEP could be established and functioning. He replied that there would be an “interim secretariat” which would provide an essential level of function until the OEP was set up and in a position to discharge its duties. The Under Secretary of State explained that the “interim secretariat” would consist of only 16 full time civil servants but would be ready, if necessary, to step into the breach on 30 March 2019, albeit that “we don’t want to get into big announcements about the interim secretariat because we are all still hoping that we won’t be leaving on Friday 29th March without a deal”. What could possibly go wrong?

2019 Spring Statement: The Environment

On 13 March 2019 Philip Hammond delivered the Government’s 2019 Spring Statement. Key environmental announcements include:

• Following consultation, the Government will use the forthcoming Environment Bill to mandate biodiversity net gain for development in England;
• Later this year the Government will launch a comprehensive global review of the link between biodiversity and economic growth to be led by Professor Sir Partha Dasgupta, Emeritus Professor of Economics at Cambridge;
• 445,000 square kilometres of ocean around Ascension Island will be designated as a Marine Protected Area;
• A ‘Future Homes Standard’, mandating the end of fossil-fuel heating systems in all new houses from 2025;
• Calls for evidence on whether all passenger carriers should be required to offer genuinely additional carbon offsets and on the Business Energy Efficiency Scheme; and
• Proposals to require an increased proportion of green gas in the grid, with a view to advancing decarbonisation of the mains gas supply.

Once again, it was a speech weak on environmental policies. The 25 year Environment Plan proposes significant change without detailing the policy initiatives that are necessary to get the UK there. Back in October we commented on the Budget as follows:

“… it is impossible to escape the feeling that the government is highly dependent on the role of the private sector to spearhead environmental progress through innovation and R&D and that it is lacking any form of concrete plan on just how to meet the UK’s environmental obligations in the future, particularly in areas such as climate change.”

Little in our view has changed.

European Commission publishes its ‘Strategic Approach to Pharmaceuticals in the Environment’

On 11 March the Commission published its ‘Strategic Approach to Pharmaceuticals in the Environment’. The Approach satisfies a requirement imposed by Article 8c of the Priority Substances Directive that the Commission must propose a strategic approach to the pollution of water by pharmaceutical substances. It starts by noting that whilst the treatment of many diseases in humans and animals relies on access to effective pharmaceuticals, the pollution caused by some is an emerging problem with ‘well-documented evidence of risks to the environment and, in relation to antimicrobial resistance, human health’.

In relation to the environment, the Approach records an example of the damage of pharmaceutical pollution as the exposure of male fish to such concentrations of the main ingredient in the contraceptive pill that the fish become feminised and unable to reproduce (those with long memories may recall that in 2007 endocrine – hormones to most of us – disrupters were blamed for twice as many girls being born as boys in some Arctic villages, see here. The Commission already has a Strategy on Endocrine Disruptors). In this blog we recently reported the effects of illicit pharmaceuticals (cocaine) on eels in the Thames. To this author’s mind, coked up eels may be one thing, but the capacity of pharmaceuticals to potentially impact of the reproductive capabilities of animals, and potentially humans too, is another altogether.

In respect of the potential impacts on human health through antimicrobial resistance, whilst these have not yet been clearly demonstrated, as the Approach makes clear, this is still an issue that is being taken seriously. So seriously in fact that, ‘the issue of pharmaceutical residues cannot be ignored’ and is said to justify a precautionary approach consistent with the Commission’s proposals to introduce a relevant parameter into the Drinking Water Directive. Here the Approach notes that of particular concern are the possible emissions from some antimicrobial manufacturing plants in third countries, which could be contributing to the development and spread of antimicrobial resistance at a global level.

The Approach notes that more information is required to understand the levels of risk posed by pharmaceutical pollution and thus states that its main objectives are to:

• Identify actions to be taken or further investigated to address the potential risks from pharmaceutical residues in the environment, not least to contribute to the Union’s action on combatting antimicrobial resistance;
• Encourage innovation where it can help to address the risks, and promote the circular economy by facilitating the recycling of resources such as water, sewage sludge and manure;
• Identify knowledge gaps, and present possible solutions for filling them; and
• Ensuring that actions to address the risk do not jeopardise access to safe and effective pharmaceutical treatments for human patients and animals.

Encouragingly, the Commission’s approach is not limited to pharmaceutical producers, but instead takes a holistic approach, encompassing medical professionals, water treatment plants, the agriculture industry and governments as well, all of whom will be required to meet the challenges posed.

There doesn’t appear to be a need to be stocking up on willow bark immediately, but this is certainly one area to keep an eye on.

The Commission’s announcement may be found here

We published March’s Environmental Law Podcast recently – a monthly round-up of the latest developments in environmental law.

To keep up-to-date click here to subscribe to the mailing list. If you have any comments or suggestions please contact Bridget Tough at bridget.tough@6pumpcourt.co.uk