Environmental Law News Update

May 31, 2023

In this Environmental Law News Update, Jemima Lovatt considers the latest rejection of a non-regression clause by the Commons, an investigation launched by the OEP into ammonia advice in Northern Ireland and a new biodiversity duty for public authorities in England.

Non-regression on Environmental Rules Rejected by the Commons

The political drama of the Retained EU Law (Revocation and Reform) Bill continues.  The major shift by the Government has been to replace the automatic sunset clause with a limited list of 587 retained EU laws they intend to revoke on 31 December 2023. More changes are sought. On Wednesday last week, the House of Commons debated amendments made by the House of Lords including proposed amendment 15 on ‘non-regression’.  This would require the UK not to undo, either by legislation or lack of enforcement, the harmonised standards on environmental protection that were in place on 31 December 2020 when the UK left the EU.

The intention behind the amendment is to protect our existing environmental and food standards. The Government rejected this amendment. The Solicitor-General argued that the conditions relating to environmental protections and food standards were unnecessary because the Government have already stated that it will not lower environmental protections or standards, and instead seek to simplify regulation without lowering standards. The Government cited the Fisheries Act 2020 and the Agriculture Act 2020 as key examples of progress that support the government’s claims that our environmental laws continue to be world leading.

Numerous opposition MPs expressed their deep concern at the Commons voting against amendment 15 in contrast to the need to strengthen regulation to protect nature and biodiversity. They argued that rejection of amendment 15 puts our environment and food standards at great risk. In response, Vicky Ford, Conservative MP for Chelmsford, tried to make the case for voting against amendment 15 on the grounds of not wanting to add bureaucracy and delay in the making of new environmental laws. However, given that amendment 15 simply sought to confirm, in legal terms, assurances the government have made, time and time again, not to lower environmental or food standards, it doesn’t appear that this argument properly reflected either the purpose or the potential effect of amendment 15.

Ultimately, following the debate, the Commons rejected amendment 15 of the Retained EU Law Bill. The debate can be found here.

Investigation Launched by the Office for Environmental Protection

Ammonia may be a colourless gas but its negative impact can be seen in local biodiversity and people’s health. In Northern Ireland, the main source of ammonia comes from livestock manure. Ammonia is deposited as nitrogen, impacting species composition through soil acidification, directly causing toxic damage to leaves and altering the susceptibility of plants to frost, drought and pathogens (Royal Society, 2018). In Northern Ireland, ammonia emissions from agriculture have increased by 19% between 2009 and 2019 (DAERA NI, 2023) with the Office for Environmental Protection CEO Natalie Prosser describing the problem as “systemic” and “one of the most pressing environmental concerns at this time in Northern Ireland”.

This concern has led the OEP to launch an investigation into DAERA’s advice on ammonia emissions and whether the Department has failed to comply with environmental law in the guidance it has given to local planning authorities and applicants seeking planning permission for livestock developments. This will be the OEP’s first foray into environmental affairs in Northern Ireland and it will be extremely interesting to see how it will play out.

Where an investigation finds a failure to comply with environmental law, the OEP will first seek to resolve the non-compliance through cooperation with the public authority. If that fails, it can use stricter enforcement powers including court proceedings to bring a public authority to within its legal duty. The OEP’s press release can be found here. 

New Biodiversity Duty for Public Authorities in England

Defra have issued some further guidance reminding local authorities in England that they must consider by 1 January 2024 what action they plan to take to meet the strengthened ‘biodiversity duty’ under the Natural Environment and Rural Communities Act 2006.  This was amended by the Environment Act 2021 to require them to further the conservation and enhancement of biodiversity. They must then agree policies and specific objectives based on their consideration and then act to deliver those policies and achieve the objectives.

Relevant to this consideration stage will be the strategies on Local Nature Recovery, species conservation and protected sites, which the Environment Act 2021 also introduced. In particular, public authorities are required to be aware of how these strategies affect land that they own or manage, and what actions can be taken to contribute to those strategies. Furthermore, public authorities are encouraged to review their internal policies on transport, waste, water, procurement and light to consider how they impact biodiversity.

All of this is well-intentioned, and this new guidance on the biodiversity duty from May 2023 states that “preparation of local nature recovery strategies is expected to begin across England from April 2023”.  As those on the ground will know, that timetable has slipped.  We still do not know for sure who will be the ‘responsible authority’ appointed and funded by Defra for each of the 50 or so local nature recovery strategies.  They will also take between 12 and 18 months to produce. We also have no guidance on how local planning authorities should take the LNRS into account.

Suggested actions for public authorities to consider include: using native and sustainably sourced trees, creating dedicated spaces for wildlife, leaving dead wood safely in places in woodlands to provide additional habitat, maintaining planted trees, reducing the use of herbicides, pesticides, peat and water, implementing measures to prevent the spread of invasive species and plant disease, building nest boxes for birds, bats and other animals, adding green walls or roofs to existing or new buildings, enhancing protected sites such as local nature reserves, when maintenance work is carried out to minimise disturbance to wildlife, what chemicals to use on premises, and whether to reduce vegetation around buildings.

Finally, local authorities will at least have more time to report back.  The first reporting period for them to write and publish a biodiversity report on what action they have taken is 1 January 2026. The report aims to communicate the progress made and to share best practice.