Environmental protection after Brexit

16 May 2018 by

“When we leave the EU, we will be able to build on the successes achieved through our membership, and address the failures, to become a world-leading protector of the natural world. We have also published the 25 Year Environment Plan, which sets out this Government’s ambition for this to be the first generation that leaves the environment in a better state than that in which we inherited it. These good intentions must be underpinned by a strengthened governance framework  that supports our environmental protection measures and creates new mechanisms to incentivise environmental improvement.”

Michael Gove has announced his plan for a UK Commission on the environment, for which the consultation paper is out now. The paper sets out the principles laid behind the Environmental Principles and Governance Bill which will be published in November this year.  This proposed law is said to mark the creation of a “new, world-leading, statutory and independent environmental watchdog to hold government to account on our environmental ambitions and obligations once we have left the EU.”

The proposed Bill may not see the light of day, if today’s events are anything to go by.  This afternoon the House of Lords voted (294:244) to include the principles of environmental protection in the European Union (Withdrawal) Bill, rather than introducing a separate piece of primary legislation as set out in this consultation document: the successful amendment is first up here.

However things turn out in the Commons, it is worth attending to the plans for maintaining and enhancing environmental protection in a post-Brexit UK.

The proposed environmental bill promises

to enhance our environment by replenishing depleted soil, planting trees, supporting wetlands and peatlands, ridding our seas and rivers of rubbish, reducing greenhouse gas emissions, cleansing the air of pollutants, developing cleaner, more sustainable energy and protecting threatened species and habitats. It also outlines an approach to agriculture, forestry, land use and fishing that puts the environment first.

The environmental watchdog that will implement and supervise these proposals will take the place of the EU Commission, and “will be embedded in the UK’s parliamentary democracy.”  We have chosen to devolve environmental policy to the administrations of Northern Ireland, Scotland and Wales. Of course, the environment does not observe boundaries, which is why regulation by the EU is said to be more effective than state governance. This consultation paper therefore invites the devolved administrations in the UK  to address the issues in this consultation jointly, with a view to co-designing the proposals for the new environmental body and principles with them “to ensure they work more widely across the UK”.

There is a plenitude of international and regional principles relating to conservation, climate change, biodiversity and pollution. The ones that affect the UK directly are those enshrined in the Treaty of the Functioning of the European Union. The TFEU requires EU environmental policy to be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. As an example of how this works in practice, the CJEU case law on chemicals, waste and habitats indicates how the precautionary principle is applied and enforced in those areas. The proposed Bill promises to preserve this approach.

The consultation paper presents two alternative proposals. Option 1 is to have environmental principles enshrined in primary legislation which would show that the UK is strongly committed to leaving the environment in a better state than that in which we inherited it. It would also make sure that future governments do not change this commitment to well-established environmental principles without reference to Parliament. On the other hand, the authors of the paper acknowledge that not listing the principles (Option 2) would offer greater flexibility for Ministers to adopt different principles in their policy statement as scientific knowledge and understanding of the nature of the environmental challenges facing this country and the wider world evolves.

Whichever option is adopted, the aim of the scheme is to is to afford at least the same opportunities to submit environmental complaints and concerns as currently exist with the EU institutions and in domestic law, via judicial review and complaints to the relevant regulator or Ombudsmen. Unlike these other channels the new body would have the advantage of a “specific and confined focus on the environment.” It would also concentrate on issues concerning alleged failure by government authorities to implement the law rather than other matters dealt with by the Ombudsmen such as poor service or miscommunication.

The new body would also not face conflicting interests such as those presented to the European Commission in its role in enforcing EU law. As the paper points out, the EU’s activities sit within the unique circumstances of creating and enforcing a union and a single market among the Member States. The mechanisms that uphold the functioning of a single market are not always ones that ensure high environmental standards; in fact in some instance they lie flat against such interests.

The proposed procedures for environmental protection would only operate against public authorities. There is no question that the new body would be concerned with enforcing environmental law against third parties such as private businesses. These will remain the responsibility of delivery bodies such as the Environment Agency and Natural England. But those bodies themselves – broadly known as Non Ministerial Departments  – will be subject to scrutiny by the new body. Other Non-Ministerial Departments include the Forestry Commission, Ofwat and the Marine Management Organisation. Non departmental public bodies would also be subject to the jurisdiction of this new Commission, including utility companies such as water and power companies, the Crown Estate, as well as NDPBs such as the Coal Authority and Homes England.

However, the government’s view is that the new environmental watchdog would only be able to act against central government – like the EU Commission – thus ensuring that its focus sufficiently strategic (by addressing its powers to central government only), while still being able to require central government to address failures by other bodies.

At the heart of this consultation, and indeed the Westminster debates, is in the question: what is the target subject matter? The Germans have a good word for it: Umwelt.  Their noun is not as weighted as our “environment”.  One person’s “environment” is  agriculture, whereas another’s is plastic-free rivers. An institution tasked with the project of protecting and even enhancing the environment will have to bridge these gaps.  At least one potential area of dispute – climate change – is put beyond its reach.  Climate change is already covered by the Climate Change Act 2008 and its implementing body, the Committee on Climate Change. This is an independent, statutory body which advises the UK government and devolved administrations on emissions targets and reports to Parliament on progress made in reducing greenhouse gas emissions and preparing for climate change. The plan outlines this government’s intention to enhance our environment by replenishing depleted soil, planting trees, supporting wetlands and peatlands, ridding our seas and rivers of rubbish, reducing greenhouse gas emissions, cleansing the air of pollutants, developing cleaner, more sustainable energy and protecting threatened species and habitats. It also outlines an approach to agriculture, forestry, land use and fishing that puts the environment first.

Given that climate change is the remit of the CCC  it is proposed that the new body’s remit should not replicate this coverage.

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