The new Environmental Bill: what does it have in store?

13 March 2020 by

Landscape Of The Beautiful Rolling Scottish Borders Countryside At Sunset

Introduction

On 26th February, parliament held its second reading of the government’s revised Environment Bill 2020, setting out its agenda for environmental reform and governance post-Brexit. It would provide the secretary of state with powers to create new regulations on air quality, water usage, waste disposal and resource management, biodiversity, and environmental risk from chemical contamination, and would create a new non-departmental public body, the Office for Environmental Protection (OEP), as an environment watchdog. The government describes it as the most “radical” environmental legislation to date, and sees the bill as paramount to ensuring both its 25 Year Environment Plan and its Net Zero Carbon Emissions by 2050 goal. 

The bill faced criticism both from parliament and from environmental groups. Greener UK, a coalition of 13 major environmental organisation, has said that as it stands, the bill “[would] not achieve what is has promised”, criticising it for lacking ambition and including no legal requirements for the government to prevent backsliding on EU environmental regulation. MPs, both Conservative and Labour, specifically criticised the lack of ambition in air quality. Others criticised the proposed structure of the OEP as being insufficiently independent of the government to match the ambitions of the bill to create “a world-leading environmental watchdog that can robustly hold the Government to account”. 

The Bill in Brief

The bill, as it stands, is divided into eight sections, which can be grouped into three major areas: giving the secretary of state the power to amend regulations in areas of environmental concern, legally enshrining biodiversity targets, and creating an environmental watchdog called the Office of Environmental Protection. All three are intimately tied to Brexit, with the government intending to use the bill to “transform our environmental governance once we leave the EU”.

New Powers

The bill would give new powers to create legislation to the secretary of state on air pollution, waste and resource efficiency, water management, and chemical controls (updating EU REACH legislation). 

Addressing air pollution, specifically fine particulate matter (PM2.5s), is a central concern of the bill. Clause 2 would require the secretary of state to set legally binding air quality targets:

Secretary of State must by regulations set a target … in respect of the annual mean level of PM2.5 in ambient air. (Clause 2(1) of the Queen’s speech). 

It would amend the Environment Act 1995 with a duty to report on air quality and give local government powers to help enforce targets. The bill would also give the government powers to recall vehicles which do not meet legal emissions standards.

Waste management and resource efficiency regulation is addressed in part 3. It would give the secretary of state power to create deposit return schemes, ban single use plastics, and introduce new charges for plastic carrier bags. It would also amend the Environmental Protection Act with regards to providing recycling and food waste collection and puts provisions in place for electronic waste tracking. Finally, it would illegalise the exporting of recycling to non-OECD countries (although, as Greener UK notes, “it is already illegal for the UK to send “polluting” waste to non-OECD countries” [Greener UK Briefing for Second Reading of Environment Bill]). 

Part 5 would amend the Water Industry Act 1991 to update drought plans, and would make changes to the provision of water abstraction licences. It would allow, under certain conditions, for abstraction licences to be revoked without compensation. The bill would also give the secretary of state power to change what are considered pollutants in water supplies. Part 8 would give the secretary of state powers to update and amend EU REACH legislation on chemical regulation, allowing for a smooth transition to a post-Brexit legislative framework. 

Creation of the Office of Environmental Protections

One of the key ambitions of the bill is to create a “world leading environmental watchdog” to hold the government and public bodies to account (the OEP). Its functions would include monitoring and advising on environmental law and targets set by the secretary of state, as well as reporting on public bodies’ failure to comply with environmental law and fielding complaints. In the case of a violation, the OEP would be able to issue ‘information notices’, then ‘decision notices’, and finally appeal to the Upper Tribunal for an environmental review (Clauses 32 – 36). It specifies that “where the Upper Tribunal makes a statement of non-compliance it may grant any remedy that could be granted by the court on a judicial review other than damages”.

The OEP would be made up of 5 – 8 non-executive members, appointed by the secretary of state (Schedule 1, 1) who would select the chief executive. The secretary of state would also decide on the OEP’s budget. 

Biodiversity 

Part 6, as well as Schedule 14, deals with regulating biodiversity, and would introduce a general duty “enhance biodiversity in England and Wales, updating the Natural Environment and Rural Communities Act 2006 ( Clause 93 (2)).  Schedule 14 would “[make] provision for grants of planning permission in England to be subject to a condition to secure that the biodiversity gain objective is met” (Schedule 14 2(1)): the ‘biodiversity net gain’ of any development would have to exceed the pre-development value by 10% (Schedule 14 2(2)). Part 6 would also require public consultations before certain tree felling. 

Part 7 deals with the creation of conservation covenants. Conservation covenants would be agreements between landowners and relevant responsible bodies which exist for conservation reasons. The responsible bodies could be public authorities such as local councils but also organisations such as charities (Clause 104).   Conservation covenants would bind both landowners and any succeeding landowners (Clause 107).

Criticisms of the Bill

As mentioned earlier, the Environment Bill is not without its critics. Greener UK wrote in their briefing for the second reading that:

considered as a whole, the bill does not achieve what has been promised: gold standard legislation, showing global leadership for responding to the environmental crisis, and a world-leading watchdog. (Greener UK Briefing for Second Reading of Environment Bill)

Their criticism, re-iterated by MPs during the second reading, largely fall under two broad headings: first, that the OEP as it is set out would lack the teeth to properly enforce its functions; secondly, that the powers to amend regulation provided throughout would give no legal guarantee against regulatory regression.

MPs expressed concerns about the independence of the OEP from the government in the bill’s second reading. As it stands, both the appointment of non-executive board members and allocation of budget would be the duty of the secretary of state. Evidence presented in pre-legislative scrutiny argued that non-departmental public bodies structured in this way are often subject to significant governmental oversight as a result of the appointment process and financial allocation. It doesn’t take too much of a cynic to see how this could hamper the goal of “robustly hold[ing] the Government to account”.

Furthermore, the proposed OEP has been criticised for its lack of teeth. Unable in its current form to fine public bodies, the strongest action the OEP could take following an investigation (after issuing a “information” and “decision” notice) would be to launch a judicial review. This would mark a change from the EU Commission’s enforcement role and the CJEU’s ability to fine countries for environmental non-compliance. Furthermore, the pre-legislative scrutiny of the bill’s previous iteration (Environment Bill 2019) advises that:

given the weaknesses of the traditional judicial review process for dealing with environmental cases, an enhanced enforcement procedure should be established for the OEP.

No such enhanced enforcement procedure has been included in the most recent draft of the bill. 

The bill has also been heavily criticised for leaving open the possibility of regression in environmental standards. The bill would give the secretary of state sweeping powers to change regulation following Brexit, but would make no legally binding commitments against loosening environmental standards in the four main regulatory areas (water, air, biodiversity, and waste). While the government has made oral commitments to non-regression, this would likely be tested in any free trade negotiations with the USA and other economic blocs. 

Conclusion

The bill, as it stands – and it may well significantly revised before it’s signed into law – is neither good nor bad. If the government is sincere in its attempts to implement its 25 year environmental plan, achieve net-zero carbon emissions by 2050, and become a world leader in environmental governance, the bill would give it the powers it needs to achieve this. However, given the external pressures of Brexit and the need to secure trade deals with countries like the US, it remains to be seen if this government really is climate-sincere.

Rafe is a journalist and aspiring barrister with an interest in environmental law and policy

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