Movement on new legal framework for air pollution, water quality and nature conservation

Reintroduced to Parliament on 12 May, the Environment Bill (the “Bill”) is expected to enter into force in autumn 2021, ahead of the UK hosting COP26 in Glasgow in November.

The Bill sets out a legal framework for environment governance and the setting of long-term and legally binding targets, plans and policies on a range of matters which include:

• Targets to improve the natural environment, air quality, water, biodiversity, resource efficiency and waste reduction.
• The integration of environmental considerations into policy making.
• The establishment of a new body - the Office for Environmental Protection (the “OEP”).
• New duties on legislators to make parliamentary statements and reports about the impact of polices on the environment.
• A new biodiversity gain in planning.
• Increased requirements that go towards reducing waste and increasing resource efficiency, including requirements such as including future maintenance and repair obligations on retailers.

We consider the Bill in its current form, including recently announced amendments.

Targets for the natural environment, air quality, water, biodiversity, resource efficiency and waste reduction

The Secretary of State may set long term (15 years or more) targets in respect of any matter which relates to (a) the natural environment, or (b) people’s enjoyment of the natural environment. However, in priority areas, at least 1 long term target must be set. The priority areas being water regulation, the protection of biodiversity in developments and projects, the regulation of air quality and resource efficiency and waste reduction.

There is a separate requirement to set a target (not necessarily long term) in respect of PM2.5 (fine particulate matter with a diameter of less than 2.5 micrometres across).

Importantly, it is the duty of the Secretary of State to ensure that the targets set are met. There are also reporting and review requirements.

There are other provisions regarding the regulation of chemicals enabling the amendment of the current regime, and on 18 May 2021, the Environment Secretary George Eustice announced that the Government would set a new legally binding species abundance target for 2030 which will be introduced into the Bill. The Government will also introduce a new power to refocus the Habitats Regulations to ensure that the duties within protected sites, and in the wider countryside and urban areas, reflect the updated targets and environmental framework it creates.

Government policy statement on environmental protection

The Bill will require the Secretary of State to prepare a policy statement on environmental principles explaining how environmental protection should be integrated into policymaking in general. The Bill will create a duty on Ministers of the Crown, to have due regard to the policy statement on environmental principles when making policy, unless any application would have no significant environmental benefit or would be disproportionate to the environmental benefit. The draft policy statement is open for consultation until 2 June 2021.

“When making policy, and where relevant, Ministers will need to consider

• An integration principle - policy-makers should look for opportunities to embed environmental protection in other fields of policy that have impacts on the environment.
• A prevention principle - government policy should aim to prevent, reduce or mitigate environmental harm.
• Rectification at source - if damage to the environment cannot be prevented it should be tackled at its origin.
• The polluter pays principle - those who cause pollution or damage to the environment should be responsible for mitigation or compensation.
• The precautionary principle - where there are threats of serious or irreversible environmental damage, a lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

The draft policy statement notes that when considering the environmental impact of a policy, policy-makers also need to take a proportionate approach; the environmental effects that should be considered are those which are both a) likely to occur, and b) likely to have a substantial impact. Environmental impacts will be different for each policy, and these will need to be assessed on a case-by-case basis.

The policy statement provides that, where a future bill contains environmental law, the relevant Minister must acknowledge this and make a statement to the effect that, in their view, the bill will not have the effect of reducing the level of environmental protection provided for by any existing environmental law or they must declare they are unable to make that statement but the Government nevertheless wishes to proceed. Campaigners had advocated for the inclusion of a non-regression provision (i.e. that there would be no regression of EU environmental protection laws), whereas this is absent from the Bill.

Biodiversity gain in planning

The Bill introduces a requirement for proposed developments to meet a biodiversity gain objective. The biodiversity gain objective will be met if the biodiversity value attributable to the development exceeds the pre-development biodiversity value by at least 10% and the Bill sets out provisions for how this is to be calculated. The biodiversity value of the development also includes any registered offsite biodiversity gain allocated to the development (to be secured by a conservation covenant or planning obligations and to be maintained for at least 30 years), and any biodiversity credits purchased for the development (with the Secretary of State to make arrangements to enable the purchase of such credits). The Bill contains provisions to ensure that all planning permissions (subject to certain exceptions) will contain a pre-commencement condition requiring the submission and approval of a biodiversity gain plan. The biodiversity gain plan must contain specified information, and the local planning authority can only approve the plan if the biodiversity gain objective is met. The Government is expected to provide further guidance on how the new requirements for biodiversity gain in a development context will function and detail on transitional provisions.

Resource efficiency

The Bill contains a raft of provisions heightening duties on producers, retailers and distributors to take responsibility for resource usage, promoting the re-use, recovery and recycling of products and materials. There are powers to make regulations:

• on the resource efficiency of bringing a product to market - the materials, energy and techniques used during production and manufacture;
• regarding repair, maintenance, or otherwise prolonging the expected life of goods placed on the market;
• requiring the payment of sums in respect of the costs of disposing of products and materials and to extend obligations on the supply chain to pay the full net cost of managing their products when they are later disposed of;
• allowing for mandatory standards to be set by the Government for energy-related products;
• putting in place restrictions in relation to the use of forest risk commodities; and
• establishing charges for single use plastic items supplied in connection with goods or services and incentivising consumer behaviours with deposit schemes for returnable goods e.g. packaging or containers.

If implemented fully, these powers will impact greatly on manufacturers and producers as regards the products that they place on the market, how they are sold, as well as consumer communications on resource efficiency.

Other provisions relate to separate collection of waste streams for England and electronic waste tracking. Topically, other powers include the ability to create provisions prohibiting or restricting (a) the importation of waste; (b) the landing and unloading of waste in the United Kingdom; (c) the exportation of waste.

The OEP

Following the UK’s exit from the EU, the OEP will be created to scrutinise environmental law and policy, and has some powers to attempt to enforce environmental protection measures.

The Bill requires the OEP to monitor progress (a) in improving the natural environment in accordance with the current environmental improvement plan, (b) towards meeting any targets set and (c) towards meeting any interim targets set. The OEP must monitor the implementation of environmental law and may report on any matter concerned with the implementation of environmental law but excluding overlap with the work of the Committee on Climate Change. The OEP will have the ability to report on international developments of significance. The Secretary of State must respond to any reports prepared and publish the response but will not be bound by them.

The OEP will be launched on an interim basis this July, before the Bill receives royal assent.

Proposed new powers regarding environmental standards relating to vehicles

The Secretary of State will also be able to make regulations relating to the recall of vehicles that do not meet relevant environmental standards with powers such as compulsory product recall notices.

What’s next?

The delayed Environment Bill, with amendments, is expected to receive royal assent this autumn. The Bill will put in place a framework for the setting of more ambitious environment targets. Much will be determined by the passing of laws and policies to flesh out and support the framework, once enacted, many of which are already being consulted upon. It comes at a critical time for engagement on environment and biodiversity law and policy.

Co-authored by Oliver Bristow & Sam Porter.