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Impacts of Delay on the Environment Bill

Impacts of Delay on the Environment Bill

Environment Bill

The Environment Bill is intended to replace some aspects of the EU environmental regulation structure and to set long-term, legally binding environmental targets to build a ‘fairer, greener, more resilient future’.[1].

Due to covid-19, the Environment Bill has faced significant delays following its genesis in 2019, the largest being during the Public Bill Committee stage in 2020.  The Bill had the first day of the Report Stage on 26 January 2021, but further progress of the Report Stage has been delayed.  

This article considers the implications of this delayed progress in four particular respects: governance and Brexit, principles and targets, covid, and air pollution and biodiversity. 

Governance and Brexit

The most notable implication of the Bill’s delay was that it did not pass before the end of the Brexit transition period.  The Bill was supposed to be in place by July 2020 to establish a new ‘world class regulator’. The role that was played by the European Commission as an environmental watchdog is not currently being played for the UK by any organisation.  Until the Environment Bill receives Royal Assent, there is a governance gap within environmental law in the UK.  

The timeline of delays has been apparent following the first national lockdown in March 2020.  The Bill reappeared in June, then September, next in November, and was most recently seen in the Commons for the first day of the Report Stage in January 2021.  The delays in the Bill’s progress have necessitated separate action being taken to seek to advance the governance and regulation functions to be delivered by the Bill.  

This was highlighted by the chairs of the EFRA and Environmental Audit select committees, who in October 2020 published a joint letter to the Secretary of State asking what legal functions the OEP will possess, what steps it would be empowered to take and how independent and approachable it will be in order to understand how it will address the gap in governance [2].

The most significant announcement relating to the Bill to date was in December 2020, when Dame Glenys Stacey was appointed as the Chair of the Office of Environmental Protection (OEP).  Defra has set-up the OEP in an interim form as from January 2021, known as the Interim Environmental Governance Secretariat.  

It was announced [3] in March 2021 that, from July 2021, there would be an Interim Office for Environmental Protection, set up in non-statutory form, to provide independent oversight of the government’s environmental progress and to accelerate the creation of the OEP proper.  The OEP would formally come into existence following Royal Assent being given to the Environment Bill, expected to be in Autumn 2021.  

The Interim OEP is expected to:

  • publish an assessment of progress in relation to the implementation of the government’s 25 Year Environment Plan
  • develop the OEP’s strategy and enforcement policy
  • receive complaints from members of the public about failures of public authorities to comply with environmental law
  • progress its operational establishment

Whilst steps are therefore being taken to address the gap in governance caused by the delays to the Bill, it is clear that the functions of the OEP will not be being properly performed until perhaps 2022, a year after the end of the EU exit transition period.  In addition, there is still uncertainty about some aspects of the Environment Bill and the delays suffered by the Bill have exacerbated this. 

Principles and targets

A policy statement on environmental principles must be prepared by the Secretary of State under clause 16 of the Environment Bill.  The five principles are set out in cl 16(5).  The consultation on the draft policy statement on environmental principles was launched on 10 March 2021 [4].   The position is that there is consultation on the draft policy on the environmental principles before the environmental principles have been set by Parliament.  The consultation closes on 2 June 2021.  

The Environment Bill also requires drafts of statutory instruments containing regulations setting the long-term environmental targets to be laid before Parliament on or before 31 October 2022.  Given the timings, the work to establish the targets is proceeding in parallel.  The process is being undertaken in accordance with the environmental targets policy paper published in August 2020 [5].

Covid

Whilst the covid-19 pandemic has been the cause of much of the delay to the Bill, it has also become a feature of what is to be addressed by the Environment Bill.  

The August 2020 policy paper on environmental targets stated that the government wants to ensure a green and sustainable recovery following the pandemic.  The government said that the Environment Bill ‘will support the country’s desire to build back better after Covid-19 with measures that support both economic growth and the government’s manifesto commitments to deliver the most ambitious environmental programme of any country on earth’.  

This is reflected in the policy paper which states that the Bill’s targets ‘will help stimulate investments in green technology and innovative practices by providing long term certainty for business’ which ‘will help business to plan ahead, including how they rebuild from the Covid-19 crisis [6].  This cannot be achieved, however, until the Bill is enacted and the targets are published.  It is only at that stage that the certainty will be provided.  
 

Air pollution and biodiversity

One obvious result of the delay to the Environment Bill is the resultant delay in action which will be taken pursuant to the Bill when enacted.  At the same time, the signs that action is needed are intensifying.  

On 20 April 2021, coroner Philip Barlow published his report into the death of Ella Kissi-Debrah [7].   The coroner observed that ‘delay in reducing the levels of atmospheric air pollution is the cause of avoidable deaths’.  One of the matters of concern raised by the coroner was the allowed level of particulate matter.  He said that ‘legally binding targets based on WHO guidelines would reduce the number of deaths from air pollution in the UK’.  Clause 2 of the Environment Bill will lead to regulations setting a target for PM2.5 particulate matter [8]  

The condition of the UK’s biodiversity is also a pressing issue.  The UK biodiversity indicators published in October 2020 show that, out of 24 key biodiversity indicators, 14 are in long-term decline [9].  The government has made clear that the Environment Bill is a means of addressing this issue [10]   

The Prime Minister has spoken with urgency regarding the UK’s biodiversity loss, saying: ‘we must act now – right now. We cannot afford dither and delay because biodiversity loss is happening today, and it is happening at a frightening rate… the consequences will be catastrophic for us all… our action must be immediate’ [11].

Delay to the enactment of the Bill inevitably means delay in action being taken pursuant to the Bill’s provisions. 

Richard Honey QC is a barrister at Francis Taylor Building, and on the editorial board for the ELB.

Alexi Norris is a final-year law student at Queen Mary University of London.