This is the first in a series of posts about the new kid on the environmental block: the Environment Act 2021 (“the Act”).
The Act was billed as “the most ambitious environmental programme of any country on earth” – admittedly in the Conservative Party Manifesto in 2019 (see here, p. 5 of the PDF), where understatements are rare. But the Act as a whole was clearly envisaged as a watershed moment for the protection of the environment in the UK.
Whether it achieves that is another matter entirely. In the second reading of the Bill in the House of Commons, it was described by some in much less effusive terms. The Bill was an “okay Bill”, or even “insipid and weak” (see here ,Hansard, Vol 672, Cols. 348 (Luke Pollard MP) and 355 (Deirdre Brock MP)).
This post, and subsequent posts in this series, explore the principal features of the Act.
Background to the Act
Why did the Government promote the Environmental Bill? In part, because it had to. The European Union (Withdrawal) Act 2018, section 16, required the Secretary of State (“SoS”) to publish draft legislation that set out a list of environmental principles within six months of Royal Assent. The Act is therefore in part a response to a potential vacuum created by Brexit (or, depending on how you see it, a seizing of the opportunity created by Brexit to provide for higher standards of protection than in the EU). As much of the environmental law in the UK is derived from EU legislation, the Act seeks to enshrine domestic environmental principles to avoid “backsliding”. For an overview of how such EU law is retained post-Brexit, see on this blog here by Richard Honey QC.
The Act has been long in the making. It was initially tabled for the 2019-2021 Parliamentary sessions, but carried over due to the COVID-19 Pandemic (See Explanatory Notes, paragraph 3). Its Brexit-born predecessor, the Draft Environment (Principles and Governance) Bill, dates from even earlier in 2018.
The final Act goes well beyond an attempt simply to preserve the status quo post Brexit. It spans over 250 pages (including Schedules), and regulates matters as high-level as long-term air quality plans to the nitty-gritty of powers to regulate chemicals and to introduce charges for single use plastic items.
Structure of the Act
There are two themes to the Act (Explanatory Notes, paragraph 1). The first ‘theme’ is a legal structure for environmental governance. That is, a structure to enforce a range of environmental matters such as, for example, air quality (Part 1, Chapter 1), and the creation of a new environmental watchdog, the Office for Environmental Protection (Part 1, Chapter 2). The second ‘theme’ seeks to make specific environmental improvements in various areas such as resource efficiency (Part 3) and Water Quality (Part 5).
Key features of the Act include:
- Setting domestic targets for various environmental metrics;
- The creation of the Office for Environmental Protection;
- Recall of products which do not comply with relevant environmental standards;
- Mandatory biodiversity net gain requirements in planning permission covered on this Blog here and here;
- Binding agreements to conserve the environment (Conservation covenant agreements) covered on this Blog here and here;
- Powers to allow for charges for single use items and ‘deposit schemes’ (which incentivise recycling);
- Powers to require manufacturers to indicate the resource efficiency of their products; and
- Increased protection to trees, giving the Forestry Commission extra powers and requiring mandatory local consultation prior to felling.
This post explores in greater detail one aspect of the first theme: the targets set by the Act to improve particular environmental issues.
Part 1 of the Act is all about targets. Three aspects should be commented on (i) the long term targets, (ii) the other targets and (iii) the environmental improvement plans.
I start with the long-term targets, these are targets that must be achieved within 15 years or more. Section 1 requires the SoS to set down long-term targets in respect of priority areas, which are air quality, water, biodiversity, resource efficiency and waste reduction, and confers a general power to make any long-term targets in relation to the natural environment or people’s enjoyment of the natural environment.
There are two particular other targets. Certain kinds of particulate matter, one of the leading causes of air quality pollution, are the subject of a bespoke target – that is not necessarily long-term one (see s. 2(2)). Likewise, the species abundance target must be met by 31 December 2030 (s. 3(2)). Both of these targets are separate and in addition to the long-term targets described above.
The SoS must lay the above targets (both long term and other) before Parliament by 31 October 2022 (s. 4(9)).
Previous posts on this blog have commented on how “targets” can be, in reality, ambitions. That is arguably the case for the target of keeping temperatures within 1.5 degree of pre-industrial levels under the Paris Convention. The duty is not to limit the temperature to such an increase, but to pursue efforts to do so (see here). The Act, in contrast, imposes a specific duty on the SoS to ensure that the targets under ss 1 – 3 are met (s. 5). This is not unlike the UK’s climate change legislation, which imposes a specific duty on the SoS to comply with carbon reduction targets (s. 1(1) Climate Change Act 2008). This ensures that the targets – at least in law – have ‘teeth’.
The Act also provides for periodic reviews of the targets, requiring the SoS to set out whether they consider significant improvements have been made (and if not, what steps will be taken) (s. 7). However, it should be noted that the SoS does have the power to amend the targets: s. 4.
There is also a more general duty to promulgate an environmental improvement plan to significantly improve the natural environment (s. 8). These are to last less than 15 years. They are subject to annual reports laid before Parliament (s. 9), and must provide an interim target in respect of the matters subject to long term targets (i.e. air quality, water, biodiversity, resource efficiency and waste reduction) (s. 14). They can be reviewed in line with whether those interim targets are met (s. 11). Unlike the targets above, there is no express statutory duty on the SoS to ensure that the targets in the environmental improvement plan are met (a House of Lords amendment seeking to ensure this, was not accepted by the Commons and was withdrawn during ‘ping pong’).
As a final point, Part 1 also “greens” law and policy making in the following two ways. In other words, the Act infuses the making of law and policy with environmental considerations.
First, it requires the SoS to publish a policy statement explaining how the environmental principles should be interpreted and proportionately applied by Ministers of the Crown when making policy (s. 17).
Second, it also requires all environmental Bills introduced to Parliament to contain a statement from the relevant Minister that it does not erode existing environmental protection (s. 20). There are some analogies to the duty under the Human Rights Act 1998 for a Minister to confirm that the Bill is compatible with the European Convention on Human Rights (although the requirement in s. 20 applies only to environmental Bills).
Regardless of one’s overall views of the Act, it does introduce some novel elements into the UK’s environmental landscape. These include a phalanx of targets, backed up with specific duties on the SoS to ensure that those targets are met. They also include an overall ‘greening’ of policy-making and law-making, arguably representing a focussing of environmental protection (and prevention of environmental backsliding) in these fields.
Subsequent posts will explore yet further elements introduced in the Act.
Michael Rhimes is a barrister at Francis Taylor Building specialising in environmental, public and planning law.
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