The importance of the environment is apparent from the outset, with the Bill containing the Secretary of State’s statement that the Bill will not have the effect of reducing the level of environmental protection provided for by any existing environmental law. That begs the question, however, of what is actually proposed by the Bill.
Environmental Outcomes Reports
Part 5 of the Bill is titled ‘Environmental Outcomes Reports’ (“EOR”). Clause 116(1) provides that the Secretary of State may specify by regulations outcomes relating to environmental protection that are to be “specified environmental outcomes”. Environmental protection is defined at clause 116(2). In developing those outcomes, the Secretary of State will be required by clause 116(5) to have regard to the current environmental improvement plan which the government, by virtue of the Environment Act 2021, is required to have in place. Clause 117(1) provides that the regulations may provide that an EOR is to be prepared in relation to a proposed relevant consent or a proposed relevant plan. Clause 117(2) and (3) provide that the consent cannot be given, or the plan be brought into effect, unless the report has been prepared. The report has to be taken into account in determining whether, and on what terms, to grant the consent or how the plan is to have effect. Clause 117(4) provides that the report will consider the extent to which the proposed relevant consent or plan would, or is likely to, impact on the delivery of specified outcomes and may propose certain steps, including reasonable alternatives. These are the core requirements of what an EOR should contain.
The Explanatory Notes, which accompany the Bill, says that the effect of clause 117 is to establish ‘an outcomes-based approach to assessment where anticipated environmental effects are measured against specified environmental outcomes’. Clause 119 provides that the regulations may make provisions about how the impact of a relevant consent or plan, or the carrying out of proposals contained with a report, is to be monitored and assessed. The Policy Paper says that the requirement to prepare EORs will improve ‘the process used to assess the potential environmental effects of relevant plans and major projects’. It also argues that the replacement of what it calls the ‘EU-generated systems of Strategic Environmental Assessment (including Sustainability Appraisals) and Environmental Impact Assessment’ by ‘a clearer and simpler process where relevant plans and projects, including NSIPs, are assessed against tangible environmental outcomes set by government, rather than in Brussels’ will ‘ensure there is a clear focus on protecting our environment, pursuing positive environmental improvements and providing clear join-up between strategic and project scale assessments’.
How this will work in practice will ultimately depend on the way in which the regulations are drafted. In addition, it is for the Secretary of State to decide which consents, and which plans, require an EOR, pursuant to clause 118. Further, clause 117(7)(h) allows the Secretary of State to set the extent to which EORs are to be taken into account when making decisions in relation to relevant consents and plans. Although it may appear that the Bill places a lot of power in the hands of the Secretary of State, it is important to remember, as the Explanatory Notes make clear, that the environmental outcomes will only be set following consultation and parliamentary scrutiny. That said, however, the replacement of EIA and SEA with the new system of EORs will allow the government to reflect its own environmental priorities directly in the decision-making process.
Clause 120(1) provides that the Secretary of State can only make those EOR regulations if they are satisfied that making the regulations will not result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law at the time this Act is passed. The Explanatory Notes say that this reflects the government’s commitment to non-regression of environmental protection. Clause 120(2) provides that the regulations may not contain provisions inconsistent with the implementation of our international obligations relating to the assessment of the environmental impact of relevant plans and relevant consents. The government, according to the Explanatory Notes, is committed to ‘maintaining overall existing levels of environmental protection as required by the relevant provisions of the EU-UK Trade and Cooperation Agreement’. That Agreement has already enshrined the non-regression principle. The Bill will not, therefore, weaken or dilute the UK’s obligations under agreements like the Aarhus and Espoo Conventions. It seems, therefore, that whilst the intention is to reform the approach to assessment of environmental impacts, and to remove EIAs and SEAs from the equation, overall, the foundations of the approach to environmental impacts will remain somewhat akin to the current system. It remains to be seen, however, the extent to which well-known environmental principles, such as the precautionary principle, by which we apply our domestic regulations under the current regime, will continue to guide the application of the future system of environmental regulation proposed within this Bill.
There are provisions which will allow exemptions to the requirement for an EOR to be made where the proposed relevant consent relates to national defence or a civil emergency as well as undefined further circumstances. This replicates the position under the current environmental assessment regulations. They also reflect those within the Environment Act 2021. The Bill contains proposals within clause 123 for the EOR regulations to contain enforcement provisions, including civil sanctions such as fixed monetary penalties and stop notices.
Clause 125(1) provides that public consultation must be undertaken before the Secretary of State makes any EOR regulations which contain provisions regarding specified environmental outcomes, or which amend, repeal or revoke existing environmental assessment legislation. Clause 127 provides that the regulations may make provision in relation to the interaction of the Bill with either existing environmental assessment legislation or the Habitats Regulation. Clause 127(3) also provides that EOR regulations may amend, repeal or revoke existing environmental assessment legislation but, interestingly, there is no corresponding clause which provides for a similar power in respect of the habitats regulations. That may because the Environment Act 2021 already contains a foundation for their replacement. Section 112 of that Act provides the Secretary of State with the power to amend the Habitats Regulations.
Amongst the next steps identified by the government in the Policy Paper is a consultation on the new system of EORs. That should allow further detail, which is currently absent, to come forward to help us understand what the practical effects of the proposals contained within this Bill will be. That said, it is clear that the Bill proposes widespread reforms. For example, the replacement of EIAs and SEAs with EORs, with those environmental outcomes being set by ministers. The Bill does, however, build upon the targets set by the Environment Act 2021 so in that light its provisions can be regarded as inevitable, perhaps, rather than radical. That said, for all the government’s references within the Explanatory Notes and the Policy Paper to jettisoning European rules, it remains to be determined how that will play out in practice in light of the non-regression principle firmly enshrined within the Bill.
Mark O'Brien O'Reilly is a second-six pupil barrister at Francis Taylor Building, specialising in public, planning and environmental law.
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