In March 2022, DEFRA published a consultation paper entitled the Nature Recovery Green Paper: Protected Sites and Species (“the Green Paper”). The aim of the Green Paper is to propose and consult on reforms that are needed to meet the species target that will be introduced under the Environment Act 2021 and the government’s commitment to protect 30% of land and sea by 2030 (30 by 30). Consultation on the paper opened on 16 March 2022 and closes on 11 May 2022. This post summarises the Green Paper’s main recommendations before commenting on what those recommendations might mean for environmental regulation in England in the future. The main policy areas discussed by the Green Paper are devolved, so the focus of the Green Paper and this blog post is on England. 

Summary
The first substantive section (Section 3) is entitled ‘Protecting Wildlife Sites- On Land and at Sea’. The Green Paper notes that the current array of protected site designations is overly complex, as ‘it has developed in an ad hoc way over decades, stemming from both domestic and EU legislation.’ [1]  The Green Paper therefore recommends consolidating the protected sites into a simpler legal structure to ‘deliver better environmental outcomes which are based on the best available science and evidence’. [2]   According to the Green Paper, other potential benefits would include greater consistency and making environmental regulation easier to understand and engage with for the general public. 

The Green Paper offers three options for this new consolidated approach. Option 1 is a tiered approach emulating the approach taken in the marine area for Highly Protected Marine Areas and Marine Protected Areas. ‘Highly protected’ status would provide greater protection than current protection for SACs and SPAs but would be applied to a limited number of sites; ‘protected’ sites would be managed in the same way as SSSIs, SACs and SPAs are now and would make up the bulk of the designations. Option 2 would be a lighter touch reform, with ‘highly protected’ sites being managed and protected in a similar way to SACs and SPAs and ‘protected’ sites being managed in a similar way to SSSIs. The final option is for there to be one single type of protected site designation, with a range and scale of protections for the specific site features and ecosystems being tailored to the circumstances within the specific site. 

For marine sites, the Green Paper states that the marine protected areas network is ‘ecologically coherent’, so although there could be a move to a single designation type this is not as urgent as for terrestrial sites. [3]   Apart from these protective measures, the Green Paper also comments that there is potential for Site Improvement Plans (SIPs) to be used so that there is a focus on nature recovery and not just preventing deterioration within protected sites. 

Alongside the proposals for changing protective designations, the Green Paper also discusses the potential for separate ‘nature recovery sites’. The Government proposes to implement a Nature Recovery Network with ‘willing landowners’ using a range of public and private financial incentives (such as the Landscape Recovery and Local Nature Recovery Schemes, Biodiversity Net Gain and the Nature for Climate Fund). [4]   The Green Paper also raises the possibility that there could be a new type of site designation for nature recovery. The Green Paper does not explain in detail how nature recovery sites would be identified, noting simply that Local Nature Recovery Strategies (as introduced by the Environment Act, and subject to a recent consultation) could be used to identify local sites. Planning authorities would then be under a duty to ‘have regard’ to any areas identified by Local Nature Recovery Strategies, with the Government providing guidance in the future as to what this means in practice. The Green Paper also invites consultation responses on the question of whether the concept of nature recovery sites could inform the approach at sea. 

Section 3 of the Green Paper also emphasises the importance of scientific judgment, given that at the moment ‘Whether or not a certain activity should be altered or restricted is guided as much by concerns about possible future legal challenge over decision making, as it is by the actual impact of the activity.’  [5]  The Government’s aim is therefore to change fundamentally the way that assessments under the Habitats Regulations are undertaken, with an emphasis on individual judgment on a case by case basis. The aim is to avoid an ‘obsession with uniformity of procedure’ which is the ‘scourge of modern government’. [6]   Section 3 also includes a commitment to reforming both the Environmental Impact Assessment and the Strategic Environmental processes via primary legislation. Apart from noting that the new regime would ensure the relevance of environmental protections, close monitoring and a focus on delivering outcomes, the Green Paper offers no detail as to what this new legislative framework might look like. 

Section 4 of the Green Paper is entitled ‘Delivering 30 by 30’, and it sets out what should be considered as protected for 30 by 30 purposes along with proposals for making space for nature’s recovery across the country, not just in the 30%. The Green Paper sets out three criteria for any area to contribute to 30 by 30: having a clear purpose of conserving biodiversity (alongside other possible purposes), having long-term protection and/or management in place to work against adverse pressures or results in improved outcomes for biodiversity, and delivering appropriate biodiversity outcomes that will be monitored. The Government sees the proposed Nature Recovery Network as being crucial to the delivery of 30 by 30, and although National Parks and Areas of Outstanding Natural Beauty do not currently contribute, the expectation is that with appropriate reforms they will. The Green Paper notes that sites meeting the relevant criteria for Other Effective Area-Based Conservation Measures as set internationally by the Convention for Biological Diversity could also contribute to the 30 by 30 target. 

Section 5 of the Green Paper (‘Protecting Species’) begins by saying that previous protection in the UK has been influenced by EU Directives without being tailored to British biodiversity. The proposed reforms focus on consolidation and rationalisation of the current overlapping legislation, with the tiers of protection ‘being underpinned by a consistent, evidence-based set of criteria’. [7]  Tier 1 ‘Minimum Management Standards’ would include a close season and prohibitions on specific methods of killing animals. Tier 2 ‘Protected’ would be for species in need of strict controls similar to what is currently in the Wildlife and Countryside Act 1981. These measures would include prohibitions on capturing, killing, trading or negatively disturbing any of the protected species. Tier 3 ‘Highly Protected’ would include all of the measures in Tier 2, as well as measures to prevent loss of habitat for species where the protection of habitat is necessary to secure effective conservation. 

Section 6 (‘Delivering Nature Recovery’) begins by noting that changes will likely be needed to the bodies that are responsible for supporting environmental regulation, although DEFRA’s Arm’s Length Bodies will maintain an essential part of the regulatory framework. The Green Paper also lists possible initial options for allowing public bodies to be able to recover the costs of regulation. The Green Paper concludes with a section on ‘Financing Nature Recovery’, which sets out the Government’s support for the development of new and existing codes ‘to enable buyers, sellers and investors to leverage private finance into natural capital projects that deliver returns on investment and accelerate action to create, restore and manage wildlife-rich habitats.’  [8]  The UK Peatland and Woodland Carbon Codes are cited as two successful examples of voluntary mechanisms that attract private finance. 

The Future of Environmental Regulation
The Green Paper is a consultation document for which consultation has not yet closed. The recommendations contained within it are at an early stage of development and may change significantly by the time that any legislation is enacted. Nonetheless, it is possible to draw out a number of significant points for what environmental regulation in England might look like in the future. 

First, there is a proposed move away from a focus on protection and preservation towards a system that also encourages recovery: ‘While there will always be a role for more defensive, site-specific protections, the Government believes that in order to see a genuine national recovery in species abundance, the old approach will not be sufficient.’  [9]  As part of this emphasis on recovery, the Government also calls for a more strategic approach to mitigation: ‘To provide the flexibility necessary to respond to climate change, the ecological connectivity and coherence of protected sites must be better supported by strategic approaches when options to avoid impacts are not possible, including through increased use of mitigation and compensation’. [10]  The aim is therefore to use mitigation as a tool across the habitats network to support wildlife recovery. The Green Paper wants flexibility to be the cornerstone of environmental regulation in the future, with current protection offered by the Habitats Regulations being seen as too focused on ‘process’ as opposed to ‘outcomes’. Of course, there is a risk that this emphasis on flexibility might come at the cost of certainty and protection. 

Second, the proposals for nature recovery involve a relatively ‘hands-off’ approach, with the Green Paper emphasising that prescriptive management can hinder natural processes by which nature can re-establish itself. The consolidated approach to designated sites would ‘better enable nature’s recovery through a less prescriptive system’ [11], a nature recovery site ‘could therefore be less prescriptive in management measures, whilst still encouraging recovery actions, to enable a more holistic approach’  [12], and there is a warning that designating certain sites ‘would require them to be managed in ways which limit or inhibit the opportunity for other species and habitats to flourish.’  [13]  The Green Paper draws support for this approach from the example of rewilding: ‘In recent years alternative ‘rewilding’ approaches to biodiversity conservation and nature recovery have been developed on land. We’ve seen huge successes in projects like Knepp, where restoring dynamic natural processes saw nature return within a decade.’ [14]  While the Government is seeking to make nature recovery as important as protection in its approach to environmental regulation, it is unclear at the moment how the Government proposes to implement recovery measures beyond potentially designating certain sites as nature recovery sites and then leaving them alone. More detail might be forthcoming in Local Nature Recovery Strategies, and the early signs are that these local strategies will have to do much of the heavy lifting to fulfil the Government’s recovery agenda outside of protected sites. The Government’s response to a recent consultation on Local Nature Recovery Strategies is awaited.

Finally (and unsurprisingly), there is a clear desire to move away from an EU system of environmental regulation. The Habitats Directive had ‘good intentions’ but has led to legal uncertainty [15], leaving the EU, ‘provides us with the opportunity to create a more streamlined and effective approach to environmental assessment to better support nature recovery’ [16], and ‘In some cases, EU legislation was so prescriptive that it left very little room for national governments to make decisions appropriate for local conditions.’ [17]  The Government’s hope is that freedom to legislate post-Brexit will lead to a system of environmental regulation that is simpler, more effective, and better tailored to English   circumstances and objectives. It is too early to see if this optimistic vision will become reality, but the Government’s proposals at the moment represent a significant and conscious shift away from the current system of environmental regulation.

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