Brief introduction to the OEP

As most readers will be aware, the Office for Environmental Protection (OEP) is an independent public body established under the Environment Act 2021 (Environment Act) to protect and improve the environment by holding government and other public authorities to account. It is part of the new environmental governance arrangements introduced by the Environment Act following the UK’s departure from the EU.

The OEP has functions in relation to England and Northern Ireland (and in relation to UK-wide reserved matters) that can be split into four main activities:

• scrutinising government’s progress against its environmental improvement plans and Environment Act targets;
• scrutinising the implementation of environmental law;
• advising ministers and departments on changes to environmental law and on other matters relating to the natural environment; and
• receiving complaints about public authorities suspected of serious failures to comply with environmental law, conducting investigations into such failures, and commencing court proceedings in relation to those failures.

‘Environmental law’ in this context is defined under s.46 of the Environment Act as any legislative provision to the extent that it is mainly concerned with environmental protection but not concerned with certain excluded matters. [1]

Our strategy and enforcement policy, published in June 2022, sets out how we intend to exercise our functions. We are a small, strategic organisation and will make the best use of our resources, remit and functions to maximise our contribution to environmental protection and improvement of the natural environment. When utilising our enforcement function, it is our intention to aim to resolve non-compliance through co-operation, dialogue and agreement with public authorities wherever possible, so court proceedings will be a last resort.

We have four strategic objectives:

• sustained environmental improvement;
• better law, better implemented;
• improved compliance with environmental law;
• organisational excellence and influence.

The OEP will consider all its available functions for potential action in any particular area, to determine what approach would make the most difference to protecting and improving the environment.

The OEP’s work

Since the OEP was established in November 2021, there has been no shortage of issues requiring its attention. The challenge for the OEP is to identify where it can use its unique role to make the most difference, and then how to achieve the best outcome. 

In the context of the on-going climate change and biodiversity crises, there are increased societal expectations on environmental law and governance and what it should deliver for environmental protection and improvement. This leads to call for changes in policy, which may lead to new environmental legislation; for example, the Environment Act itself and its subordinate legislation, or to reform of existing legislation.

There are also wider political factors that may lead to changes in environmental legislation over the coming months and years, particularly in light of government’s stated ambition to leave the environment in a better condition for future generations. This ambition has been reaffirmed even where there is apparent tension with other policy aims.  An obvious example of this is the Retained EU Law (Revocation and Reform) Bill currently progressing through Parliament.

Retained EU Law Bill

The OEP submitted evidence to the Commons Bill Committee, highlighting many of the same issues picked up by other commentators across a variety of sectors; particularly the short sunset date (subsequently removed during the parliamentary process). Our concerns were focused on a rushed approach to law-making that could put the protection and improvement of the environment at risk. There may be good reasons to review and change many areas of environmental law, but change should be managed well, allowing for appropriate consultation and parliamentary scrutiny.

We made four recommendations in our evidence:

• The sunset date in the Retained EU Law Bill of the end of 2023 is reconsidered and extended. Any timescales for the revocation of retained EU law should be based on a clear implementation plan that sets out how this body of law can be properly reviewed within the timescales.
• An environmental non-regression safeguard is added to the Bill as a minimum measure. In order to meet its stated ambitions, we consider that UK and devolved governments should go further than this minimum to achieve an overall improvement in the level of environmental protection.
• Governments should produce a comprehensive list of the environmental retained EU law (REUL) that falls under the Bill’s scope as soon as possible. Wherever practical, government should in our view provide the evidence for any proposed change or revocation of environmental REUL.
• The UK and devolved governments should clarify, at the earliest opportunity, the process they intend to follow to implement the Retained EU Law Bill and provide clear timelines.

Now that the UK Government has put forward amendments to the Bill to remove the sunset date for all but a specified list of retained EU legislation, some of the concerns highlighted by our recommendations have receded for now.
However, in making it easier for courts to depart from environmental retained case law, the Bill will increase uncertainty around whether long-established precedents will continue to be followed. This could result in costly legal proceedings, as well as delay and disruption for business, and national and local government.

Post-implementation review

In light of current proposals for reform (or revocation) of environmental legislation under the REUL Bill (and, for example, under the Levelling-up and Regeneration Bill that seeks to reform the environmental assessment regime) - it is especially important that government understands how well environmental laws are working in practice before it decides whether, and how, to reform them. And it is currently consistently failing to do so.

This was the finding set out in the OEP’s first report produced under s.29 of the Act (monitoring the implementation of environmental law) which was published on 27 March 2023, and found that Defra had not published post-implementation review (PIR) reports for environmental laws on time (or at all) on at least 40 occasions and that other government departments were similarly failing to meet legislative deadlines for publishing PIR reports. We recommend that government should set out delivery plans for outstanding environmental law PIR reports; that government should undertake PIR (or other similar evaluation) before deciding whether to keep, amend, repeal or replace any environmental law, and that PIRs should take appropriate account of implications for environmental protection and improvement. This might be, for example, through having due regard to the recently adopted environmental principles policy statement.

This could be seen as a somewhat bureaucratic or process driven point; but understanding the effectiveness, or otherwise, of existing environmental law is crucial to its development and to the achievement of ambitions for the environment.

The importance of good environmental decision-making also underpins the OEP’s first intervention in the Supreme Court appeal of Finch v Surrey County Council, which I consider in more detail below.

The OEP’s concerns about government missing statutory deadlines in environmental law goes beyond PIR; an important example being the long-term environmental targets under the Environment Act, which were due to be in place by 31 October 2022 but were delayed until mid-December. The OEP has taken an interest in these missed deadlines because setting dates for actions (or indeed for meeting substantive environmental targets) is key to delivering environmental outcomes; there are many such deadlines across a range of important environmental laws and it is crucial to the delivery of environmental improvement that they are met.

Intervention in Supreme Court appeal

In April 2023, the OEP was granted permission by the Supreme Court to intervene in the appeal of R (Finch) v Surrey County Council. [2]  The purpose of our intervention is to highlight the importance of clarity in the law to promote good environmental decision-making. Our detailed written submissions are available on our website.

As most readers will know, the appeal concerns a judicial review of the grant of planning permission for new oil wells on a site in Surrey. The Supreme Court will consider whether Surrey County Council acted lawfully by not requiring the development’s environmental impact assessment (EIA) to assess the impact of greenhouse gas emissions resulting from the future combustion of oil produced by the new oil wells.

We do not take sides between the parties in the case and have not made submissions on the underlying facts of the appeal. Rather, our submissions highlight our concern that the previous court decisions in this case leave the law on EIA in an uncertain position. This potentially has adverse effects on sound environmental decision making, so risks undermining environmental protection and improvement.

The OEP argues for the Supreme Court to take the opportunity presented by this appeal to clarify the law on assessing the indirect effects of developments in general, and their ‘scope 3’ greenhouse gas emissions in particular. We submit that this can be done by taking a principled approach to the meaning of the term ‘indirect effect’ in the relevant EIA legislation.

It is in this type of high-level, strategic litigation that the OEP is likely to bring the most value in its interventions; seeking to influence the development of the law through increasing clarity, particularly for public authorities, so that it is easier for them to comply with the law and ultimately improve environmental protection. We can also use the outcome of this type of environmental litigation to inform our monitoring environmental law function, which could lead to proposals for changes in environmental law in future.

Enforcement activity

The OEP has enforcement powers to deal with alleged serious failures to comply with environmental law by public authorities.
Where the OEP acts in relation to these powers, it will act strategically. Its enforcement function is different from, for instance, that of an ombudsman as its complaints process is not one of individual dispute resolution. It is not intended that the OEP will investigate every complaint received, or that it will investigate all complaints it assesses as ‘serious’. We have received a total of 84 complaints [3],  in relation to which we have undertaken a number of early interventions [4],  and launched two investigations.

Our first investigation, launched in June 2022, is into the roles of Ofwat, the Environment Agency and the Defra Secretary of State in the regulation of combined sewer overflows in England. [5]  The aim of the investigation is to determine whether these authorities have failed to comply with their respective duties in relation to the regulation, including the monitoring and enforcement, of water companies’ own duties to manage sewage. In doing so, the OEP will seek to clarify the respective duties of these organisations.

The OEP’s second investigation, launched in May 2023, is into the advice given by the Department of Agriculture, Environment and Rural Affairs (DAERA) on ammonia emissions in Northern Ireland. [6]  This investigation will seek to determine whether DAERA has failed to comply with environmental law in its ammonia guidance, commonly known as the ‘Operational Protocol’, given to local planning authorities and applicants seeking planning permission for certain livestock developments.

Conclusion

There are no doubt many upcoming challenges for the development and implementation of environmental law across the UK, but the existence of the OEP, and its scrutiny and enforcement powers, provides a significant opportunity for the delivery of better law that is better implemented for the future. 

Kate Tandy is the Head of Litigation and Casework at the Office for Environmental Protection (OEP), leading on the legal aspects of delivering the OEP’s enforcement function.

This blog post is based on the content of a talk given on 20 April 2023 at the Environmental Law Blog’s 2nd Anniversary Seminar.

[1]  Section 46(2) Excluded matters are: disclosure of or access to information; the armed forces or national security; taxation, spending or the allocation of resources within government. Devolved legislation is also excluded from the definition of environmental law. Schedule 3, paragraph 5 provides a definition which brings Northern Ireland environmental law into the OEP’s scope.
[2]  Appeal of Court of Appeal judgment R (on the application of Finch & Others) v Surrey County Council [2022] EWCA Civ 187.
[3]  As at the end of March 2023 - External complaints report January - March 2023 | Office for Environmental Protection (theoep.org.uk).
[4] Our casework | Office for Environmental Protection (theoep.org.uk).
[5] OEP launches investigation into the regulation of combined sewer overflows (CSOs) | Office for Environmental Protection (theoep.org.uk).
[6] OEP launches investigation into DAERA’s advice on ammonia emissions | Office for Environmental Protection (theoep.org.uk).