The Environment Bill, first published in draft in 2018, subject to interminable delays and carried over from one Parliamentary session to another, finally completed its passage through Parliament on 9th November 2021, still mired in controversy over whether it addresses with adequate clarity the pressing need for effective enforcement of environmental laws. The Act is of high importance, as it represents the national framework, for England, to replace the system to back up enforcement of EU environmental laws which ,while the UK was in the EU, was undertaken by the European Commission and the Court of Justice of the European Union.
If environmental law is to be judged by its results, there is reason to be concerned that, at least in England, the results are not good enough. For example, a recent report by Air and Space Evidence showed that 63% of waste collection bodies in England were operating outside of the system of statutory registration altogether, and therefore illegally. In England, 0% compliance of rivers comply with chemical standards which were set 20 years ago in the EU Water Framework Directive. Of those rivers in England 84% show non-compliance with ecological standards. This is partly due to factors such as ineffective control of pesticides and fertilisers from farm runoff, but also to the now celebrated extent of the dumping of untreated sewage in rivers and coastal waters, often completely illegally.
It has been left to the Duke of Wellington in the House of Lords, and former lead singer with the Undertones Feargal Sharkey to point out that leaving rivers in this state, and allowing uncontrolled discharges of untreated sewage, is neither normal nor even legal. The Chair of the House of Commons Environmental Audit Committee Philip Dunne MP has himself accepted that existing legislation is not enforced – but why not, why is that acceptable, is it connected to the halving of the enforcement budget of the Environment Agency, and how will the Environment Act 2021 deliver better results?
Ruth Chambers of Green Alliance has pointed to a number of welcome features of the new Act, and improvements resulting from relentless campaigning. These include improved powers for the Office for Environmental Protection (OEP) in terms of enabling it to initiate its own investigations and to take in public authorities as well as government departments. There is a new 2030 target to halt species decline, a target to tackle air pollution from PM2.5 particulate matter, and a legal targets framework. Biodiversity net gain will be required from nationally significant infrastructure projects, and there are welcome provisions controlling imports of products from global deforestation.
But as Ruth Chambers has also pointed out, “the most glaring omission is provision to strengthen the independence of the OEP”. In March 2020 I reported on the Environment Bill that–
“Part 1 of the Environment Bill on Environmental Governance is by some way the most important part of this major legislation. It is also, as currently drafted, the most disappointing. An EU framework that underpinned a high level of protection of the environment with Treaty provisions and in terms of Regulations and Directives with mandatory results, enforced by the European Commission and Court of Justice, is to be replaced by a mish-mash of discretionary targets, to be selected by the Secretary of State.
As noted on the earlier version of the Bill, the Secretary of State would set the Policy applying Environment Principles (which are still, as drafted, subject to arbitrary and unjustified exceptions for the armed forces, and from any application to taxation and spending). The Secretary of State would control the appointment, and funding, of the Office for Environmental Protection charged with policing environmental laws. And if standards such as chemical standards for water proved hard to meet, the Secretary of State could lower or remove the standards. All of this was the subject of detailed and critical comment by the EFRA and EAC Committees of the House of Commons in separate reports in 2019, and almost nothing has been done to respond to those Committees’ criticisms in the Bill as reintroduced.”
As written, therefore, environmental principles, policies, targets, appointments, enforcement, will all depend, to a greater or lesser extent, on the discretionary control of the Secretary of State. This is why environmental groups, farmers, reports of two leading House of Commons committees, large majorities in the House of Lords, academics and many environmental law practitioners have preferred a wider independence for the Office for Environmental Protection and more fixed points of reference for environmental targets and principles in legislation to wholesale reliance on the discretion of this or any other Secretary of State. Who is going to have full confidence in the maintenance of environmental standards in, say, future negotiations on trade deals?
It is also significant that in enacting this legislation in this form, the UK government for England – as the environment is a devolved responsibility in other parts of the UK – has set lower standards than Scotland in particular. Scotland has just set up Environmental Standards Scotland with greater functional independence and higher aims and less qualified application of environmental principles. Wales has yet to complete its legislative journey, but already has in place the Well-being of Future Generations (Wales) Act 2015 and the Environment (Wales) Act 2016 and a large measure of statutory support for the application of sustainable development principles to all public bodies. The long term significance of this kind of legislative divergence has yet to be worked through, and it adds to the significant tensions between different parts of the UK when the UK government seeks to apply common standards through the mechanism of the United Kingdom Internal Market Act 2020.
The passage of the Environment Act 2021 is a significant landmark. There is much to welcome in a large piece of environmental legislation, but it is by no means the full answer to the significant problems in the effective enforcement of environmental laws in England. The government stubbornly refused to accept several hundred improving amendments during the long passage of the Bill. It will take active public participation and demands for higher standards on air quality, sewage pollution, waste, pesticides to achieve better outcomes, and the first opportunity to apply public pressure will be the government’s public consultation on targets in February 2022.