The Environment Bill is currently before the House of Commons, but the proceedings at Committee stage were suspended until further notice on 19th March 2020 due to the pressing demands of dealing with the coronavirus pandemic. The Bill is now due back for Report stage in June 2020. However, what is already clear is that the Environment Bill for England will constitute a significant dilution of air quality standards.

Generally weaker governance provisions in the Environment Bill

Ultimately, while the UK was a member of the European Union, enforcement of EU law was undertaken by the European Commission and the Court of Justice of the European Union. Despite the fact that EU standards and limit values for air pollutants do not match or measure up to World Health Organisation ‘WHO’ guidelines in all areas, EU limit values set by the EU Ambient Air Quality Directive and its Daughter Directives, which address specific air pollutants were, in the words of UK government guidance –

”legally binding EU parameters that must not be exceeded. Limit values are set for individual pollutants and are made up of a concentration value, an averaging time over which it is to be measured, the number of exceedances allowed per year, if any, and a date by which it must be achieved. ”

It is this mandatory nature of EU limit values, for Nitrogen Dioxide, that enabled ClientEarth to bring a celebrated series of successful cases against the UK government in both the national UK courts and the Court of Justice of the European Union. The Environment Bill will establish an Office for Environmental Protection for England, but contrary to the clear recommendations of two separate House of Commons Committees in 2019, it will be funded and appointed by the Secretary of State, so there are real questions about its operational independence, despite its job being to hold the government to account for breaches of environmental laws.

The Environment Bill lacks an overall aim or duty on Ministers and public bodies, where for example, Article 191 of the Treaty for European Union committed states in law to a high level of protection of the environment.

Under the Environment Bill, environmental principles are applied and filtered through a Policy Statement drawn up by (once again) the Secretary of State, not applied consistently and without exception to the operations of Ministers and public bodies.

Unjustified and arbitrary exceptions to the applications of these principles have been included, which would exempt the whole of the armed forces and any question of taxation and spending from the application of environmental principles, which runs directly counter to all recent environmental legislation removing Crown immunity, to current Armed services manuals and practice, and to the government’s commitment to a Green Recovery.

The Environment Bill also re-defines and narrows the scope and application of the terms “environment” and “environmental laws”. The Bill’s definition of “natural environment” (Cl. 41) is narrow, and excludes, for example, the urban environment, where most of us live; and indoor air quality, which most of us breathe, most of the time. It is very unclear why the definition of “the environment” which has been in place for 30 years since enacted in section 1(2) Environmental Protection Act 1990 (and copied into the Environment Act 1995) needs to be changed: this read -

“(2) The “environment” consists of all, or any, of the following media, namely, the air, water and land; and the medium of air includes the air within buildings and the air within other natural or man-made structures above or below ground”;

The Bill’s definition of “environmental law” (Cl. 43) is restrictive and should apply to all legislation that relates to the environment (as defined in the Environmental Protection Act 1990): the exclusions are unjustified.

Most of these points were made in two reports on the consultation stage of the Bill’s provisions published in April 2019 by the House of Commons Environment, Food & Rural Affairs Committee and Environmental Audit Committee, but most of the criticisms in those reports have been ignored when the Bill was re-introduced.

Specific dilution of air quality protections in the Environment Bill

In addition to the general, but serious, concerns about the governance provisions of the Environment Bill, there are also several specific concerns about its application to air quality.

As we have seen, mandatory emission limit values, backed by a system of enforcement, are not in any event the same as ‘targets’. European Regulations which gave effect to mandatory emission limit values will, for the time being be carried over into UK regulations, by virtue of the European Union (Withdrawal) Act 2018, but will be different in being contained in UK secondary legislation which can be changed by the Secretary of State and no longer underpinned by EU enforcement. Meanwhile the Environment Bill (Cl. 1(2)) provides for the Secretary of State to set a target “in respect of at least one matter within each priority area” (priority areas being air quality, water, biodiversity and resource efficiency and waste reduction) – but who is to say if the Secretary of State has selected the right target for, say, air quality? In the Committee stage hearings on the Environment Bill, Dr Alan Whitehead for Labour commented that –

“That might suggest that the Secretary of State will have a lottery choice, and will say, “Well I’ve got to set at least one target in each area, so what is it going to be?”

Labour proposed amendments which would have put forward targets for particulate matter, including PM2.5, PM10, annual emissions of nitrogen oxides, ammonia, non-methane volatile organic compounds: but they were voted down by the Conservative majority on the Committee on 17th March 2020. The same day the same majority voted down amendments which would have included a target of meeting WHO guidelines for PM2.5 particulates by 2030.

These votes, and the UK government’s approach to the Environment Bill, do not inspire confidence. Despite its protestations, and perhaps because of its experience of being taken to Court on a regular basis, the UK government seems determined to phrase its air quality obligations for England in ways which will make it harder to see them effectively enforced. That only makes it more likely that there will be further divergence from less restrictive governance provisions emerging in Scotland and Wales.

Those interested in responding to the environmental lessons of the COVID-19 pandemic by “building back cleaner air” should be willing to take stock of the governance provisions of the Environment Bill, accept that the workings of government are not threatened by environmental ambition, and be prepared to “build back better legislation”.