Governance and environmental principles
1 New legal clout for the green watchdog
The Office for Environmental Protection (OEP), the government’s proposed oversight and enforcement body, will have recourse to a new kind of legal mechanism, called an ‘environmental review’, that can compel public authorities to take action if a court finds they have breached environmental law. Its role will be to examine new green policies, investigate complaints and take enforcement action against public authorities for breaching environmental law.
2 Environmental issues will have new legally binding targets
The bill sets out a requirement for legally-binding targets on air, water quality, biodiversity, and waste efficiency, along with a specific target on fine particulate matter (PM2.5). The move represents a win for DEFRA ministers, who have on several occasions warned that other government departments, particularly the Treasury under former chancellor Phillip Hammond, were opposed to the idea.
3 Green watchdog to take on climate change scrutiny
The OEP will also be responsible for taking action against the government if it fails to meet its legally-binding climate change targets, a demand that campaigners and legal experts have long been making. The bill requires the OEP to make sure its role does not overlap with the oversight function played by the Committee on Climate Change, the government’s independent climate advisory body.
4 List of environmental principles is trimmed
The government has cut the number of environmental principles that ministers must consider when making policy decisions to five, following criticism from legal commentators that draft clauses relating to the Aarhus Convention on access to information, public participation and access to justice were better classed as rights than principles. The bill now requires ministers to “have due regard” to the principles, rather than simply “have regard” to them, in what could be seen as a concession to green groups, which had wanted ministers to “act in accordance with” the principles.
5 Loopholes in scope of principles remain
Much criticised exemptions for the Ministry of Defence, along with any government decisions on tax and spending, remain in place when it comes to having regard to the environmental principles. Legal experts have previously voiced concern over the exemptions, noting that they are not matched in EU law.
6 The bill does not commit to environmental non-regression
Green umbrella group Greener UK has expressed concern that the bill does not commit the secretary of state to uphold existing environmental standards. The bill does, however, state that the environment secretary “must be satisfied” that the policy statement on principles “contribute to the improvement of environmental protection”.
7 New PM2.5 target is absent
The World Health Organization’s target for fine particulate matter (PM2.5) has not been included in the bill. A goal to attain it by 2030 had been expected. An undefined target for the pollutant would instead be adopted through regulations at a later date.
8 Solid fuel ban is missing
The bill would ban make the acquisition and sale of solid fuel for use in a smoke control area an offence. A more powerful ban on the sale of coal and wet wood for domestic heating was promised in January.
9 Major contributors to air pollution could be ordered to curb emissions
Local authorities will be able to invite industrial emitters of air pollutants, where they contribute to a failure to attain an air quality objective, to propose action to reduce emissions. If the response is insufficient, the government may direct further proposals to be tabled.
10 New ‘Dieselgate’ scandal would lead to recall
Any repeat of the Volkswagen’s Dieselgate scandal could be answered by forcing manufacturers and retailers to recall offending vehicles or machinery, fix or destroy them and compensate owners. The “enforcement authority” – presumably the Driver and Vehicle Standards Agency – would be given new powers to investigate potential offences.
11 Fixed penalties for dark smoke
Councils would be able to impose fixed penalty notices of up to £300 for the emission of dark smoke in a smoke control area, a violation of the Clean Air Act 1993.
Nature and Biodiversity
12 The principle of biodiversity gain will be given a statutory footing
If enacted, the bill enshrines the principle of “biodiversity gain” or biodiversity net gain into law, which would require a developer to offset and improve the value of natural habitat that is damaged or destroyed as a result of development.
13 Biodiversity net gain applies to all development in England
Biodiversity net gain would apply to all developments in England requiring an environmental impact assessment under the Town and Country Planning Act 1990.
14 10% net gain and a biodiversity gain plan
The bill would require developers to submit a “biodiversity gain plan” that would be able to achieve a 10% uplift in the quality of the natural habitat damaged or destroyed as a result of development. The plan would need to include details such as the pre-development biodiversity value of the site and the steps the developer has taken to avoid any adverse effects from development.
15 30 years worth of biodiversity enhancement required
Any proposed mitigation and compensation measures a developer has proposed, on or offsite, must be maintained for at least 30 years.
16 Details of biodiversity offsetting sites
If a developer is unable to provide a 10% biodiversity gain in habitat creation it must provide details of any registered land that will be used to provide an offset, including the biodiversity value of any gains in relation to the development. This will apply to any enhancement carried out under a conservation covenant, planning obligation or recorded in a biodiversity gains site register.
17 Statutory biodiversity credits
If a developer is unable to provide a biodiversity net gain of 10%, it will be able to purchase credits from the secretary of state, who will publish the amount paid for those credits.
18 Biodiversity net gain will not apply to all development in England
National infrastructure projects covered by the Planning Act 2008, protected sites or irreplaceable habitats, some small developments not requiring an environmental impact assessment, or those on brownfield land, will be exempt from the net gain policy.
19 Conservation covenants
The bill has introduced conservation covenants, legally-binding agreements to do or not do something on land with a conservation purpose or public good lasting for at least seven years. This is something experts have argued is necessary in implementing net gain in practice.
20 Local nature recovery strategies for England
Extra duties would be placed on local authorities to create a “local nature recovery strategy”, which would include the council’s biodiversity priorities to support the government’s ambitions to create a Nature Recovery Network, in line with the 25-Year Environment Plan. It would also need to create a “biodiversity report”, summarising what action it has taken over five years to enhance biodiversity.
21 NERC Act 2006 strengthened
All public bodies must now have regard to the conservation and the enhancement of biodiversity, under amendments to section 40 of the Natural Environment Rural Communities Act 2006
22 Future water goals could remain unclear
DEFRA says the bill “reforms elements of abstraction licensing to link it more tightly to our 25-Year Environment Plan goal of restoring water bodies to as close to natural state as possible”. But neither the plan nor the bill define what constitutes “natural state”, nor what “as close as possible” means.
23 The EA would be able to revoke some abstraction licences without being liable for compensation
The bill enables the Environment Agency to vary or revoke an abstraction licence without paying the licence holder compensation in cases where the licences “cause, or risk causing, considerable environmental damage”, or if they “consistently abstract less water than their licensed volume”.
24 But the powers would not be in place for many years
The EA would not be given the abstraction licence revocation powers until 1 January 2028. DEFRA has said previously that this is to give time for the catchment based approach to bed in and for abstraction licensing to be moved into the environmental permitting regime.
25 The environment secretary would be able to change lists of pollutants and their limits
It would also create a power allowing the secretary of state to update the list of substances which potentially damage rivers and groundwater, alongside a power to update the standards and limits associated with the substances. DEFRA says this will ensure “regulations protecting water quality are keeping pace with scientific and technical knowledge”.
26 Ofwat would be given greater powers to intervene in the water sector
It would also strengthen Ofwat’s powers to modify companies’ licences to operate in a bid to ensure their supply, wastewater and drainage networks are resilient in the face of droughts and floods.
27 The water sector’s supply resilience plans would be set in law
Water resource management plans would be underpinned by statute for the first time.
28 Water companies would be expected to create drainage and sewerage plans
The bill would require sewerage undertakers to prepare Drainage and Sewerage Management Plans and promotes the creation of new internal drainage boards, funded by local communities.
29 Water efficiency commitments did not appear in the bill
NGOs have expressed disappointments that the bill did not include any water efficiency commitments despite a pledge in the 25-year plan to reduce water use.
30 The majority of the UK’s water bodies do not meet Water Framework Directive standards
Currently just 14% of the UK’s waters have achieved good ecological status. All water bodies were supposed to have achieved the standard back in 2015. The country will not meet the new 2021 target.
Waste and resources
31 Charges for other single-use plastics
The bill allows for the making of regulations about charges for single-use plastic items. The charges, similar to the carrier bag charge, are intended to incentivise a shift towards more reusable items
32 Powers to introduce a deposit return scheme
Clause 49 and Schedule 9 of the bill enable the relevant national authority to make regulations establishing deposit schemes. The bill defines a deposit scheme as one under which "a person supplied with a deposit item by a scheme supplier... by way of sale or in connection with the supply of goods or services pays the supplier an amount... and a person who gives a deposit item to a scheme collector... is entitled to be paid a refund in respect of that item."
33 New resource efficiency requirements
The bill would give the relevant national authority the power to make regulations that set requirements for manufacturers and producers to provide information about the resource efficiency of their products. The purpose of the power is to enable the regulation of products that have a significant impact on natural resources at any stage of their lifecycle
34 Powers to make producers responsible for 100% of the packaging waste they create
Clause 46 of the bill introduces Schedule 6, which allows the relevant national authority to make regulations that require those involved in manufacturing, processing, distributing or supplying products or materials to meet, or contribute to, the disposal costs of those products
35 New electronic waste tracking powers
The bill introduces a power to make regulations in order to track certain types of waste, including establishing an electronic waste tracking system. Examples of the information that the regulations can require people to enter onto the electronic system include how waste is processed or treated, where waste has moved to and to whom waste has transferred. Criminal offences will be created, punishable with a fine in order to enforce the regulations and any failures to comply with the regulations
36 Consistency on waste collections
The Environment Bill stipulates a consistent set of materials that must be collected from all households and businesses, including food waste. This will help make services more consistent across the country, the government says.
37 REACH Enforcement Regulations to be beefed up
New offences would be created under the REACH Enforcement Regulations 2008, presumably responding to holes in the REACH regime that would be created by a no-deal Brexit.
38 REACH objectives to be protected
The major aims and objectives of REACH would be protected from revision. These include the principle of ‘no data, no market’, minimising animal testing, appeals against regulatory decisions and transparency provisions.