‘Concerning’ Brexit regulations allow change to environmental compliance tests

Regulations approved by the Commons on Tuesday could allow the government to change how compliance with a raft of EU environmental legislation is judged, observers fear.

The Environment (Legislative Functions from Directives) (EU Exit) Regulations 2019 were approved without debate by 280 votes to 204, just before the Environment Bill was introduced. It was the first vote that Boris Johnson’s administration has won.

The statutory instrument’s stated aim is to give to give ministers powers currently wielded by the European Commission.

It facilitates changes to the monitoring and assessment provisions of directives on Ambient Air Quality, Groundwater, Drinking Water and many others. Some powers come with safeguards, such as references to adapting to scientific and technical progress and consulting relevant bodies. But for others, notably Urban Waste Water Treatment, the government has a freer hand.

Naturalist Miles King, chief executive of environmental group People Need Nature, agreed that the timing of the vote “looks suspicious”, with the environmental community now being distracted by the bill.

The bill hands the “appropriate authority” (meaning the secretary of state and/or devolved administrations) a power to amend “non-essential elements” of the Ambient Air Quality Directive, defined as other than its headline targets, limit values, long-term objectives and critical levels and dates for attainment. But its highly technical annexes, which specify exactly how compliance should be considered, could be rewritten.

“It is not easy to foresee how such requirements would need to be updated in light of advances in scientific evidence or understanding. They do not set out quantitative or technical specifications,” said a joint submission on the draft regulations made by Greener UK and Wildlife and Countryside Link. The paper described the regulations as “concerning”.

In a statement, DEFRA insisted that the powers granted to the government “accurately reflect” those available to the commission “and the procedural requirements that the Commission needs to follow”. It added that parliament, its select committees and the incoming Office for Environmental Protection will provide oversight of laws issues under the regulations.

But Brendan Moore, coordinator of the Brexit & Environment network of academics, observed that the low-profile negative resolution process under which further regulations would be made under the law offered “more latitude” to undermine - or potentially strengthen - environmental policy.

For the Industrial Emissions Directive, provisions concerning emissions monitoring, assessment of compliance with limit values, and technical rules for waste incineration and solvent activities could all be modified. The definition of start-up and shut-down periods could also be changed.

Similar provisions also apply to monitoring requirements for the Medium Combustion Plant Directive.

The penultimate section of the regulations allow water quality legislation to be changed. Technical provisions for economic analysis for river basin districts, standardised monitoring under the Water Framework Directive and threshold values for groundwater pollutants could all be amended.

Other elements of the law could allow relaxation – or theoretically strengthening – of rules on environmental quality standards for metals, how bathing and drinking water samples should be taken and limit values for sewage sludge applied to land.

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