1. The government would not legally be held to account for any targets it sets until 2037
The Environment Bill confirms that the government intends to create Statutory Environmental Improvement Plans (SEIP) to ensure the delivery of legally-binding environmental targets in areas such as air, water, waste and biodiversity by 2022.
However, while there would be five-year interim targets, the bill in its current form does not contain any provisions to hold government to the legal commitments set out in the SEIPs until the year 2037.
Charlotte Burns, a professor at the University of Sheffield and co-chair of the Brexit & Environment research group, said the lack of binding shorter-term targets constituted a possible pitfall in future UK-EU trade talks, which would kick off if MPs and the European Parliament give the green light to the new Brexit deal.
2 The bill’s environmental principles will not apply to everyone
The environmental principles set out in the bill to govern the UK’s environment after Brexit have come under fire for absolving responsibility from key public sectors.
The Environment Bill contains a list of core principles, modelled on those found in EU law, that ministers would be required to “have due regard to” when making policy decisions. These include a precautionary approach to environmental risk and a principle for the polluter to pay for environmental damage.
But decisions relating to the Ministry of Defence, national security and tax and spending would not need to take account of the principles under current plans, something Green Party co-leader, Caroline Lucas MP, said she would fight to be changed.
3 The bill does not commit to environmental non-regression
The environmental umbrella group Greener UK has expressed concern that the bill does not commit the secretary of state to uphold existing environmental standards in the UK.
The bill does, however, state that the environment secretary “must be satisfied” that the policy statement on environmental principles “contributes to the improvement of environmental protection”.
4 The new environmental watchdog still lacks independence
The new green watchdog, the Office for Environmental Protection (OEP), would have the power to scrutinise the government’s climate change targets and request a new form of legal review of public bodies suspected of breaching environmental law, as set out in the Environment Bill.
But some experts still worry about the independence of the nascent regulator.
The OEP’s proposed governance structures remain largely unchanged in the latest bill compared with its draft form, with the secretary of state responsible for determining its budget and who is appointed, despite calls for parliament to take on that role.
5 Roll out of biodiversity net gain will exclude national infrastructure projects
The Environment Bill would introduce the concept of “biodiversity gain”, or biodiversity net gain, into the planning system, forcing developers to provide a 10% increase in natural habitat value as part of any planning application.
The policy would apply to all developments requiring an environmental impact assessment under the Town and Country Planning Act 1990.
But experts such as Dr Sue Young, head of land use planning and ecological networks for the Wildlife Trusts, said that the exclusion of nationally significant infrastructure projects under the Planning Act 2008 meant the most damaging development schemes were excluded from the policy.
6 Local authorities may not be able to shoulder the responsibility of nature recovery plans
To achieve the government’s ambitions to create a Nature Recovery Network, a nationally connected habitat for wildlife in line with the 25-Year Environment Plan, the bill would place extra duties on local authorities and planners.
Under the bill’s provisions, every local authority in England would need to create a “biodiversity report”, summarising what action it has taken over five years to enhance biodiversity, and a “local nature recovery strategy”, under the Natural Environment and Rural Communities Act 2006.
But as one expert told ENDS, councils are already facing budgetary pressures and many lack access to in-house ecological expertise to help carry out such reports.
7 Air quality targets are not tough enough
While the new bill lays out responsibilities for DEFRA to improve air quality, including a duty to set a fine particulates PM2.5 target by 2022, it does not commit the government to reach the World Health Organization’s goal of 10 micrograms per cubic metre by 2030 at the latest.
Katie Nield, clean air lawyer for activist lawyers ClientEarth, also said that the absence of a limit value for PM2.5 was “worrying”, and risks the UK “going backwards” on air quality.
8 Abstraction regulatory powers too late
The bill would give extra powers to the Environment Agency on water abstraction.
If enacted, the agency would have more powers 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”.
However, it would not be given these abstraction licence revocation powers until 1 January 2028, even though England’s water supplies are already under pressure.
9 Water efficiency commitments did not appear in the bill
Some NGOs have also expressed disappointment that the bill did not include any water efficiency commitments. This is despite a pledge in the 25-Year Environment Plan to reduce water use and halve water leakages by 2050.
10 Accompanying statutory instrument gives government regulatory wiggle room
Regulations published immediately before the Environment Bill could allow the government wiggle room to reach its environmental targets, experts fear.
The Environment (Legislative Functions from Directives) (EU Exit) Regulations 2019 were approved without debate by 280 votes to 204 immediately prior to the publication of the bill.
While the regulations stated aim is to give ministers powers currently wielded by the European Commission, experts such as Brendan Moore, coordinator of the Brexit and Environment network, said it gave “more latitude” to undermine - or potentially strengthen - environmental policy.