‘Polluter doesn’t pay’: OEP provisions undermine the rule of law, say legal experts

Provisions in the environment bill on establishing the Office for Environmental Protection (OEP) threaten to “undermine the rule of law”, according to a scathing report from the legal charity the Bingham Centre.

The bill, which is due to have its second reading in the House of Lords today, establishes a new court procedure for righting breaches of environmental law by a public authority, called the environmental review. It is designed to be analogous to the long-established judicial review procedure.

If the court makes a finding that the authority has failed to comply with environmental law on an environmental review, it must make a “statement of non-compliance”. 

However, this statement does not affect the validity of the unlawful conduct, according to the report, meaning that while an action harming the environment may be considered unlawful, it will not necessarily be required to cease.

The report's author, Dr Ronan Cormacain, said: “This new default undermines the principle of legality with a presumption that unlawful acts by a public authority are valid.”

Further remedies are available under the bill, but they suffer “significant restrictions,” according to Cormacain.

He notes that a court in an environmental review is not permitted to quash an unlawful action by a public authority if doing so risks causing substantial hardship to, or would substantially prejudice, a third party. This means that a clear unlawful action must be allowed to continue if a third party stands to benefit from it, or would suffer a loss if it does not continue. 

“This approach fails to take account of the other factors such as harm to nature and to people. It would have the net effect of introducing a new “polluter doesn’t pay” principle into environmental law,” said Cormacain.

The report also criticises the lack of independence of the OEP, claiming the OEP is ‘impartial’ rather than properly ‘independent’. 

Cormacain notes that the secretary of state can issue guidance to the OEP on its enforcement policy and on its enforcement functions, and the OEP must have regard to this guidance. The secretary of state is also closely involved in appointing, paying and reappointing the members of the OEP. These all limit the extent of the OEP’s independence. 

“There is the real risk of the secretary of state having a direct legal route to influencing enforcement action against the secretary of state,” added Cormacain.

Commenting on the bill, Ruth Chambers of the Greener UK coalition said: “While ministers have strengthened the new green watchdog in some areas, it should not be expected to receive guidance from the ministers it is meant to hold to account, and the court must be able to rectify as well as rule over breaches of environmental law.”

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