1 The OEP’s board meets for the first time today
The watchdog’s senior leadership consists of chair Dame Glenys Stacey; interim chief executive, Natalie Prosser; and non-executive directors Paul Leinster, the former chief executive of the Environment Agency; environmental law expert and barrister professor Richard Macrory; conservationist professor Dan Laffoley, and chair of the Institution of Environmental Sciences, Julie Hill.
2 It fills a ‘governance gap’
Part of the European Commission’s role is to ensure that member states uphold EU law, which can lead to legal action against them. Leaving the EU meant this role was absent, posing a particular problem for ensuring that environmental objectives are met. After a heavy lobbying campaign by environmental groups, the government admitted that a watchdog function was needed after Brexit.
3 It won’t issue fines…
The Environment Bill will leave the OEP without the commission’s biggest stick: the ability to issue fines. Labour’s attempt to lend the OEP this power was resisted by the government. But under the Withdrawal Agreement, the EU executive will still be able to bring new cases before the Court of Justice of the EU until the end of 2024.
4 … but the OEP should act more quickly than Brussels
A fundamental weakness of the European Commission’s enforcement system is that it can take years to progress – notoriously so in the case of breaching air quality limits. Stacey has said that the OEP will be “demonstrably more responsive and nimble”.
5 The OEP will be able to demand information
The Environment Bill will empower the OEP to issue ‘information notices’, demanding details on an alleged breach of environmental law if there are “reasonable grounds” of suspicion and if it is “serious”.
6 Initial enforcement will be through ‘decision notices’
If the OEP finds, on the balance of probabilities, that environmental law has been breached, it will issue a decision notice against the relevant public authority or authorities, setting out how it should be remedied, mitigated or prevented in the future. A response will have to be made within two months.
7 An environmental review could follow
The OEP may apply to the High Court for an ‘environmental review’ if it considers a decision notice has not been met satisfactorily. That could lead to a ‘statement of non-compliance’, through which the court could grant any remedy available through judicial review other than the award of damages. However, that power is circumscribed in the latest version of the Environment Bill, preventing any remedy that would cause “substantial hardship to, or substantially prejudice the rights of, any person other than the authority, or be detrimental to good administration.”
8 Judicial review will be available in some circumstances
The OEP will be allowed to apply for judicial review “in urgent cases”, according to the bill. This will be where the conduct of a public authority “constitutes a serious failure to comply with environmental law [and] is necessary to prevent, or mitigate, serious damage to the natural environment or to human health”.
9 It’s not just a watchdog
Although its main function will be enforcement, the OEP’s functions include monitoring the implementation of environmental law, reporting annually to parliament, scrutinising official data and advising the government on amending the green statute book.
10 The OEP is not yet a statutory body
At the moment, the OEP has no legal powers – those will come when the Environment Bill receives royal assent. But, in the interim period, it will be able to consider complaints about environmental lawbreaking by central government and English public bodies, report on progress in implementing the 25-Year Environment Plan, recruit staff, open consultations and establish policies. It will also assess progress against targets for air quality, water pollution, biodiversity, waste and resource efficiency once those are set under the bill.
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11 The interim OEP replaces another interim body
The OEP should have been fully operational before the end of the Brexit transition. A combination of no-deal Brexit planning and the pandemic put paid to that aspiration. Instead, an even more interim body was created, the ‘Interim Environmental Governance Secretariat’, within DEFRA, to begin forming the watchdog. Its staff was drawn from the Natural Capital Committee, whose role in monitoring the 25-Year Plan the OEP will replace.
12 The OEP is based in Worcester
The OEP is headquartered in Worcester, as part of plans to spread government jobs outside London.
13 Its independence is questionable
Amendments to the Environment Bill last year have limited the watchdog’s ability to act without government interference. Its senior leadership is government-appointed, and environmental campaigners have particularly opposed the government’s power to issue guidance on the formation of its enforcement policy.
But Stacey told ENDS earlier this year that her own record of independence was “very strong”. I don’t think anyone would question it... And why would I change my spots now?”
14 It is already considering complaints
15 The government has taken a leaf from the Climate Change Act
The government is establishing the OEP in a similar fashion to the Climate Change Committee (CCC), which was up and running in ‘shadow’ form before it was formally established under the Climate Change Act 2008.
16 The OEP will work with other watchdogs
The OEP’s remit will extend to England and Northern Ireland, though that is subject to confirmation by the Northern Ireland Assembly.
A broadly parallel body, Environmental Standards Scotland, is already operational, chaired by former Scottish public services ombudsman Jim Martin, with Brendan Callaghan as chief executive. He was previously head of operational delivery at Scottish Forestry.
A comparable watchdog is also expected to be created in Wales, working alongside its existing future generations commissioner. A Senedd briefing says that the nation has the “weakest environmental governance structures in western Europe”.