GOVERNANCE AND ENVIRONMENTAL PRINCIPLES
1 DEFRA refused to adopt more robust independence for the new green watchdog
The Environment Act establishes the Office for Environmental Protection (OEP), the new green watchdog for England and Northern Ireland - subject to the Northern Ireland Assembly approving it. It is intended to hold public authorities, including ministers, to account if they fail to comply with environmental law. The OEP’s independence from the English and Northern Irish governments was a sticking point throughout the Act’s three year passage through parliament, right up to the final moments of debate.
2 Critics are particularly deflated about this ‘glaring omission’
Lord Krebs, who tabled amendments seeking to give the OEP “complete discretion” in carrying out its functions told ENDS: “I fought hard, with support from across the House of Lords, for the commitment to independence of the OEP to be more explicitly spelled out on the face of the Bill”. Environment minister Lord Goldsmith verbally committed to operational independence of the watchdog in the final debate, but it has not reassured everyone. Kyle Lischak, from environmental law charity ClientEarth, said that the Act’s environmental governance provisions were “especially disappointing”.
3 The government argued that it needed to ensure the OEP’s accountability
The government argued through debates that it needed to have some guidance power over the OEP to ensure its accountability. Dame Glenys Stacey, chair of the OEP has always fiercely defended the watchdog’s independence, commenting today: “We are well underway with establishing a functionally independent, fully operational OEP from early in the new year”. George Eustice, environment secretary, has welcomed the act’s passing saying that it “will deliver the most ambitious environmental programme of any country on earth...We are setting an example for the rest of the world to follow.
4 The government gave the courts slightly stronger powers at the eleventh hour
The government gave some slight ground in a new amendment introduced just last week which concerns the court’s ability to grant legal remedies where environmental laws have been breached. Peers had argued that the then wording in the Environment Bill restricted this power. The new amendment acknowledged that in some circumstances granting a remedy to address behaviour or damage will be necessary even if it may cause substantial hardship to the rights of a third party - something peers had argued for. Commenting on this, Lord Krebs said: “The government’s own amendment... moves slightly in the right direction, although the act still leaves things stacked in favour of commercial interests over the protection of the environment.”
5 The act requires organisations to ‘pay regard to’ environmental principles - with some crucial exceptions
The five principles comprise the integration principle, prevention principle, precautionary principle, rectification at source principle, and the polluter pays principle. However, the Ministry of Defence and the Treasury are both exempt from this part of the bill, despite an attempt by the House of Lords to include both departments in a tabled amendment. Liberal Democrat Lords frontbencher Baroness Parminter described this to ENDS as “a gaping hole in the Act”. She said: “These [principles] should be the means to put the environment at the heart of policy making but they are purely for guidance and tax and spend and defence policy are exempted. The first advice to the government from the OEP was on this issue and they strongly articulated the value of all government departments fully taking account of the statement on environmental principles.
6 The environment secretary will be required to set legally binding targets - but not interim ones
The act requires the secretary of state for DEFRA to set long-term legally binding targets on air quality, biodiversity, water, resource efficiency, and waste reduction. These targets must be of at least 15 years in duration, and be proposed by late 2022. However, despite lengthy debates arguing for the introduction of legally binding interim-targets to ensure the long-term targets are met, the government did not adopt them.
7 But non-legally binding interim-targets will be monitored as part of the government’s Environment Improvement Plan
The Environment Bill requires the government to publish an Environmental Improvement Plan (EIP). The government has pledged to set interim targets for each five-year period and lay out the steps it intends to take to improve the natural environment. The 25-Year Environment Plan will be adopted as the first EIP. The OEP is intended to hold the government to account for meeting these targets.
8 Public and political pressure forced the government to increase action on water pollution
Water pollution barely featured in the original iteration of the bill, which at the time was more concerned with abstraction, supply resilience and drainage plans. But following the tenacious work of campaigners and the introduction of a private members bill on sewage from Conservative MP Philip Dunne, the issue rocketed up the media and political agenda, resulting in a public outcry which ultimately forced the government’s hand.
9 The government made three amendments on sewage pollution
To satisfy calls for stronger action, a new duty on government to produce a statutory plan to reduce discharges from storm overflows and their adverse impact, and report to parliament on progress, was added to the bill. A further requirement for government to produce a report setting out the actions that would be needed to eliminate discharges from storm overflows in England, and the costs and benefits of those actions, was also added, with both the plan and the report required before 1 September 2022. The government is also required to report to parliament on the progress towards implementing the plan with the first progress report within three years of the publication of the plan.
10 And then added three more
The first set of amendments did little to assuage concerns about the huge volumes of sewage being dumped into rivers and seas - at least 400,000 times in 2020 for around 3.1 million hours. So the government added three further amendments to the bill in August: a new duty on water companies and the Environment Agency to publish data on storm overflow operation on an annual basis, a new duty on water companies to publish near real time information - within one hour - on the operation of storm overflows, and a new duty directly on water companies to monitor the water quality upstream and downstream of storm overflows and sewage disposal works.
11 But the moves failed to satisfy the House of Lords
Crossbench peer the Duke of Wellington tabled an amendment that would place a duty on “sewerage undertakers to take all reasonable steps to ensure untreated sewage is not discharged from storm overflows into inland and coastal waters”. Responding, the government brought forward its own similar but weaker amendment, which would place a legal duty on water companies to “progressively reduce the impacts of sewage pollution from storm overflows”. The government’s amendment, which refers only to storm overflows rather than the whole sewerage system and asks that only the impacts of overflows are reduced rather than stopping them altogether, passed by 283 votes to 162.
12 Critics say the act weakens existing rules on sewage pollution
Under the EU Urban Wastewater Directive there is an obligation on water companies to avoid spills from storm water overflows save for exceptional circumstances, such as intensives rainfall and snowmelt, and only then if water firms are treating a specified volume of sewage. Critics say that the act weakens this by setting out that “progressive reduction in the adverse impact of discharges” are made. It is also widely accepted that many sewage spills occur outside exceptional circumstances. The UK is still in breach of the directive over sewage pollution in Whitburn in the north east, but having left the bloc it is unclear whether the European Commission will take any action.
13 They are also concerned about how the rules will be enforced
Critics also say that already-weak enforcement of rules will be made weaker as a result of the new act. But environment minister Rebecca Pow said the act will “dock in with the existing enforcement regime in the Water Industry Act 1991”. She added that: “Ofwat can issue enforcement notices that can direct specific actions or fine companies up to 10% of their annual turnover, running to millions of pounds. If we do not see sufficient progress from water companies, Ofwat and the government will be able to take enforcement action, and we will not hesitate to do so.” Under other provisions in the act, the Office for Environmental Protection “will be able to take enforcement action against the Environment Agency or Ofwat or, indeed, the government, should it feel that any of us are not adequately discharging our duties”, she said.
14 The secretary of state has powers to modify the list of problem polluting substances
The act gives the environment secretary the power to maintain and update the list of priority substances used to “assess the chemical status of water bodies, in line with the latest scientific and technical knowledge, now that previous powers to update it (section 2(2) European Communities Act 1972) have been revoked at the end of the transition period”, according to DEFRA. In the last assessment of water bodies, undertaken in 2019 and reported in 2020, all of England’s rivers failed to meet legal standards of chemical health.
15 The act contains a new duty on the water sector to create drainage plans
The act makes the creation of and reporting on five-year drainage and sewerage management plans a statutory duty for the water sector for the first time. The government says that the plans, through which companies “examine and investigate the capacity of their networks, will enable better risk-based assessments of current drainage and wastewater issues, impacts on the environment, and long-term planning, improving our resilience to extreme weather events and risks of sewer/surface water flooding”.
16 It also bolsters water resource planning
The Environment Act requires more collaboration between water companies on managing supply and demand, resilience and environmental improvements, through their statutory water management plans, which also cover five-year periods. “Drawing on lessons learnt over this period, the [act] will make the process more adaptable and help foster greater cross-sector collaboration and a better understanding of the needs of the environment and of all water users,” said DEFRA.
17 The water and sewerage licensing process will be modified
The government says the act “modernises the process for modifying water and sewerage company licence conditions, enabling Ofwat to improve its regulation of water companies through a more modern licence modification process, like the process in place for other utilities”. It says the current process can “constrain responsiveness to government priorities; increase regulatory uncertainty for the industry; and create divergence between individual companies’ licence conditions”. The act intends to strengthen Ofwat’s ability to improve the way water companies operate and is aimed at improving the information Ofwat receives from the sector, according to DEFRA.
18 There has been some movement on long-awaited abstraction reform
Government commitments to improve the oversight of abstraction go back as far as the 2011 ‘Water for Life’ white paper, but it was not until December 2017 that the Environment Agency set out its plans to gradually review and revoke damaging, underused and unused licences in a piecemeal fashion rather than overhauling the clunky paper-based system in one go as green groups wanted. A measure within the act enables the “revocation or variation of permanent abstraction licences, many dating back to the 1960s, without liability for compensation where the change is necessary to protect the environment or where the licence is consistently under-used. Some older abstraction licences do not take account of fluctuating water availability and may enable too much water to be taken from the environment”. The Environment Agency will be able to vary or revoke licences without liability for compensation from 1 January 2028.
19 But a consultation on wider abstraction reform is underway
In September the government launched a consultation on “plans to modernise and simplify water abstraction and impounding regulation in England”. It also plans to bring abstraction licensing under the Environmental Permitting Regime. The move was due to take place this year but has been delayed. At the same time it is also consulting on new proposals to “enhance the Environment Agency’s powers to protect groundwater resources”, it said.
20 A water quality target will be put in place but does not appear in the act
At least one new water target is planned. In a policy paper published in August 2020, the government set out the objectives for targets currently under consideration, including reducing pollution from agriculture, wastewater, and abandoned metal mines, and reducing water demand. Environment Agency chair Emma Howard Boyd said the targets would “help wider efforts to tackle pollution, reduce demand for water and secure clean and plentiful water for all”.
21 The Act’s commitment to halt species decline by 2030 was a big win
Campaigners fought hard for the government to include a target to halt species decline by 2030 on the face of the bill, as opposed to the original wording of simply “furthering the objective” to halt declines. This is in addition to the requirement to set at least one long-term legally binding target for biodiversity. Commenting, Richard Benwell, chief executive of the NGO coalition Wildlife and Countryside Link said: “Becoming the first country with a legal target to halt wildlife decline by 2030 is a world-leading innovation and testament to the huge public and parliamentary demand to improve our state of nature.”
22 New developments will be required to deliver a 10% increase in biodiversity
Over the course of the bill’s passage, the act was strengthened so that a 10% biodiversity net gain requirement on developers would extend to nationally significant infrastructure projects, such as major energy developments. Tony Juniper, chair of regulator Natural England, said that this requirement will help it to build a Nature Recovery Network across the country. He said that the Environment Act “will give us more of the tools and the momentum we need to really put nature on the road to recovery during this decade”. However, not all biodiversity net gain plans produced by developers have been welcomed.
23 The act introduces the power for the Habitats Regulations to be amended
Earlier this year George Eustice announced his plan to “refocus” the Habitats Regulations to deliver creative public policy thinking that delivers results, “rather than relying on change being set principally by litigation and case law”. This prompted concern from green groups who fear the new power will be used to water down the regulations, which contain some of the UK’s strongest legal protections for rare habitats and species, and which have also been known to scupper the plans of developers.
24 It introduces a new system of Local Nature Recovery Strategies
Local Nature Recovery Strategies (LNRSs) are a new system of spatial strategies for nature, and will cover the whole of England - with no gaps. The environment secretary will appoint a ‘responsible authority’ to lead each LNRS area, and this authority will have to map the most valuable existing habitat for nature, map specific proposals for creating or improving habitat, and agree priorities for nature’s recovery. It is intended to help developers avoid the most valuable existing habitat and focus habitat creation where most appropriate. However, a recent consultation mooted a landowner opt-out from LNRSs.
25 Species Conservation and Protected Site strategies will be part of LNRSs
Feeding into LNRS, the act introduces a Species Conservation Strategy as a new mechanism to safeguard the future of particular species at greatest risk, and a Protected Site Strategy, which will seek to achieve a similar purpose in respect of protected sites. The measures will place a new duty on local planning authorities to cooperate with Natural England and other local planning authorities and public bodies in their establishment and operation. However, green groups expressed significant concerns with the strategies last year.
26 Local authorities will have to produce a biodiversity report every five years
Local authorities will be required by the act to produce a ‘Biodiversity Report’ every five years. They will need to describe action taken and its impact, and a summary of action taken under the BNG policy. The reports will also provide valuable information to update Local Nature Recovery Strategies.
27 Conservation covenants have been formalised
Conservation covenant agreements will now need to be executed as deeds, rather than just “in writing signed”. A conservation covenant is an agreement between a landowner and a body such as a charity or public body to do or not do something on their land for a conservation purpose. Environment minister Rebecca Pow said last month that government guidance “will also be drafted to provide clear support on the relevant formalities required for conservation covenants” and to encourage parties to seek legal advice before entering into one.
28 Trees - at home and abroad - have gained some protection
The act requires local highway authorities to consult with communities before felling street trees - unless the trees qualify for certain exemptions. It also contains a whole section on deforestation abroad, and brings in a new system, to reduce illegal deforestation around the world through England’s supply chains. However, the act only prohibits deforestation which is considered illegal in the country it happens in. Writing in a blog for NGO coalition Green Alliance, Ruth Chambers said that “the focus on illegal deforestation and the exclusion of the finance sector from this system is likely to need reconsideration when the legislation is reviewed in two years’ time”. There are also further due diligence requirements placed on businesses, including a duty to establish a system for identifying, assessing and mitigating the risk of illegally produced forest commodities entering their supply chains.
29 The act strengthens forestry enforcement measures
Forestry enforcement measures in the Act will increase fines for illegal felling - including up to unlimited fines - and also streamline the administrative process for the Forestry Commission. Forestry Commission chair Sir William Worsley said the Environment Act “gives our woodlands much needed protection, so we can ensure they live on and continue to bring benefits to people, nature and climate. We are excited about new measures that will improve Forestry Commission’s enforcement powers to help us further protect England’s woodlands from illegal felling, including our most precious ancient woodlands”.
30 There are some changes to wildlife licensing
The act amends the Wildlife and Countryside Act 1981 to introduce an additional purpose for granting a protected species licence in relation to development, which is ‘for reasons of overriding public interest’. It also brings in two additional tests for the granting of such licences: that there is ‘no other satisfactory solution’ and that granting the licence is ‘not detrimental to the survival of any of the population of the species concerned’. Last year, green groups expressed some concerns about this amendment, fearing that it could weaken protections for some species.
31 The government resisted calls to match World Health Organisation guidelines
Despite demands from campaigners and peers in the House of Lords that the act contain a target to reduce particulate matter pollution in line with WHO guidelines ultimately failed. Baroness Sue Hayman – Labour’s environment spokesperson in the Lord’s – tabled an amendment to the bill to make a direct instruction for the government to adopt a target on fine particulate (PM2.5) pollution that is “less than or equal to” the WHO’s guideline level of ten micrograms per cubic metre as an annual mean, “with an attainment deadline of 2030 at the latest”. Although repeatedly mentioning the guideline in papers such as the Clean Air Strategy, the government has also repeatedly avoided a firm commitment to adopting it, and the amendment, despite being voted for in the Lords, failed in the House of Commons.
32 However air quality targets will be set in the future
The act introduces a duty on the government to bring forward at least two air quality targets by October 2022 for consultation that will be set in secondary legislation. The first will aim to reduce the annual average level of fine particulate matter (PM2.5) in ambient air. The second will be a long-term target (set a minimum of 15 years in the future), which the government says “will encourage long-term investment and provide certainty for businesses and other stakeholders”. An environmental targets policy paper published in August 2020 states that a target on reducing population exposure to PM2.5 would be put in place. The government says the “principle of a population exposure reduction target is to prioritise action that is most beneficial for public health and drive continuous improvement”.
33 The Environment Act 2021 amends the Environment Act 1995
The new legislation amends the Environment Act 1995 to “strengthen the local air quality management (LAQM) framework to enable greater cooperation at local level and broaden the range of organisations that play a role in improving local air quality”, says DEFRA. “Responsibility for tackling local air pollution will now be shared with designated relevant public authorities, all tiers of local government and neighbouring authorities.” The environment secretary will be required to review the Air Quality Strategy at least every five years, and to publish an annual progress report to parliament.
34 It also amends the Clean Air Act 1993 to give local authorities more power
The amendments are aimed at helping local authorities reduce pollution from domestic burning, which contributed 38% of PM2.5 emissions in 2019. It replaces the criminal offence of emitting smoke from a chimney in a smoke control area with a civil penalty regime to “enable quicker, simpler and more proportionate enforcement at a local level against the emissions of smoke within a smoke control area (SCA)”. It also strengthens the offences in relation to the sale of certain solid fuels for use in smoke control areas, by “removing the limit on the fine for delivering unapproved solid fuels to a building in a smoke control area, and requiring retailers of solid fuels to notify customers that that it is illegal to buy unapproved fuel for use in a smoke control area unless burning in an approved appliance”.
35 And the Environmental Protection Act to tackle smoke from homes
Amendments to the Environmental Protection Act 1990 allow local authorities to take more “substantive action against those who repeatedly emit smoke and endanger human health by extending the system of statutory nuisance to private dwellings in SCAs”, says DEFRA. Smoke from chimneys that causes a nuisance could result in a local authority issuing an abatement notice and breaching such a notice is a criminal offence and could result in the payment of a fine.
36 New powers to demand environmental standards on vehicles have been introduced
The act introduces a new power for the government to “compel vehicle manufacturers to recall vehicles and non-road mobile machinery if they are found not to comply with the environmental standards that they are legally required to meet”, says DEFRA. The government will also be able to set manufacturers a minimum recall level.
WASTE, RESOURCES AND CHEMICALS
37 Pressure will be taken off local authorities and costs shifted to business
The act introduces extended producer responsibility (EPR) which allows relevant national authorities to make regulations that require manufacturers to contribute to the disposal costs of the products they produce. Last year, Rebecca Pow said local authorities “will still play a huge role, but the great point is that they will not be responsible for all the costs any more...what is brilliant is that the costs will be shifted on to the businesses. They will then be forced to design products that are much easier to recycle”.
38 The industry has high hopes for electronic waste tracking
Powers in the act allow the government to introduce a digital system to track waste movements. Industry experts have told ENDS the system would be “a fundamental change” given that waste is currently measured through quarterly returns and the “very limited” tracking provided by the current Duty of Care regime. DEFRA said the new powers would also “further clamp down on waste crime”. The department told ENDS it hopes the service would go live from 2023/24 but that this would be “dependent on IT development and the transition needs of businesses”.
39 Products will carry resource efficiency labels
The resource efficiency powers in the act will enable the government to set product design and related requirements to ensure products are more durable, repairable and recyclable, according to DEFRA. It will set requirements for manufacturers and producers to provide information about the resource efficiency of their products
40 The government is set to introduce charges for single-use plastic items
The act will also take powers to enable charges for single-use plastic items, similar to the carrier bag charge, to incentivise consumers to use more sustainable items. DEFRA says it will “continue to review the latest evidence on problematic products to take a systematic approach to reducing the use of unnecessary single-use plastic products: this will include utilising existing powers to ban products where suitably environmentally friendly alternatives exist and the evidence suggests that this is the best approach”.
41 Legally binding targets for reducing waste are on the horizon
DEFRA says an important aspect of the Environment Act is the power to set long-term, legally-binding environmental targets, with at least one within the area of resource efficiency and waste reduction. The department says it is exploring how targets can help increase resource productivity and reduce the amount of residual waste we generate.
42 DEFRA says the Environment Act will help it to crack down on waste crime
There are measures in the act aimed at ensuring agencies and authorities can work more effectively to combat waste crime through better access to evidence and improved powers of entry. Existing provisions will be improved and extended to ensure that enforcement against littering and related offences is carried out proportionately “and in a way which retains public trust,” according to DEFRA. Trade body the Environmental Services Association (ESA) said it welcomed the much-needed tightening of legislation around waste crime but that “implementation of this must be supported by increased funding to regulatory and enforcement bodies if they are to have their desired effect to both protect the environment and support investment in legitimate enterprise”.
43 A delayed ban on plastic exports to developing countries is included
The government says the act contains powers which will allow it to “regulate, ban or restrict the import and export of waste, enabling us to deliver on our commitment to ban the export of plastic waste to non-OECD countries”. Green groups have been frustrated by a perceived lack of urgency. In January, when the EU banned the export of plastic waste to developing countries under amendments to the Basel Convention, the government decided more consultation was needed, despite a pledge in the Conservative manifesto to ban the practice
44 Action on deposit schemes and consistent collections rolls on despite delays
As well as EPR, powers in the act allow the government to create deposit return schemes for drinks containers, consistent recycling collections for all homes and businesses, and new requirements for eco-design. In May, Philip Dunne, the Environmental Audit Committee's chairman, said it was disappointing that the government had delayed the introduction of a deposit scheme to 2024 DEFRA then confirmed that its second consultation on consistent waste collections had been delayed. It is these measures - first set out in the 2018 waste and resources strategy - that arguably have the greatest potential to transform waste compliance. However, as ESA notes, “much of the content related to the [resources and waste] policy changes will be subject to secondary legislation, and the important details around the implementation of this act in daily life have therefore yet to be fully seen”.
45 The Environment Act aims for a ‘smooth chemicals transition’
The act gives the secretary of state the power to amend REACH and the REACH Enforcement Regulations 2008. Both pieces of legislation are retained in EU law under the European Union (Withdrawal) Act 2018. The government says this will make it possible to keep the legislation up to date and respond to emerging needs or ambitions for the effective management of chemicals as well as ensuring “a smooth transition to a UK chemicals regime following the UK’s exit from the EU”.