In July, the Office for Environmental Protection (OEP) published a letter exchange with the environment secretary, Thérèse Coffey, about the Retained EU Law Act.
In her letter, OEP chair Dame Glenys Stacey raised specific concerns with the government’s plans to revoke regulations 9 and 10 of the National Emission Ceilings (NEC) Regulations 2018.
READ MORE: ‘Major alarm bells’: Plan to revoke key parts of EU air quality regulations sparks concern
The NEC Regulations set legally binding emission reduction commitments in accordance with the National Emission Reduction (NERC) for 2020 and 2030 for five air pollutants: fine particulate matter (PM2.5); sulphur oxides (SOx); ammonia (NH3); and volatile organic compounds (VOCs).
Regulation 9 requires that the secretary of state “prepare and implement a national air pollution control programme in order to limit anthropogenic emissions in accordance with the national emission reduction commitments.” And regulation 10 requires that before preparing or significantly revising the National Air Pollution Control Programme (NAPCP), the secretary of state must consult the public.
In the first letter, Stacey warned that the “revocation of these regulations weakens accountability and transparency and – in the absence of an alternative, comprehensive plan – it has the potential to weaken environmental protection”.
In her response, Coffey dismissed these concerns, stating that the government remains committed to reducing emissions and that the intent in removing these regulations is to “reduce administrative burdens and aid transparency regarding air quality emissions policy”.
The OEP has now published its response to Coffey, which was sent on 30 August. In the letter the OEP has said that “regrettably, [the] letter does not address the wider UK perspective, yet concerns continue to be raised about the UK-wide implications of this revocation”.
“We remain of the view that removal of these regulations without alternative statutory requirements constitutes a weakening of the legal framework supporting delivery of improved air quality”, it states.
In an annex to the letter, the watchdog has highlighted that given the UK failed to meet its emission reduction commitment for particulate matter (PM2.5) in 2021 and is not on track to meet its 2030 emission reduction commitment for four out of five key air pollutants, the NAPCP is “particularly important”.
The government has said that its intention to revoke these regulations is to remove duplication. However, the OEP has said it can find “no legislative provisions that are directly duplicative of the requirements of the regulations to be revoked.”
Specifically, the OEP writes that it sees regulation 9 of the NECR as containing “important safeguards” in terms of accountability.
For example, under this regulation, should emissions inventories or projections show that emissions in the UK are, or are at risk of exceeding the NECR commitments, the secretary of state must review the NAPCP within 18 months.
The need to review the NAPCP was triggered earlier this year as a result of the most recent projections.
“These triggers create ongoing, statutory accountability as well as supporting course correction if the UK is not on track to meet its commitments,” the document states.
The OEP adds that this “ensures that policies and measures for achieving emissions reductions are fit for purpose and are making the anticipated contributions to improving air quality that are needed across the UK.
“Whilst this requirement may be considered burdensome by some, we would consider it to be an example of good practice as regards monitoring and evaluation, with feedback on the efficacy of measures informing continuous improvement. Ultimately this type of accountability improves the likelihood of meeting targets by ensuring progress stays on track and approaches are adjusted accordingly.”
Regulation 9(6) of the NECR also sets out that public authorities must “have regard” to the NAPCP when exercising any functions which significantly affect the level of emissions of relevant pollutants.
The OEP says it “does not consider that this duty is fully duplicated elsewhere in domestic law and that the loss of this obligation could have “unintended consequences for public authorities, such as those acting in a regulatory capacity”.
The watchdog has also warned that there is no publicly available assessment as to whether the revocation of these regulations would likely lead to a weakening of environmental protections relating to air quality, “nor is there any indication as to how the Environmental Principles Policy Statement (EPPS) has been considered in the decision to revoke these regulations”.
“Given our concerns regarding the gap that will be left by revocation, we consider there to be a risk that their removal could undermine government commitments in this regard,” the document states.
While the commitments themselves will remain in place, the OEP has warned that without a programme to realise them, the likelihood of meeting them may be reduced.
“Overall, we conclude that removal of these regulations, without an alternative statutory requirement, constitutes a weakening of the legal framework supporting delivery of improved air quality”.
A DEFRA spokesperson said: "When we consulted on the National Air Pollution Control Programme, as required by the National Emission Ceiling Regulations, a number of stakeholders said they found the document unhelpful and inaccessible. With this in mind, we are considering how we can simplify the process to reduce administrative burdens and improve transparency.
"The emission reduction targets set out in the National Emission Ceilings Regulations remain unchanged and there has been no reduction in the level of environmental protection. As the Secretary of State said in her response to the OEP, we remain committed to achieving the reduction targets set out in the National Emission Ceilings Regulations and are maintaining the reporting provisions to ensure there is transparency on our progress.”