In July this year, the Office for Environmental Protection (OEP) published a letter exchange between it and the environment secretary, Thérèse Coffey, raising concerns 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 nine and 10 of the National Emission Ceilings (NEC) Regulations 2018.
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 nine 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”. Regulation 10 requires that before preparing or significantly revising the National Air Pollution Control Programme (NAPCP), the secretary of state must consult the public.
However in 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”.
In August, the OEP wrote again to Coffey stating 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”.
Now, DEFRA minister Lord Benyon has responded to the OEP, once again dismissing the watchdogs' concerns about the environmental implications of the REUL Act.
“DEFRA has been clear in its commitments to uphold and not weaken environmental, food safety and quality, animal health and welfare and other key protections, and that any REUL reform must be consistent with international obligations,” he wrote.
He also highlighted that from 1 November, ministers will have a legal duty to have “due regard” to the environmental principles policy statement (EPPS) when making policies.
He added that the government uses “expert advice, including that of many independent experts, when making provisions that relate to the environment”.
The government confirmed in a written statement last week that, despite concerns from the OEP, lawyers, academics and NGOs, that it will be pushing ahead in removing regulations nine and 10 from the NEC regulations. These regulations will fall off the statute book by the end of the year.
DEFRA minister Trudy Harrison said: “The NAPCP format is long, complicated and duplicative, and does nothing to improve the quality of the air we breathe. Of those who expressed an opinion when we consulted on the NAPCP last year, a majority agreed that the format could be improved, with a consensus that it was too lengthy and technical. With this in mind, we are considering how we can simplify the process to reduce administrative burdens and improve transparency.”
In the original letter exchanges, the OEP also raised concerns about the impact of the REUL Act on assimilated case law.
The letter gave specific cases that Stacey stated “illustrate the gaps that may be left once the relevant provisions of the REUL Act come into force at the end of this year”.
These include Harris v Environment Agency. This is where, in the Environment Agency lost a court case relating to damage caused by water abstraction activities that it had given formal consent to. Local landowners Timothy and Angelika Harris had challenged the regulator for not addressing concerns about the impact of abstraction beyond three sites of special scientific interest, when it was aware of potential harm to them.
In his letter, Lord Benyon wrote that DEFRA “does not currently have immediate plans” to restate EU interpretive effects via secondary legislation, however, he said the department will “continue assessment of the legal implications on case law and will monitor the implementation of UK legislation so that action can be taken should it be needed”.
Writing on Twitter, Ruth Chambers, senior fellow at Greener UK, raised specific concerns about this, describing it as an “unnecessarily high risk approach”.
“Given the complex web of case law on the environment. Law making must be proactive not 'after the event',” she wrote.
ENDS has contacted the OEP for comment.