On 9th November 2021 the Environment Act 2021 finally completed its passage through Parliament, a tortuous passage that had taken over 600 days in three Parliaments since the time that the first draft was published in 2018.
Why is this important?
The new Act is very significant, as it represents for England the basic framework for applying environmental laws following Brexit. EU environmental laws are applied by national laws within EU member states, and are ultimately enforced by the European Commission and the Court of Justice of the European Union. The Environment Act 2021 represents the structure offered by the UK government for the oversight and enforcement of environmental laws in England.
What are the key components of the new Act?
Passage of the Act was preceded by months of debate especially about the governance provisions of the Act. The new Act establishes the Office for Environmental Protection, with responsibility for monitoring and overseeing the enforcement of environmental laws by public bodies in England. But it does this in a limited and heavily circumscribed way. Environmental principles will be applied to the law, but only through a policy document drafted by the Secretary of State, and subject to exceptions which he has set. Appointments to the newly ‘independent’ Office for Environmental Protection will be made by the Secretary of State, who will also control the funding of that body. Crucially, the targets applied and required to be achieved by law for different environmental media such as air, water and waste, will be those selected by the Secretary of State.
At a major conference convened by Wildlife and Countryside Link on 6th December 2021, Secretary of State for EFRA George Eustice noted that –
- the recent passage of the Environment Act 2021 was only the beginning;
- the government had been able to press ahead with the establishment of the Office for Environmental Protection ‘OEP’ and recruitment of the Chair, Board and Secretariat;
- there had been almost a year’s work on preparation of environmental targets, and whether to retain “legacy targets” from the EU or to establish new targets for the UK;
- there had been much work in preparing policies on Biodiversity Net Gain and on Nature Recovery Strategies;
- there was much in the Act about waste and resources, deposit return, extended producer responsibility;
- there had been an initial consultation on Environmental Principles – and a final version of the guidance on that was due in early 2022;
- there would be a statutory consultation on Environmental Targets by Spring 2022 – these could cover waste and resources, resource efficiency, water quality (nutrient pollution, diffuse pollution, water companies and sewerage, mining pollution);
- Biodiversity and Biodiversity Net Gain would be addressed by an overall target on species abundance, with subsidiary targets for example on habitat creation contributing to this;
- Air Quality targets would include one for PM2.5, but could also cover, for example one on population exposure and one on Ammonia;
- Another important factor was agricultural policy, with £2 billion re-purposed in the first year, starting to replace area payments with sustainable farming incentives and a move towards soil protection.
Progress Made
It is right to note the real progress represented by the new Act’s provisions on Biodiversity Net Gain, Nature Recovery Strategies, an overall Species Abundance Target and some of the new provisions on protected sites. In these areas the government seems genuinely committed to real change, and the NGOs who campaigned at length for the changes seem to relish the opportunity to see these policies develop successfully. Changes in these areas will be important for all infrastructure developments and future projects, and will have a major impact on planning.
Environmental Targets
There is less confidence among some of those closely following the development of the new legislation about the process for setting environmental targets, which will be taken forward in a statutory consultation early in 2022. The government seems minded to revisit what it describes as “EU legacy targets”, and there is some concern that it may be preparing for a wholesale revision and scaling back of ambitions to deliver a high level of environmental protection. We expect the statutory consultation on targets, along with the first consultations on its policies and approach by the Office for Environmental Protection, to be a key set of indicators of future policy and of high practical importance.
William Wilson has over 25 years’ experience working as a senior lawyer on environmental and energy laws and regulation within government, private practice and consultancy.
His practice has included UK and EU environmental and energy laws and work on water, waste, air quality, industrial emissions, chemicals regulation, radioactive substances and environmental regulation. He worked as a senior lawyer at the UK Department of the Environment/DETR/Defra, has worked with all of the devolved administrations in the UK, and has undertaken legislative drafting projects in the UK, EU, Southeast Asia, Middle East and for a Crown Dependency.
He spent a year in the USA on a Harkness Fellowship, visiting 25 states and researching and writing a book on ‘Making Environmental Laws Work – Law and Policy in the UK and USA”, and he is currently Consultant Editor for Halsbury’s Laws volumes on Water and Waterways. His recent work includes in-depth coverage of climate change, Green Recovery, energy transition, net zero, and the full implications of the COP26 climate negotiations for businesses and future policy.
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