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The Environment Act 2021

19-11-2021

The UK’s new legal framework for protection of the natural environment, the Environment Act 2021 passed into UK law on 9th November. The Act has been long awaited and was broadly welcomed by environmental activists and the public as it gives the Government the power to set long-term, legally binding environmental targets.

The Environment Act 2021 establishes an Office for Environmental Protection (OEP), responsible for holding the government to account and ensuring compliance with these targets. It also mandates that five key Environmental Principles are embedded across domestic policy making, cementing the importance of environmental governance across sectors.

Progress through Parliament

As the first environment bill in England for 26 years, this is a landmark development in the UK environmental policy landscape. Initially published in 2019, the Environment Bill was intended to pass into law as the UK left the European Union to replace the environmental regulation and regulatory functions previously provided by the European Commission. However, multiple debates and amendments, not to mention a global pandemic, have meant that the Bill has been repeatedly delayed in its journey through Parliament. Most recently, disputes have arisen in its progression through the House of Lords over the degree of independence of the OEP, the new environmental watchdog. Complete independence of the OEP would ensure a firewall in terms of separation of this function from the political process. This has been argued by some as essential for ensuring that the government is held to account. After pushback from the Lords, a final amendment to the Act means that ministers have retained the ability to issue guidance over the OEP’s enforcement work, as well as controlling the OEP budget and board. How this will affect the operation of the OEP remains to be seen.

Another controversial dispute arose over provisions for the management of storm overflows, which triggered widespread media coverage. The discharge of raw sewage into rivers by water companies is permitted under extreme weather events to prevent infrastructure from becoming overwhelmed. However, controls over when and how often water companies can do this are open to interpretation. MPs initially voted against mandating that a duty should be placed on companies to ‘take all reasonable steps to ensure untreated sewage is not discharged from storm overflows’. But the text of the final act includes the slightly more flexible requirement for water companies to ‘secure a progressive reduction in the adverse impacts of discharges from storm overflows’. This allows a degree of flexibility for water companies but provides no defined timescale for making reductions.

Now the Environment Act has passed - what does this mean for regulation of the environment in the UK?

Environmental Principles

The Act outlines five environmental principles that should be implemented with ‘due regard’ in policy making across government sectors, intending to ensure that environmental protection is upheld as a cross cutting theme. These include the precautionary principle, which states that when there is a risk of severe harm to the environment precautionary measures should be taken even with a lack of conclusive evidence, and the polluter pays principle, which places the burden of cost of managing pollution on those who produce it. The government is also required to release a statement on effects on the environment when it is implementing new primary legislation, justifying that it will not reduce the existing level of environmental protection.

Environmental Target Setting

The Environment Act requires an Environmental Improvement Plan (EIP) that lays out the government’s intentions to improve environmental quality over a period of at least 15 years, to be in place at all times. The government must report on progress made towards this EIP annually. The 2018 25 Year Environment Plan (25 YEP) is the first of these. The 25 YEP outlines ten goals for the environment with subsequent objectives that will contribute to achieving these goals.

The Act requires the government to set at least one long-term target (spanning a minimum of 15 years), supported by interim targets set in a five year cycle, in each of four identified areas: Air Quality, Biodiversity, Water and Resource Efficiency and Waste Reduction. The areas which require mandatory target setting align with four of the ten 25 YEP goals. An additional target for mean levels of PM2.5 is also required. These targets must be set before November 2022 – a rough scope outlining what these targets will involve has been identified but not yet precisely defined. However, these targets must be designed to help achieve the 25 YEP goals and should be based on tangible environmental outcomes.

As well as mandating target setting in the specific areas outlined above, the Act also allows the government to set long-term targets in respect of any area that relates to the natural environment. As the Act is the legislative backing for the 25 YEP, it will be interesting to see which, if any, of the other goals from the plan, such as reducing risks from flooding, more sustainable use of natural resources and managing chemicals exposure will also have legally binding long term targets implemented. Not explicitly setting these targets in the Act leaves flexibility in the future approach taken by the government but this also means that the level of ambition of these targets is flexible. This is yet to be determined, and thus the level of environmental change that will result from setting these targets remains to be seen.

Monitoring

The Environment Act sets up a statutory five-year cycle of monitoring and reporting, meaning that progress towards meeting the goals and objectives set in Environmental Improvement Plans will be regularly monitored and changes can be made if necessary. The first of these reviews of the 25 YEP is due to be completed by January 2023.

The Office for Environmental Protection

The OEP will monitor the implementation of environmental law and may report on any matter associated with this implementation. The scope of this is broad, but it excludes climate change law and activities to avoid overlap with the Climate Change Committee. The Climate Change Committee has similar responsibilities in providing oversight on matters relating to the 2008 Climate Change Act, although crucially it has no enforcement function. In contrast, the OEP has the power to conduct an investigation into whether public authorities are failing to comply with environmental law, and can apply for statutory review in cases of serious breaches. Before leaving the European Union, this function of holding public bodies to account when implementing environmental law was carried out by the European Commission and the European Court of Justice. Therefore, establishing an independent OEP through the Environment Act is crucial as it fills a legislative gap that would otherwise be left after leaving the European Union.

Presented as world-leading by the government, the Environment Act 2021 certainly lays the foundations for wide scale action to safeguard our natural environment. However, the passing of this Act is just the beginning - the degree of change in the quality of the environment that will be achieved is heavily dependent on the extent to which legally binding targets are implemented and how effectively the OEP will monitor and enforce compliance. With the first round of targets due to be set in late 2022, the public consultation due to be held in February will be the first test of the level of ambition that these targets will deliver.



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