84: Brexit: Environment Bill 2019-21 and non-regression – road to nowhere?

Back in 2017, Michael Gove, in his first keynote speech as Environment Secretary, outlined the government’s ambitious ‘Green Brexit’ vision to outclass the EU’s environmental regime.

But the government’s flagship piece of legislation, the Environment Bill (the Bill) is making very slow progress through Parliament. It was first introduced back in October 2019 but, due to delays caused by a general election and COVID-19, did not reach Committee stage in the House of Commons until November 2020, with Report Stage in the House of Commons not starting until 26 January 2021.

Now, to the disappointment of many, the government has confirmed that the Bill will be carried over to the next parliamentary session – citing ‘exceptional pressure on the parliamentary timetable’ caused by COVID-19 pandemic. But that may not be the only reason.

A Commitment to Non-regression?

The recently concluded UK / EU Trade and Cooperation Agreement (TCA) includes (in Part Two (Trade [etc] Arrangements) Heading One (Trade), Title XI (Level playing field), Chapter 7 (Environment and Climate – see our summary table) a non-regression clause designed to prevent the UK and EU softening environmental protections. The government has repeatedly stated that it has no intention of doing so.

Article 7.2.1 to 7.2.3 states:

1. the Parties affirm the right of each Party to set its policies and priorities in the areas covered by this Chapter, to determine the environmental levels of protection and climate level of protection it deems appropriate and to adopt or modify its law and policies in a manner consistent with each Party’s international commitments, including those under this Chapter;
2. a Party shall not weaken or reduce, in a manner affecting trade or investment between the Parties, its environmental levels of protection or its climate level of protection below the levels that are in place at the end of the transition period, including by failing to effectively enforce its environmental law or climate level of protection; and
3. the Parties recognise that each Party retains the right to exercise reasonable discretion and to make bona fide decisions regarding the allocation of environmental enforcement resources with respect to other environmental law and climate policies determined to have higher priorities, provided that the exercise of that discretion, and those decisions, are not inconsistent with its obligations under this Chapter.

While paragraphs 1 and 3 appear to grant a wide discretion to the UK and EU to set their own environmental policies, paragraph 2 states that each ‘shall not weaken or reduce’ its environmental or climate level of protections below those in place at the end of the transition period.

To prepare the domestic regime for the end of transition, the UK has already taken steps to modify EU-derived environmental protections so that they will continue to operate effectively after transition. For example, changes have been made to the Conservation of Habitats and Species Regulations 2017 by the Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019, to transfer functions from the European Commission to the appropriate authorities in England and Wales, to create a national site network comprising the protected sites already designated, to establish management objectives for that national site network, to impose a duty on appropriate authorities to manage and adapt the national site network as a whole to achieve those objectives. (The government’s own guidance on these changes is here.)

The TCA non-regression clause clearly does not require the parties to ‘align dynamically’, ie to track each other’s improving environmental standards. And it is caveated in another important respect: it only prohibits changes ‘affecting trade or investment between the Parties’. This means that the UK and EU may modify environmental standards in future so long as trade or investment between the parties is unaffected.

It is also unclear whether the UK or EU’s standards are to be treated as a whole, or piecemeal. When questioned by MPs last month, OEP chair Dame Glenys Stacey said:

‘I have not yet been able to find a definition of what [non-regression] is,” she said. “Does it mean that on balance there is no regression, but one can lower a standard in one place, increase a standard in another, and somehow call that ‘non-regression’, or are we saying […] that there should be no change in any respect but for the better? The honest answer is that I do not know yet.’

A new environmental regime

It is in that new context that the Environment Bill 2019-21 must be appraised.

The government’s Policy Paper claims that the Bill—

• represents ‘urgent and meaningful action to combat the environmental and climate crises’;
• will act ‘as a key vehicle for delivering the bold vision set out in the 25 Year Environment Plan’; and
• will ‘deliver the most ambitious environmental programme of any country on earth’.

A welcome aspiration but an ambitious task indeed and the current delays do put into question how ‘urgent’ the government’s action really is.

Each part of the Bill would justify its own blog entry. In this entry we will focus on the provisions relating to environmental governance and will consider further key provisions of the Bill in our next blog post.

Environmental principles, targets and improvement plans

The Bill sets out a framework for legally-binding targets to deliver environmental improvements. It provides a new power for the Secretary of State (SoS) to set long-term environmental targets with a requirement for at least one long-term target in each of the following four priority areas: air quality, water, biodiversity and, resource efficiency and waste reduction.

In addition to these priority areas, the SoS must set a target for PM2.5 (fine particulate matter) in ambient air before 31st October 2022, but the Bill falls short of requiring the target to be in line with WHO’s guidelines by 2030, as had been widely expected. The targets set will be legally-binding on the SoS, and be reviewed by 31st January 2023, and then every five years.

There is also a requirement for the SoS to prepare an Environmental Improvement Plan (EIP). The government’s 25 Year Plan is to be treated as the first EIP.

The Bill itself is silent on the content of environmental target provisions and allows targets to be revoked or lowered relatively easily on social and economic costs grounds, which may leave the door wide open to the regressive weakening of environmental standards depending on the politics of the day.

Under clause 16 of the Bill, the Secretary of State must prepare a policy statement on environmental principles, explaining how the environmental principles should be interpreted and proportionately applied by Ministers when making policy.

The government has now launched a consultation on a draft ‘environmental principles policy statement’ that will be required once the Bill becomes law, whenever that may be. The consultation is here and it lasts until 2 June. Rather hidden at the bottom of the consultation page is a link to the draft statement itself, which can be found here.

Next time we will consider the new regulator proposed in the Bill – the Office of Environmental Protection – and the proposals for waste and resource efficiency, air quality and environmental recall, water and biodiversity.

‘We’re on a ride to nowhere, Come on inside, Takin’ that ride to nowhere, We’ll take that ride’ (Talking Heads, Road to Nowhere)

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