The Office for Environmental Protection: environmental change effector or the government’s protector?
Following the United Kingdom’s pledge to become net zero by 2050, the Court of Justice of the European Union’s determination that the UK has ‘systemically and persistently’ breached air pollution limits since 2010, and COP 26, it is clear that public authorities must be held accountable for their actions, or lack thereof, in tackling the climate crisis.
As part of the government’s latest effort to ensure their targets are met, the Office for Environmental Protection (‘the OEP’) was established in November 2021 by the Environment Act 2021 to hold public authorities to account and ensure they are complying with their obligations under environmental law.
The OEP itself has stated that ‘there has never been a more crucial time to protect and improve the environment’, however questions have been raised as to whether they will be able to contribute to environmental protection and the improvement of the natural environment impartially.
What is the OEP’s mission and how will it be achieved?
The OEP’s Draft Strategy states that its mission is to ‘protect and improve the environment by holding government and other public authorities to account’.
Easier said than done, the OEP has three functions to assist them with their mission:
- Scrutiny – the OEP can monitor, scrutinise and report on both the implementation of environmental law by the government, and the government’s progress in meeting their environmental plans, goals and targets. The government has a duty to respond to OEP reports, a welcome level of accountability, though it is not clear to what extent the government’s reply must include a meaningful resolution to right their wrongs, and whether there will be consequences for the government if they do not implement changes;
- Advice – the OEP is able to advise the government on changes to environmental law, as well as any other matter relating to the natural environment; and
- Enforcement – the OEP is currently consulting on its enforcement policy, but they have set out the following bespoke enforcement powers.
- a. gathering information – public authorities must cooperate with and give reasonable assistance to the OEP if requested, aside from some exempt groups, such as both Houses of Parliament and ‘a person exercising a parliamentary function’. Such information gathering is achieved via an information notice, to which the public authority must respond and provide the information requested if it is reasonably practicable. It seems counterintuitive that some of the people the OEP will be holding accountable do not have to comply with this obligation;
- b. investigations – investigations to ascertain whether a public authority has complied with environmental law can be carried out following a complaint to the OEP, or on the OEP’s own initiative;
- c. reports and recommendations – the OEP will issue a report following any investigation undertaken, setting out their conclusions on whether a public authority has complied with environmental law, and making recommendations. The OEP has stated that they will ‘expect public authorities to comply with any recommendations we make’ – whether this will happen in practice remains to be seen, however the OEP do have further powers to seek compliance;
- d. decision notices – decision notices may be used in ‘appropriate cases’, setting out the OEP’s conclusions on environmental law compliance, why a failure is deemed serious and recommended remedial steps. A public authority is required to respond to such a notice, confirming whether they will undertake the recommended steps. These notices are only to be used where the failure is serious, and are not a necessity following an investigation unlike a report;
- e. taking public authorities to court – the OEP believes that court action is a last resort, but will commence proceedings in the High Court via an environmental review if necessary. If satisfied that the public authority has failed to comply with environmental law the court will issue a statement of non-compliance, to which the public authority must reply within two months setting out remedial steps they intend to take. This action is limited to instances where an information notice and decision notice have been served, which may hinder the use of this power given that decision notices are only for the most serious of failures.
The OEP also has the ability to apply for, or intervene in, a judicial review, a topic my colleague Ally Temple discussed in her article ‘Will the Office for Environmental Protection be able to hold the government to account?’.
Are there drawbacks to the OEP’s powers?
Possibly the largest drawback to the OEP’s powers is the scope of their application. Currently the OEP can only pursue public bodies, and over the last six months it has become clear that private companies, such as sewerage undertakers, are some of the worst repeat offenders. For matters where private companies are involved and their actions cannot be considered to be public functions, the OEP will have to pursue a body such as the Environment Agency for letting this action take place.
The OEP has noted that enforcement will be targeted to situations where they feel they can ‘most contribute’ to environmental protection, and many of their powers are subject to the seriousness threshold being met.
The definition of what a serious breach is, is not defined within the Environment Act, and whilst this has obvious benefit of allowing the body reviewing the complaints the freedom to set the parameters used to ascertain whether the threshold has been met, it does mean that, at least for now, this threshold remains unclear and is subject to change. Dame Glenys Stacey, Chair of the OEP, has stated that that a ‘sensible definition’ of serious will be decided by the OEP’s board.
The OEP are taking a just because we can, does not mean we will approach to using their enforcement powers, especially with the most serious of these. Whilst a careful approach is welcome as it will allow the organisation to really unpack why such actions, or lack thereof, are taking place, the OEP must be careful to not allow serial offenders and non-compliers to repeatedly offend. It must be clear to public authorities that infringing behaviour will not be tolerated, and instil public faith that the process of trying to achieve action through cooperative mean will not be drawn out for such time that the process becomes stagnant and the OEP’s aims are not achieved.
Question marks have been raised over the OEP’s independence, given that its non-executive members are appointed by the Secretary of State for Environment, Food and Rural Affairs, and the obligation for the OEP to take into account guidance issued by the same. Dame Glenys Stacey has stated that she has ‘very strong reputation of independence’, but it is clear that many concerns lay with the government’s track record rather than Dame Glenys Stacey’s integrity.
Despite the concerns about the government’s reach and the extent to which the OEP will actually use their powers, it is clear that this role is of paramount importance. Its success will quickly become apparent as undoubtably the OEP’s decisions will be scrutinised, but Dame Glenys Stacey is optimistic stating that she wants the OEP to be ‘the best it can be’, that it will be ‘an agile, intelligent, listening organisation, really a wise organisation’ and over time they will ‘make the most difference for the environment that we can’.
Just how much time we have remains to be seen, but on 22 February 2022 you can put your questions to Dame Glenys Stacey when she will be joining BDB Pitmans’ Business Breakfast session.
Register for your place by clicking here.