85: Brexit: Environment Bill 2019-21 (PART 2) – Mercy Mercy Me (The Ecology)

Aaron Nelson Legal Director

Following on from the last Blog Post (84), we continue to look at the draft provisions of the Environment Bill.

A new regulator – Office of Environmental Protection

The Bill establishes the Office of Environmental Protection (OEP), intended to be a ‘world-leading, independent environmental watchdog’ responsible for taking action in relation to breaches of environmental law.

The OEP’s specific duties include to:

act objectively and impartially;
prepare a strategy in relation to exercise of functions including enforcement policy;
monitor/report to SoS on environmental improvement plans/targets and environmental law and advise on any changes; and
enforcement in relation to breaches of environmental law.

The OEP:

must handle complaints made by any person in respect of a public authority breach of environmental law;
may investigate a complaint;
may serve a public authority with an information notice where it has reasonable grounds for suspecting a serious breach;
may issue a public authority with a decision notice if satisfied on the balance of probability of a serious breach; and
may apply to court for an environmental review(Judicial Review principles apply including remedies but there is no provision for awarding damages).

The OEP has some important and promising functions, however, it is not entirely clear how it will perform all these functions. Specifically, it is unclear whether the OEP will set up a programme for reviewing certain areas of the law or whether it will instead be responsive to issues as they are raised or become relevant.

Also, the lack of power to award damages, makes it a rather timid watchdog, with a loud bark but no teeth. Another concern is the lack of independence of the OEP. The SoS is responsible for appointing non-executive Board members of the OEP, the budget and many of the powers are discretionary.

Waste and resource efficiency provisions

Part 3 of the Bill provides the legislative framework for delivery of the Resources and Waste Strategy. It also:

allows government to extend producer responsibility to require producers to pay the full net cost of managing their produce at the end of life in order to incentivise producers to design their products with sustainability in mind;
enables resource efficiency standards to be set for non-energy-related products;
allows for clear labelling to enable consumers to identify products that are more durable and recyclable; and
allows electronic waste tracking to help prevent waste crime and improves litter enforcement.

Overall, the Bill contains some welcome signs of a more progressive approach to the problems of waste and resource management. It also includes a power to enable the government to ban or restrict the export of plastic to countries that are not members of the Organisation for Economic Cooperation and Development.

Air quality and environmental recall

In addition to the environmental target for PM2.5 in ambient air touched on in the last blog post, the Bill also includes:

a new duty on the SoS to review the Air Quality Strategy at least every five years, and to report annually to Parliament on progress;
stronger requirements for local authorities under the Local Air Quality Management framework;
new powers for local authorities to impose civil penalty notices for the emission of smoke in smoke control areas in England; and
powers are also given to the SoS to make regulations for the recall of relevant products that do not meet relevant legal emission standards.

Water

Part 5 of the Bill sets out provisions seeking to secure long-term, resilient water and wastewater services. It includes:

amendments to the Water Industry Act 1991, specifically duties of water undertakers in relation to water resources management plans;
a new power for the SoS to instruct water undertakers to prepare joint proposals identifying how the undertakers can work together to improve the management of water resources;
a new duty on sewerage undertakers to prepare drainage and sewerage management plans;
stronger information-gathering powers for Ofwat; and
changes in relation to variation and revocation of water abstraction licences.

Biodiversity

The Bill is intended to provide a framework of measures to support ‘nature’s recovery’ and contains provision for the following:

a 10% biodiversity net gain requirement on new development;
a strengthened biodiversity duty on public authorities; and
conservation covenants – a new statutory scheme to allow for private, voluntary agreements made between a landowner and a conservation body to secure conservation measures relating to the land which endure changes in ownership.

Overall the Bill seems to be a step in the right direction, although the current delays are far from ideal. To what extent it can guarantee Green Brexit and deliver robust and comprehensive environmental protections remains to be seen.