Where are we with the much-delayed UK Environment Bill?

A report by Victor S Ient, Volunteer Organiser, South Downs Network

The Environment Bill 2019-21 has completed its Committee Stage, Report Stage and Third Reading in the House of Commons. CLICK HERE to see the House of Commons update on the status of the bill. This link summarises what happened in the various stages of the Bill’s progress through Parliament and how the Bill has changed. It describes key Government and Opposition amendments. The Bill is now on its third reading in the House of Lords.

The Environment Bill was debated on Monday 28 June 2021 in the Lords Committee stage (3rd Day). The debate was opened by Baroness Jones of Moulsecoomb (Green Party) and followed by Baroness Parminter (Liberal Democrat). These and other amendments were debated until 10pm when the house was adjourned. In the Lords the Bill has had its 1st reading and its 2nd reading. It is now at the Committee stage. Then there will be the Report stage and 3rd reading. Then it goes to the Commons for its Final stage’s consideration of amendments and Royal Assent.

The Government says the main purposes of the Bill are to: Transform our environmental governance once we leave the EU by putting environmental principles into law; introducing legally binding targets; and establishing a new Office for Environmental Protection. Increase local powers to tackle sources of air pollution. The Government says the main purposes of the Bill are to:

• Transform our environmental governance once we leave the EU by putting environmental principles into law; introducing legally binding targets; and establishing a new Office for Environmental Protection.
• Increase local powers to tackle sources of air pollution.
• Protect nature and improve biodiversity by working with developers.
• Extend producer responsibility, ensure a consistent approach to recycling, introduce deposit return schemes, and introduce charges for specified single use plastic items.
• Secure long-term, resilient water and wastewater services, including through powers to direct water companies to work together to meet current and future demand.

Several Government amendments and new clauses were accepted during the Committee Stage. Some of them related to the establishment and functions of the Office for Environmental Protection (OEP). The Government argued that these amendments would bring greater clarity about the OEP’s role and consistency with other legal mechanisms. These included:

• Clarifying of the remit between the OEP and the Committee on Climate Change, aiming of ensuring no duplication of work, through the production of a memorandum of understanding;
• Clarification of the threshold for when an environmental review can be initiated by the OEP;
• Changing the new environmental review process from being held in the upper tribunal to the High Court;
• Limiting the OEP’s powers to intervene in judicial review proceedings to “serious” cases;
• Limiting the OEP’s powers to initiate judicial review proceedings to “urgent” cases; and
• A new power for the Secretary of State to issue guidance to the OEP on matters concerning its enforcement policy.

New Government clauses will provide powers for Natural England (the government’s adviser for the natural environment in England), to implement species conservation and protected site conservation strategies, and changes to how wildlife conservation licences are granted.

The Government also introduced a new clause on the use of “forest risk commodities” in commercial activities, aiming to reduce deforestation caused by agriculture. This means, businesses will be prohibited from using such commodities produced on land that was illegally occupied or used. Examples include soya, palm oil, and cocoa. Businesses will be required to create a due diligence system for regulated commodities to ensure their supply chains do not support illegal deforestation and will have to report annually. If businesses do not comply, they would be subject to fines.

Many Opposition amendments were put forward but defeated. These included aims to:

• Enshrine World Health Organization air quality targets on particulate matter on the face of the Bill;
• Remove the exemptions from the need to have due regard to the new policy statement on environmental principles;
• Ensure greater independence for the OEP in its budget setting and appointment of its chair;
• Widen the definition of “natural environment” in the Bill to include the historic environment;
• Require manufacturers, processers, distributors and suppliers of packaging to contribute to the “social costs” (and not just to disposal costs), incurred throughout the lifecycle of the products or materials;
• Require an assessment on water quality and the impact of discharge in drainage and sewerage management plans;
• Set the new requirement for development of a 10% biodiversity gain as a minimum; and
• Ensure that the starting regulatory framework for UK REACH was as close as possible to EU REACH and did not “regress from what there was before”.

The Opposition also moved a number of new clauses which were pushed to division across a range of policy areas, including: non-regression of environmental standards, fracking, a clean air duty, smoking related litter, the waste hierarchy, environmental and human rights due diligence, reservoirs and flood risk, a state of nature target and reduction of lead poisoning from shot. None of these were added to the Bill.

Back in January 2021, only Government amendments were added to Bill. They included:

• Clarification that the English inshore and offshore region will be covered by the ‘significant improvement test’. This relates to reviews of the environmental targets that the Bill will establish. The test is met where the Secretary of State considers that meeting the targets will bring about a significant improvement in the natural environment. The first significant improvement test review will be by 31 January 2023.
• A series of amendments intended to align the clauses relating to the Office for Environmental Protection’s Northern Ireland enforcement functions with the equivalent provisions for England (that were amended previously at Committee Stage). In the debate, Rebecca Pow said that these amendments were personally requested by Northern Ireland Ministers.

In May 2021, two new clauses were added to the Bill. They relate to a Government announcement that it intends to set a new biodiversity target and provide powers to amend the Habitats Regulations. Also, in May the Government plans for amendment of the Bill were announced in the Queen’s Speech.

In the background briefing notes of the Queen’s Speech 2021, the Government announced plans to further amend the Bill. This included proposals to introduce new duties requiring the Government to publish a plan to reduce sewage discharges from storm overflows by September 2022 and report to Parliament the progress of implementing the plan. These amendments are expected to be tabled during the Bill’s stages in the House of Lords.

In June 2021 the Government confirmed that it intends to amend the Bill to set requirements for biodiversity net gain for New Nationally Significant Infrastructure Projects in England. Nationally Significant Infrastructure Projects are large scale developments (relating to energy, transport, water, or waste) which require a type of consent known as “development consent”.

COMMENT

Greener UK and the Wildlife & Countryside Link

Greener UK and the Wildlife & Countryside Link have raised concerns about the independence of the Office for Environmental Protection (OEP).

Wildlife & Countryside Link (whose members include CPRE The Countryside Charity and the Wildlife Trusts)  have welcomed the Government response to the Dasgupta Review that committed to delivering a “nature positive” future, in which we “leave the environment in a better state than we found it, and ensure economic and financial decision-making is geared towards delivering that”.  They are please that the Environment Bill will apply Biodiversity Net Gain, a new planning condition requiring developers to achieve at least a 10% uplift in biodiversity through their development, to Nationally Significant Infrastructure Projects. However, there is still concern about the scope of the clause. They believe it should cover all major infrastructure projects, such as the hybrid bills, which delivered Crossrail and HS2, and any future new consent mechanism. Wildlife & Countryside Link response to the Dasgupta Review calls for a fundamental reform of the Treasury that puts nature at the heart of economic decisions. CLICK HERE to read more.

Chartered Institution of Water and Environmental Management (CIWEM)

Heather Gardner (@HeatherG_policy ) Policy adviser The Chartered Institution of Water and Environmental Management (CIWEM) reports on five things you need to know about the Environment Bill. Here is a summary of the points CIWEM make:

1. What’s new since the previous Environment Bill: two significant new sections.

Along with many other green groups, CIWEM advocated for a commitment to non-regression on environmental standards after leaving the EU. The new Bill does include provisions almost to this effect, but not in so many words. There is also a new requirement for the Secretary of State to make a statement on any new Bill that would constitute environmental law, saying whether or not it will reduce the existing level of environmental protection under existing law. These two provisions combine to put scrutiny on the Secretary of State if the UK were weakening environmental protection or lowering environmental standards, but there is no recourse or consequence were this to be so.

2. The new watchdog still lacks teeth

The Office for Environmental Protection (OEP), which will replace the scrutiny and enforcement functions previously provided by the European Union, will hold the government and public bodies to account on its implementation of environmental law. However, we previously called for increased independence for the OEP, and unfortunately this is still lacking. The OEP will be an instrument of government, with its budget set by the Secretary of State, who will also appoint its Chair and non-executives.

3. Long-term environmental targets will be legally-binding:

The Bill requires the Secretary of State to set at least one long-term target (at least 15 years) for each of the following priority areas:

• Air quality;
• Water;
• Biodiversity;
• Resource efficiency and waste reduction.

In addition to these priority areas, the Secretary of State must set a target for PM2.5 in ambient air before 31st October 2022, but the Bill falls short of requiring the target to be in line with World Health Organisation guidelines by 2030, as had been widely expected. The targets set will be legally-binding on the Secretary of State, and be reviewed by 31st January 2023, and then every five years thereafter.

4. Loopholes on the environmental principles remain:

The environmental principles in EU law have led to long-term environmental improvement over recent decades, particularly in water and air quality, and enshrining them in UK is crucial to the future enhancement of our natural environment. We were previously concerned by the language of the Bill regarding the requirement of Ministers of the Crown to “have regard to” the policy statement on the environmental principles when making decisions. The newly published Bill requires Ministers to “have due regard” to them, which is somewhat improved, but not quite the “act in accordance” with that we and the industry were calling for.

5. 25 Year Environment Plan on a statutory footing:

As previously, the Bill includes a requirement for 15-year Environmental Improvement Plans (EIP), with the 25 Year Environment Plan to be the first such plan. CIWEM welcome the new requirement for all public bodies to have regard to the conservation and enhancement of biodiversity under the 2006 NERC Act.

Government exploiting nature more than it is protecting it, MPs warn. A damning report by MPs has described government policy designed to tackle runaway biodiversity loss as “inadequate”, “not joined up” and “not on track to improve the environment within a generation”.

Environmental Audit Committee (EAC) urges the government to take biodiversity loss as seriously as the climate crisis

On 30th June 2021 The Independent reported that The Environmental Audit Committee (EAC) said it is urging the government to take biodiversity loss as seriously as the climate crisis , and said it had “grave” concerns about progress, with the UK having the lowest level of biodiversity remaining among any of the G7 countries. A damning report by MPs has described government policy designed to tackle runaway biodiversity loss as “inadequate”, “not joined up” and “not on track to improve the environment within a generation”. The Environmental Audit Committee (EAC) said it is urging the government to take biodiversity loss as seriously as the climate crisis , and said it had “grave” concerns about progress, with the UK having the lowest level of biodiversity remaining among any of the G7 countries.