Following the announcement of the government’s Environment Bill on 30 January, many observers in the environmental arena reflected on the ambition and likely efficacy of the legislation, while highlighting areas of concern and suggested improvement. Envirotec reports
Intended to fill the legislative vacuum left by the UK’s departure from the EU on 31 January, the Environment Bill has been eagerly anticipated, and seemingly gives government the power to set legally binding targets on all aspects of the environment in future.
The Bill was originally introduced in draft format at the end of 2018, before being presented to parliament in October 2019, but its publication was delayed until after the General Election.
Broadly, its intention was announced on 30 January as to “ensure the environment is at the heart of all government policy making and that this government – and future governments – are held to account if they fail to uphold their environmental duties”. These duties include commitments to achieving net-zero by 2050 and other long-term targets on biodiversity, air quality, water, and resource efficiency and waste management.
Two new aspects to the bill, which were announced on 30 January, include measures to stop the UK exporting plastic to foreign countries, and a new pledge to “conduct a review every two years of significant developments in international legislation on the environment”, with the aim of staying “abreast of developments” in relation to legislation elsewhere in the world.
But while Environment Secretary Theresa Villiers announced it as setting “a gold standard” for improving environmental performance in a collection of areas, many commentators voiced concerns at the seeming lack of binding targets, and wondered how specific standards would be enforced.
The Bill establishes a new “independent watchdog”, the Office for Environmental Protection (OEP), to fulfil this role, and it will seemingly hold the government to account on long-term, legally-binding targets in relation to biodiversity, air quality, water and waste management as well as its commitment to reach net zero emissions by 2050. But without the power to impose financial penalties (as does the European Commission), there were concerns over its likely efficacy. Speaking to The Guardian, Ruth Chambers of the Greener UK coalition referred to “ongoing concerns” about the fact that the OEP’s budget and board will be decided at ministerial level, and that we might end up with “weaker legal status for environmental principles”.
The new process of reviewing international legislation every two years, “cannot and should not be seen as a substitute” for the high levels of environmental protection we have had as a member of the EU, she told the newspaper.
One of the areas where enforcement seemed a particular concern is with air quality, an area where recent governments have repeatedly failed to uphold the standards set by the EU. Before publication the Bill had promised a legally binding target on PM2.5 particulate matter in line with WHO guidelines, but the bill itself includes only a commitment to set a target before 31 October 2022.
Similarly, nothing was mentioned about NO2, or what new powers might be granted to local authorities to strengthen their ability to enforce air pollution standards – something that had also been promised prior to the Bill’s publication.
ClientEarth lawyer Katie Nield decried the fact that there was “no legally binding commitment to meet WHO air pollution standards by 2030 in the Bill.”
“Despite warm words and promises to listen to health professionals and worried parents,” she said, “when it comes to the crunch, they have chosen to let the public down.”
“Without ambitious legally binding targets and clear duties to back them up, ministers, local authorities and public bodies will continue to drag their feet on this public health crisis. This is a missed opportunity by the new government to put people first and drive the clean growth that would make the UK a world leader.”
Professor Stephen Holgate, a Special Adviser on Air Quality with the Royal College of Physicians said the Bill “can’t afford to tinker at the edges”. He continued: “We need this government to commit to legally enforceable targets for fine particulate matter (PM2.5) in line with the World Health Organization’s (WHO) guidelines.”
Soil and biodiversity
Similarly with the land, and areas like soil quality and pesticide use, the bill does not at present propose to issue penalties if certain standards are not upheld. The UK Soil Association’s Gareth Morgan bemoanded “a gaping hole in the Environment Bill where soil restoration should be”. His group wanted to see “binding targets for soil recovery and effective ways to ensure soil health is monitored and prioritised.”
“After concerted lobbying, we were delighted to see soil recognised in the Agriculture Bill, but given that it has huge capability to lock up carbon, and the government itself reports that soil degradation is costing the UK £1.2bn annually, soil should also be at the heart of this bill.”
As reported in Farmer’s Guardian following the Bill’s announcement, farm groups such as the NFU and CLA also seem to be concerned about a dis-jointedness in the way the two pieces of legislation interact. Speaking to the paper the NFU’s Phil Jarvis said the government needed to do more to recognise that “food production and land management policies must go hand in hand,” where measures to protect the environment must be joined up with policies to “policies which support farming’s ability to improve productivity and manage volatility”.
Furthermore, the Soil Association said: “There needs to be a target on the reduction of pesticide use”, an “essential” element “if we’re to reverse the huge decline in insects and biodiversity”. A statement also called for more trees to be planted on farms and that this was “crucial to increasing wildlife, improving soil health and animal welfare whilst also combatting climate change.”
The Bill appears to enshrine the concept of “biodiversity net gain”, whereby construction work and other developments must offset any loss or disturbance to the natural world by restoration work, or work conducted elsewhere, such as tree planting. The provision was welcomed by the EA’s Emma Howard Boyd, speaking on 6 February at a Westminster event. “Legislating to mandate biodiversity net gain is welcome and we believe it can be a stepping stone to a longer term ambition of Environmental Net Gain.”
However, she added: “As always, with all these provisions, the devil will be in the detail”, but she said she looked forward “to working with Defra to make sure we have the resources required to fulfil the ambitions set out in the Bill.”
Plastic waste ban: A red herring?
One measure the Bill promises to enshrine in law is a new commitment to ban the export of plastic waste to developing countries, a problem that has become more acute following China’s decision to stop receiving plastic waste from abroad. Simon Ellin, the head of the Recycling Association said he was “concerned” at this aspect of the Bill.
“There are already strict rules in place on recycled plastic exports via the Basel Convention and the rules that the countries importing the plastics have introduced.”
“What we need is better enforcement of those regulations by funding the UK environment agencies sufficiently to catch those who are breaking the rules. Those who trade legitimately should not be penalised by the actions of a few bad apples.” He said this was why The Recycling Association has been investing in blockchain technology “to track all exports to compliant, and audited end destinations.”
Working with business
Legislation and its enforcement are obviously of central importance, “but good regulation also involves collaboration”, as the EA’s Emma Jane Howard noted in her 6 February speech, “helping those we regulate perform better to achieve better outcomes for the environment.”
“By focussing on the ‘what’ – the standards we want to achieve – rather than a prescriptive ‘how’, good regulation creates the space for businesses to innovate, and innovate in the right way.”
In a 7 February statement, IEMA identified a number of “targeted changes” that it said would “significantly increase the ability of businesses and local communities to make systemic improvements in our environment.” These included the introduction of objectives “to bind the Bill’s policy and governance processes into a commonly understood direction, giving the economy a consistent long-term view about how to align investment and activities.”
IEMA also wants to see “transparent criteria and processes for setting targets and interim targets” to ensure policies meet their intended targets. There also needs to be greater provision, suggested the group, in enabling “consistent local environmental planning and prioritisation towards the targets”, and that this is important in ensuring “the economy has a shared view of how to plan, invest and collaborate to improve the environment locally.”
The Institute of Materials, Minerals and Mining (IOM3) CEO Colin Church said that while “there is much to like about the Bill”, “the independence of the new OEP needs to be strengthened and there is work to do in the target setting process.”
Despite the many apparent weaknesses or caveats at this point, there seemed to be widespread appreciation that the Bill “aims to put environmental thinking at the heart of policy making”, as the EA’s Emma Howard Boyd put it. “Environmental issues should never be seen as a nice to do, a cherry on top – they should be baked into government decision making.” She said she looked forward to “responding to the consultation on the policy statement on environmental principles to make sure the Bill achieves these aims.”