On 9 November 2021, the long-awaited Environment Bill (the “Bill”) finally received royal assent, becoming the Environment Act 2021 (the “Act”). The Act establishes a legal framework for environment governance and the setting of long-term and legally binding targets, plans and policies on a wide range of matters including air quality, biodiversity, water, resource efficiency and waste reduction.
Earlier this year we provided an overview of the Bill, its main features and objectives and the changes to the environmental regime to be introduced to the regulatory landscape in the UK. We consider, below, those areas where significant further changes were introduced.
Independence of the OEP from the government
The Office for Environmental Protection (“OEP”) is a new body established for the purpose of scrutinising environmental law and policy, with certain powers to enforce environmental protection measures and hold public authorities to account in respect of their environmental obligations. The OEP’s independence from government proved to be one of the most difficult issues to reach an agreement on. The House of Lords attempted to delete a provision in the draft Bill allowing the government to issue guidance to the OEP on matters concerning its enforcement policy, and instead give the OEP “complete discretion” in relation to enforcement and budget. The proposed amendments were rejected by the government, but a compromise was agreed whereby the guidance published by the Secretary of State must be laid in draft form before Parliament for discussions and recommendations. Government retains the right to issue guidance to the OEP on the exercise of its enforcement powers, but this will be subject to greater parliamentary scrutiny.
Power of the court to order remedy other than damages for non-compliance with environment laws
The House of Lords tabled a provision allowing the court, on a finding of non-compliance by an authority with environmental legislation, to grant any remedy, which is available in a judicial review other than damages. Earlier versions of the Bill would have restricted the remedy available to compensation. Despite initially resisting the House of Lords’ provision, it was agreed, subject to the following two conditions:
(a) a remedy may only be granted if it would not cause substantial prejudice to the rights of a third party (other than the non-compliant authority) or be detrimental to good administration; or
(b) granting the remedy is necessary to prevent or mitigate serious damage to the environment or human health, and there is an exceptional public interest reason to grant it.
Tackling the discharge of untreated sewage from storm overflows
The House of Lords attempted to mandate sewerage undertakers to “take all reasonable steps” to ensure that such discharges do not occur. The proposed amendment to the Bill was not approved but a compromise was reached requiring sewerage undertakers (operating mainly in England) to ensure “progressive reduction” of the adverse impacts of such discharges on the environment and public health. Additional monitoring and reporting obligations on sewerage undertakers were also introduced, and the Secretary of State is required to report on the actions needed to eliminate such discharges and their respective costs by September 2022.
Charges for single-use items extended beyond plastic
An amendment successfully introduced by the House of Lords (albeit with modifications) related to the powers to make regulations mandating sellers of single-use items to charge consumers for each item sold (including, potentially, a minimum charge). Originally, this provision was intended to cover single-use plastic items only but was extended to “any single use items supplied in connection with goods or services” and, therefore, any single-use material. The amendment applies to Great Britain only and does not cover Northern Ireland, where the scope remains limited to plastic. Nevertheless, this last-minute change could have potentially far-reaching impacts for industry, whose producer responsibility obligations are likely to be significantly increased as a result of the new powers granted by the Act on a wide range of matters aimed at reducing waste and increasing resource efficiency.
The House of Lords put forward a requirement for a new ‘species abundance’ target to be met by 31 December 2030, which was adopted, without pushback, by the government. This comes in the aftermath of the First Phase of COP 15 to the Biodiversity Convention, during which the Kunming Declaration was adopted recognising the call of many countries to halt biodiversity loss by 2030, and is line with the UK’s expected position in the international negotiations at the Second Phase of COP 15 scheduled for April 2022.
House of Lords’ amendments that did not make their way into the Act
Amongst the numerous amendments to the Bill which were not accepted by the government, were provisions to reject any development, which would cause direct loss to ancient woodland or veteran trees except in ‘wholly exceptional’ circumstances. In order to address the concerns raised by the House of Lords in relation to ancient woodland, the government stated that it would take further steps for their protection. Another rejected amendment was the prohibition on the use of pesticides that have significant short or long-term negative effect on the health of honeybees or wild pollinator populations. The government explained that, in its opinion, the existing legislation already sufficiently protects pollinators from the effects of pesticides, a move that has disappointed environmental campaigners.
The Act makes important changes to planning law in relation to development consent orders for nationally significant infrastructure projects as well as to planning permissions generally, with a requirement to demonstrate a biodiversity gain becoming a condition for their granting. Further details can be found here.
Finally, the Act grants powers to make regulations in relation to the establishment of electronic waste tracking in both Great Britain and in Northern Ireland, including the establishment of an electronic system for that purpose (following the closure of the Edoc system earlier in 2021). This is a discretionary power and not a mandatory requirement and allows for a degree of latitude in determining the operational details of the respective electronic systems.
There is hardly an area of environmental law that has not been affected substantially by the Act. The summary provides only a brief overview of the key amendments introduced at the final stages of the legislative process, but the scope of the Act is significantly broader. Whether it will become the “world-leading legislation”, cited by the government remains to be seen. The development of environmental policy, introduction of regulations and the setting of key targets in the forthcoming years will be the real test, as will the pace of change and the enforcement of such measures.