Environment Bill (published) – Part 4 (England & UK Part)

The Bill is here. 130 Clauses in 8 Parts, and 20 Schedules.

The Explanatory Memorandum is here.

The Environment Bill (“the Bill”) is comprised of two thematic halves.

(1) A legal framework for environmental governance once the UK leaves the EU.

This was earlier published in part as the draft Environment (Principles and Governance) Bill on 19 December 2018, fulfilling a legal obligation set out in section 16 of the European Union (Withdrawal) Act 2018. The measures published at that time related only to environmental principles and governance, and placing the government’s 25 Year Environment Plan on a statutory footing.

I posted two Blog posts about this (Brexit) – one on Parts 1&2 and one on the Environment Bill changing UK REACH (Brexit Law).

(2) Provision for specific improvement of the environment, including measures on waste and resource efficiency, air quality and environmental recall, water, nature and biodiversity, and conservation covenants.

SPECIFIC IMPROVEMENT of the ENVIRONMENT

Part 4 – Air Quality and Environmental Recall Part of the Environment Bill – includes –

amending Part IV of the Environment Act 1995 (which creates the Local Air Quality Management Framework) to strengthen the requirements in respect of the National Air Quality Strategy, including a requirement for it to be regularly reviewed;

amending the Local Air Quality Management Framework to clarify duties and enable greater cooperation between different levels of local government, and other relevant public bodies, in the preparation of Local Air Quality Action Plans;

amending Part III of the Clean Air Act 1993 to enable quicker, simpler and more proportionate enforcement of Smoke Control Areas, a key means by which local authorities can control pollution from domestic solid fuel burning;

Specifically – Schedule 13 would amend the Clean Air Act 1993 to give local authorities the power to impose financial penalties for the emission of smoke in smoke control areas (SCAs) in England. This means that the emission of smoke from a chimney of a building or a chimney (not being a chimney of a building) that serves the furnace of any fixed boiler or industrial plant in an SCA in England will change from being a criminal offence to instead being subject to a civil penalty notice (a fine).

The change will remove the current statutory defences that are making enforcement by local authorities very challenging, and reduce the burden and cost associated with enforcing SCAs.

– amending Part III of the Environmental Protection Act 1990 (EPA) to remove the private dwelling exemption (from statutory nuisance enforcement), enabling a local authority in England to pursue somebody who emits smoke from a private dwelling in a Smoke Control Area where it is prejudicial to human health or causing a nuisance.

– removing the limit on the fine for the offence of selling controlled solid fuels for delivery (leaving it to the discretion of the Magistrate’s Court), and creating a new duty on retailers to notify customers of the law regarding the acquisition of controlled solid fuels in England, to help raise consumer awareness and improve compliance.

providing for mandatory recall notices for vehicles and equipment that do not comply with relevant environmental standards and for fines to be issued when a minimum recall rate is not met.

As a Bill, this document would need to pass both Houses of Parliament to enter the statute books. You note, I pegged this as England.

However, some Clauses are intended to have effect outside England – see page 194 of the Explanatory Memorandum which has a table.

If the Bill enters the statute books, the provisions then need to be commenced, some may be commenced immediately, such as those that are needed directly for EU Exit, but there could be a substantive delay in the commencement of other Part, such as Part 4.

I will issue further Blog posts, please look out for them.

Environment Bill (published) Parts 1&2 (UK Brexit)

Exit day is 31st October (this date is set out in a Statutory Instrument)

The Bill is here. 130 Clauses in 8 Parts, and 20 Schedules.

The Explanatory Memorandum is here.

The Environment Bill (“the Bill”) is comprised of two thematic halves.

(1) A legal framework for environmental governance once the UK leaves the EU.

This was earlier published in part as the draft Environment (Principles and Governance) Bill on 19 December 2018, fulfilling a legal obligation set out in section 16 of the European Union (Withdrawal) Act 2018. The measures published at that time related only to environmental principles and governance, and placing the government’s 25 Year Environment Plan on a statutory footing.

(2) Provision for specific improvement of the environment, including measures on waste and resource efficiency, air quality and environmental recall, water, nature and biodiversity, and conservation covenants.

Part 1 – the Environmental Governance Part of the Environment Bill – includes –

– allowing the government to set long-term targets (of at least 15 years duration) in relation to the natural environment and people’s enjoyment of the natural environment via statutory instrument;

– requiring the government to meet long-term targets, and to prepare remedial plans where long-term targets are not met;

– requiring the government to set, by October 2022, at least one long-term target in each of the priority areas of air quality, water, biodiversity, and resource efficiency and waste reduction;

– requiring the government to set and meet an air quality target for fine particulate matter in ambient air (PM2.5);

– requiring the government to periodically review all environmental targets to assess whether meeting them would significantly improve the natural environment in England;

– establishing the process by which a long-term target is set and amended, as well as an enhanced process where a long-term target is lowered or revoked;

– requiring the government to have, and maintain, an Environmental Improvement Plan, a plan to significantly improve the natural environment, which sets out the steps the government intends to take to improve the natural environment, and which sets out interim targets towards meeting the long-term targets;

– requiring the government to produce an annual report on the Environmental Improvement Plan, to consider progress towards improving the natural environment and meeting the targets;

– requiring the government to review the plan periodically, to consider progress and whether further or different steps are needed to improve the natural environment and meet the targets, and if appropriate revise the plan;

– requiring the government to collect and publish data used to measure progress in improving the natural environment and meeting the targets;

– requiring the publication of a policy statement on environmental principles setting out how environmental principles specified under the Bill are to be interpreted and applied by Ministers of the Crown during the policymaking process;

creating a new, statutory and independent environmental body, the Office for Environmental Protection (OEP), to hold government to account on environmental law and its Environmental Improvement Plan once the UK leaves the EU;

– defining the scrutiny, complaints and enforcement functions of the OEP and their scope;

– establishing an OEP enforcement process of environmental review in the Upper Tribunal; and

– defining the nature of the OEP, including considerations of membership, remuneration, staffing, powers, reporting, funding, accounts and other issues.

Part 2 – the Environmental Governance: Northern Ireland Part of the Environment Bill – includes –

– extending the application of the OEP to Northern Ireland, and making separate provision for Environmental Improvement Plans and environmental principles in Northern Ireland.

Delegated Powers Statement is here. [Environment is a delegated responsibility in the UK]

The delegated powers in the Bill fall into five thematic categories.

(1) there are powers that are needed as a result of the UK leaving the EU;

(2) there are provisions which modify, or are based upon, existing delegated powers;

(3) there are provisions which create new delegated powers to give effect to new environmental policy;

(4) there are powers for devolved administration ministers to make equivalent provision to UK Ministers;

(5) there are general provisions which are required for the Bill to have effect.

Provisions falling into the first category are intended to avoid a governance gap and to ensure the government can deliver on its environmental ambition when the UK leaves the EU.

All of the powers in Parts 1 and 2, plus six other powers fall into this category, as below:

– Existing environmental targets are largely derived from EU law and when the UK leaves the EU it may wish to set its own targets that differ and go beyond those of the EU that will have been retained for the time being in domestic law.

– Clauses 1 and 2 provide for regulations to set targets for matters relating to improving the natural environment or people’s enjoyment of it, and an air quality target in respect of the pollutant fine particulate matter (“PM2.5”).

– Environmental principles are reflected in various international instruments and are set out in the EU treaties. However, a clear articulation of these principles has never been laid out clearly at a national level. The Environment Bill will change this through requiring the publication of a statutory policy statement (clause 16) on the interpretation and proportionate application of the principles, to which Ministers will have a duty to have due regard when making policy. (This is not a delegated legislative power but it is included in Annex A. Northern Ireland has the same power in paragraph 6 of Schedule 2.)

– Clause 40(5) would allow the Secretary of State to set out in secondary legislation which legislative provisions come within the definition of “environmental law”, if required, in order to ensure that there is clarity about the scope of that definition (which in turn will define the scope of the OEP’s enforcement function). Northern Ireland would have the same power in paragraph 18(6) of Schedule 3. The aim of this power is to provide certainty to the OEP, public authorities and the public about the OEP’s remit, in the unlikely case that uncertainty cannot be resolved by other means.

– A number of regulation-making powers (clauses 56, 58, 79-81, 122 and Schedule 20) allow Ministers to make changes in relation to regulations made under section 2(2) European Communities Act 1972. This will, for example, ensure that the lists of priority substances for surface waters and groundwater and their environmental quality standards do not remain fixed and therefore potentially out of date or unsuitable for domestic conditions after the UK has withdrawn from the EU. Tying the UK’s standards to those set historically in the EU could increase risks to the water environment. A further example is a power that would ensure the regulation of international waste shipments can respond to the changes in the methods and practices of those engaged in illegal waste shipment activity.

Further Blog posts will cover the other parts of this important Bill.

Deposit Return System (DRS) for Bottles and Cans (England & Wales)

Exit day is 31st October 2019

HMG announce today they will bring in a DRS for drinks containers (bottles and cans) in England and Wales via the Environment Bill.

Here

The cost of the deposit would be added to the price of the drinks included in the scheme when they are purchased. This deposit would be redeemed when consumers return their empty drinks containers to a designated return point.

HMG intend the proposed scope and model of the deposit return scheme to be consulted on in 2020, with the scheme to start no later than 2023.

Statement on UK Politics

The Environmental Bill is queued after various Brexit bills. HMG has a majority of only one in Parliament. None of the Brexit bills are announced for Parliament time. 2023 is beyond the date when a General Election would be held under the Fixed-term Parliaments Act 2011.

F-gases Rules (UK Brexit)

Exit day is 31st October 2019

F-gases are regulated by EU Law.

DEFRA issued today clarifying rules on F-gases.

(1) Recovering, reclaiming and recycling F gas – here.

(2) Recording F gas in equipment you own or service – here.

IF these have an impact on ENV Law Checklists, then the Checklists will be updated, and subscribers to EHS Legislation Registers and Checklists will be notified in the next Email Alert.

Subscribers will note that the Brexit Consolidated Law List (found at the top right of the ENV and OHS Registers home page) has F-gases laws identified as HTML Done (green text) (meaning the changes are now incorporated, and linked from that list).

National Food Strategy – call for evidence (UK England)

Exit day is 31st October.

Today HMG announced a call for evidence to help build a new National Food Strategy for England. Closing date is 25th October 2019.

On 27 June, Defra’s Secretary of State commissioned Henry Dimbleby to conduct an independent review to help HMG create a new National Food Strategy for England (the last one dates 75 years ago).

The purpose of the review is to address the environmental and health problems caused by the food system, to ensure the security of food supply, and to maximise the benefits of emerging agricultural technology.

The terms of reference for the Review is here.

A separate National Food Strategy onsite site has been created and this is the page on that site about the engagement – here.

The online address of the National Food Strategy site is here.

The Review will be published Summer 2020.

The Call for Evidence Closing Date is 25th October 2019 and see the Programme of Engagement on the National Food Strategy site here.

HMG stated it will publish a summary of responses 12 weeks after the consultation closes.

The Call for Evidence is accessed here (and from the National Food Strategy site).

This is a wide ranging exercise, covering obesity, food security, land management, fishing, animal welfare.

The National Food Strategy will examine activity across several departments of state, and build on the Brexit Agriculture and Fisheries Bills, the Industrial Strategy, the Childhood Obesity Plan and the proposed Environment Bill.

Statement about the UK Political Situation (this Blog does not post about Politics, this Statement is now added to Posts where the political situation could alter the content, timing or otherwise affect, the Post itself).

(1) HMG has a majority of one.

(2) Steps are being discussed by Opposition Parties and some backbenchers to prevent a No Deal, in September.

Instructions to Local Governments (UK Brexit)

Exit day is 31st October 2019.

HMG issued today a compilation of Instructions applicable to Local Authorities.

Here.

Local authorities have relevant (to this Blog) functions, and the Instructions sign post to other Instructions issued –

* UK Product Safety and Metrology Guidance in a ‘no deal’ scenario – here (dated 25th March – a Blog post exists already about this)

* Food labelling changes if there’s a no-deal Brexit – here (dated 25th February)

* Health marks on meat, fish and dairy products here (accessed from online compilation dated 7th August – focus on the No Deal instructions)

* Importing high-risk food and animal feedhere (dated 10th April)

* Exporting GM food and animal feed products if there’s no Brexit Deal – here (dated 11th April)

* Importing, exporting and transporting products or goods after Brexithere (dated 22nd February)

* Find a professional to certify export health certificateshere (dated 11th June)

* Importing and exporting waste if there’s no Brexit dealhere (dated 3rd June)

[The UK government has secured an agreement that all UK consents for shipments of notifiable waste that go beyond 31 October 2019 will be rolled over.]

List of Brexit Law applicable to local authorities – here.

Some of these are listed in Cardinal Brexit Law List and are in the midst of being processed into the base law.