Environmental Outcomes Reports (UK)

Part 5 (clauses 116 to 130) of the Levelling-Up and Regeneration Bill provides for regulations – termed Environmental Outcomes Reports Regulations (EOR Regulations) to be enacted by the Secretary of State to specify outcomes in relation to environmental protection in the UK or a relevant offshore area that are to be “specified environmental outcomes”. The Bill is here, and it is in Committee (House of Commons).

The Bill Explanatory Notes state the EOR Regulations will be subject to public consultation and also the affirmative parliamentary procedure (which requires a positive vote of the UK Parliament) and would (by its own provisions) uphold the non-regression provisions set out in Part 5 (clause 120).

The effect of the EOR Regulations will be not only to specify outcomes relating to environmental protection, but also against these specified environmental outcomes to assess the relevant plans and relevant projects through an Environmental Outcomes Report. As well as assessing against outcomes, an Environmental Outcomes Report must additionally set out and assess the impact of any proposed mitigation or compensation as well as considering reasonable alternatives to the consent or plan, or any element of them. Where an Environmental Outcomes Report is required, this would (by law) be taken into account when considering whether to grant consent or bring a plan into effect.

Essentially the EOR Regulations will take over from the EIA Regulations (for those projects and plans where environmental outcomes reports are mandated).

Bill clause 116 defines environmental protection to be –

(a) protection of the natural environment, cultural heritage and the landscape from the effects of human activity;

(b) protection of people from the effects of human activity on the natural environment, cultural heritage and the landscape;

(c) maintenance, restoration or enhancement of the natural environment, cultural heritage or the landscape;

(d) monitoring, assessing, considering, advising or reporting on anything
in paragraphs (a) to (c).

Before making specified environmental outcomes, Bill clause 116 states the Secretary of State must have regard to the current environmental improvement plan made under Part 1 of the Environment Act 2021 (presently the 25 Year Environment Plan, as none is yet made under the EA 21 Part 1), including the legally binding long-term targets and interim targets that are set under it.

Bill clause 117 provides for an environmental outcomes report to be made for certain consents and certain plans. An environmental outcomes report is a written report.

Further clauses set out powers to be ascribed to these EOR Regulations in relation to consents and plans. Note: the new terms “category 1 consent” and “category 2 consent”.

Bill clause 120 sets out safeguards for non-regression, international obligations and public engagement.

Bill clause 121 deals with interactions with the devolved administrations.

Bill clause 122 addresses exemptions for national defence and civil emergency.

Bill clause 123 sets out sanctions, notably the EOR Regulations may create criminal offences, but not the penalty of imprisonment.

Bill clause 127 addresses the interaction with existing environmental assessment regulations (this is a list of law, including the various existing EIA Regulations) and the existing Habitats Regulations. In particular, the EOR Regulations may disapply aspects of the environmental assessment Regulations or the existing Habitats Regulations where an environmental outcomes report is required.

The existing Habitats Regulations are the source of European Protected Species (and their additional protection from disturbance (animals), and cutting and collecting (plants)) and also European Protected Sites (habitat).

The EOR Regulations may also amend, or revoke the existing environmental assessment regulations.

Agriculture & Fisheries Bills (UK Brexit)

Exit day is Friday (11pm UK time)

The Brexit Agriculture Bill is already published and has a its Second Reading in February. The Brexit Fisheries Bill is being published later today.

The Agriculture Bill relates to England predominantly (and some provisions apply in Wales and Northern Ireland). It mainly deals with agriculture supports (phasing in a new changed basis for these supports that rewards nature and environmental protection), and government collection of data from economic actors in the food supply chain, in England. It enables England, Wales and Northern Ireland to set their own food marketing standards. Separate Agriculture Bills are expected in Scotland, Wales and Northern Ireland.

The Fisheries Bill is [update 30th Jan] publicised by the UK Government – it is not yet in the list of Bills. It sets up a new system for marine and coastal fisheries management, gives new powers to Devolved Governments, and includes a set of UK-wide objectives to manage fisheries stocks sustainably (and a new objective to move towards “climate-smart” fishing in UK waters). It gives new powers to the Marine Management Organisation to give advice and assistance on sustainable fisheries, marine planning, licensing and conservation overseas.

Further Blog posts will be issued on these matters in due course.

Ships Fuel Oil Sulphur (International)

From 1 January 2020, the limit for sulphur in fuel oil used on board ships operating outside designated emission control areas is reduced to 0.50% m/m (mass by mass), down from 3.50% m/m (a limit that was in effect since 1st January 2012).

The rules governing this are the regulations for the Prevention of Air Pollution from Ships (Annex VI) under the international MARPOL Convention. Annex VI seeks to control airborne emissions from ships (sulphur oxides (SOx), nitrogen oxides (NOx), ozone depleting substances (ODS), volatile organic compounds (VOC) and shipboard incineration) and their contribution to local and global air pollution, human health issues and environmental problems.

The date of 1 January 2020 was set in the regulations adopted in 2008. However, a provision was adopted, requiring IMO to review the availability of low sulphur fuel oil for use by ships, to help Member States determine whether the new lower global limit on sulphur emissions from international shipping shall come into effect on 1 January 2020 or be deferred until 1 January 2025. IMO’s Marine Environment Protection Committee (MEPC 70), in October 2016, decided that the 0.50% limit should apply from 1 January 2020.

Further information is found in this useful IMO Q&A – here.

Review of Marine Protection (England)

DEFRA last week announced the designation of 41 more Marine Conservation Zones in English waters.

Today it is announcing a review of whether and how new stronger protections for areas of the sea known as Highly Protected Marine Areas (HPMAs) could be introduced. This review is to be led by Richard Benyon, a Conservative MP and former Environment and Fisheries Minister who has a particular interest in marine fisheries and their protection. The announcement is here.

The new HPMAs would protect vulnerable areas of England’s coastal, inshore and marine waters by closing them off to any human activity with the potential to cause harm.

The Government’s manifesto includes a commitment to create a Blue Belt of marine protection for Britain’s overseas territories and its own coast.

Per DEFRA – targeted HPMAs would complement the existing network of marine conservation zones and allow vulnerable marine wildlife to fully recover, free from all damaging human activities, with the aim of restoring areas to a pristine state.

The UK’s Blue Belt currently spans 220,000 sq km with 128 Marine Conservation Zones including 89 in English waters.

Targeted Highly Protected Marine Areas would complement the existing network of Marine Conservation Zones, and would mark the most significant expansion of England’s ‘Blue Belt’ of protected areas to date, if it happens.

The review will be asked to establish an evidence-based process and criteria for selecting Highly Protected Marine Areas, and if supported by the evidence, recommend potential locations for pilot sites.

The review is supported by Natural England.

The views of those who use the seas will be at the heart of the review, which will over six months consider the economic and social impacts on businesses and individuals who use the sea, taking into account the views of fishermen, conservation groups, marine industries, and local communities. (DEFRA)

Wild-caught Marine Fish (UK Brexit)

Instructions for exporting and importing wild-caught marine fish were issued yesterday. Here.

These instructions are issued by the Marine Management Organisation (MMO) and DEFRA.

Note the forms will be available from gov.uk, and there will be a helpline.

Note the storage document required.

Note these MMO/DEFRA instructions will be updated – so keep a link to the actual page. I will not update my blog post.

Plastic Microbeads in Cosmetics Ban (UK)

UPDATE 3rd August : the 2017 Regulations are now notified to the EU and to the WTO. The EU notification gives detail, and is here. 

A few days ago, the DEFRA Secretary of State confirmed the UK will introduce a ban on plastic microbeads in cosmetics and personal care products. Following consultation, the proposals are summarised :

(1) the ban on manufacture (England) will start 1st Jan 2018 and the ban on sale (England) will start 30th June 2018

(2) precise definitions of “microbead”, “plastic” and “rinse-off personal care product” have been developed to clearly define the scope of the ban

(3) the scope of rinse-off products will be as set out in the consultation, but DEFRA is additionally working with the Hazardous Substances Advisory Committee (HSAC) to assess the case for addressing further categories of products

(4) Trading Standards will be the regulator to manage compliance and enforcement in England

(5) enforcement in England will be carried out through a range of sanctions including variable monetary penalties, compliance notices, stop notices and enforcement undertakings

(6) the Devolved Administrations (Scotland, Wales and Northern Ireland) will consider appropriate enforcement mechanisms, regulators and timescales according to devolution settlements.

The summary of DEFRA responses is here.

Legislation is expected by the end of 2017. This is a UK initiative, and is unconnected with the EU. 

Microbeads New Legislation (UK)

The UK government is consulting, with the objective of new legislation by October 2017, to ban the sale and marketing of cosmetics and personal care products containing microbeads that may harm the marine environment.

Notification of the new legislation will be by email. 

The consultation supporting document (that sets out the detail) is here.