Environment Bill (published) – Part 5 (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 three Blog posts so far about the first thematic half – one on UK REACH, one on Parts 1&2, and one on the OEP.

(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 5 – Water – includes –

– improving water resources planning, which facilitates collaborative regional planning and considers the needs of all sectors of water users, including the environment;

[in the context of water scarcity in certain locations, although not specifically mentioned, we may need to see the construction of further reservoirs]

– placing on a statutory footing drainage and wastewater planning to assess risks to sewerage networks and network capacity;

– modernising water regulation by reforming elements of the abstraction licensing regime to link it more tightly to the government’s objectives for the water environment;

– enabling updates to be made to the valuation calculations relevant to the apportionment of internal drainage board (IDB) charges in secondary legislation, allowing for the creation of new or expansion of existing IDBs where there is a local desire to do so;

enabling updates to the lists of priority substances that pose a threat to water bodies in line with the latest scientific knowledge, when there are no longer powers under section 2(2) of the European Communities Act 1972.

Clause 79 sets out these powers. Note the consent requirements re the devolved administrations –

– Clause 79 Subsection (4) establishes that the Secretary of State can only exercise the powers in this section to make provision that could be made by the Welsh Ministers or Northern Ireland Department of Agriculture, Environment and Rural Affairs under their own powers in clauses 80 and 81 respectively with their consent.

– Clause 79 Subsection (5) establishes that the Secretary of State cannot exercise the powers in this section to make provisions which would fall within the Scottish Parliament’s devolved competency, given effect by powers under an Act of that Parliament, with the exception of parts of the cross border river basin districts lying in Scotland, where the Secretary of State could exercise the powers to make provisions but only with Scottish Ministers’ consent.

– Clause 79 Subsection (6) establishes the consultation requirements attached to the exercise of the powers. Subsection (6)(b) requires the Secretary of State to consult with Welsh Ministers when making regulations applying to an England and Wales cross-border River Basin District (RBD) that lies in England, and when the Welsh Ministers’ consent is not required under subsection (4). This would mean consultation is only required if the provision being made is only for the English part and does not apply to the part in Wales. Subsection (5)(c) places the same consultation requirements on the Secretary of State in relation to the cross-border RBDs shared with Scotland.

Note –

– Clause 80 confers a regulation, broadly comparable to that in clause 79, on the Welsh Ministers in relation to Wales. Subsection (4) requires consultation with the Natural Resources Body for Wales, other interested persons or bodies, and with the Secretary of State when exercising the power in relation to the Welsh part of a cross-border RBD.

– Clause 81 confers the same power on the Department of Agriculture, Environment and Rural Affairs in relation to Northern Ireland.

—————

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. And see earlier re environmental quality standards and substance lists.

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 5.

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

Environment Bill (the OEP) (England & UK part)

The Environment Bill creates a new Office for Environmental Protection (OEP), in England (with extension to Northern Ireland), I identified this in an earlier post.

This is necessary because Exiting the EU will leave a gap in governance.

The Bill –

– creates a statutory obligation on the Secretary of State, in exercising functions relating to the OEP, for example when making ministerial appointments to the OEP, to have regard to the independence of the OEP

[a Ministerial Statement will confirm the OEP will be given five year ring fenced indicative budget]

– covers climate change – the earlier exclusion of climate legislation is removed

– could consider in scope the spending of other departments on matters that related to environmental law (this is not however, the same, as the EU’s explicit incorporation of the environment in the policy making of all departments)

– envisages and facilitates (via information sharing) cooperation and mandates consultation (on transboundary areas) with any equivalent ‘devolved environmental body’ that is set up in Scotland and Wales

– extends to Northern Ireland (a Schedule in the Bill covers this) if so mandated by a restored Stormont – the Schedule provides for the Chair of such a NI extension to be selected by the Secretary of State for NI and DAERA (the environment department in NI)

– includes ‘environmental review’ enforcement powers in the Upper Tribunal

The OEP will launch to coincide with the IP (Implementation Period) completion day – 31st Dec 2020.

Scotland and Wales have made no announcements re their own bodies.

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) Part 3 (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 3 – the Waste and Resource Efficiency Part of the Environment Bill – includes –

– requiring producers to pay the full net cost of managing their products at end of life to incentivise more sustainable use of resources;

[some of this aligns with EU policy]

– allowing deposit return schemes to be established, whereby a deposit is included in the price of an in-scope item (such as a drink in a bottle or can) which is redeemed when the item is returned to a designated point;

[some EU member states have deposit return schemes, this aspect has been pre-consulted on by DEFRA]

– enabling producer responsibility obligations to be applied at all levels of the waste hierarchy to, for example, facilitate the prevention of food waste and increase the redistribution of food surplus;

[extended producer responsibility is also an EU objective in changes already made to some EU waste law]

– enabling charges to be applied to specified single-use plastic items;

[this aspect has been pre-consulted on by DEFRA]

– requiring local authorities in England to collect the same range of materials for recycling from households;

– ensuring households have a weekly separate food waste collection;

– ensuring businesses and public bodies present recyclable materials for separate collection and arranging for its separate collection;

[some of this is already provided for in existing Law, with regional variants]

– enabling government to set resource efficient product standards and information and labelling requirements, to drive a shift in the market towards durable, repairable and recyclable products;

[I wrote a recent Blog post about changes in EU eco-design law in this area]

– improving proportionality and fairness of litter enforcement, by issuing statutory guidance on the use of enforcement powers and extending an existing power to set out conditions to be met by all those carrying out enforcement activity;

– improving the management of waste, by enabling the Secretary of State to make regulations in relation to waste tracking digitally;

– improving the regulators’ effectiveness in tackling waste crime, reducing the cost of that criminal activity on the wider economy, environment and society;

– allowing the Environment Agency to be more flexible and responsive in managing exempt waste sites and ensure proportionate controls are in place to avoid environmental harm or illegal activity as waste market practices change;

– filling a gap in existing powers to ensure that waste can be collected and disposed of when normal processes fail;

– enabling the Secretary of State to make regulations to amend the permitted range of penalties for existing Fixed Penalty Notices; and

– enabling the Secretary of State to regulate the import, export or transit of waste and hazardous waste.

[Brexit Law makes provision for the international shipment of radioactive waste, shipments of waste to the EU after EU Exit will be subject to EU third country rules, unless new bi-laterals are agreed, or this matter is addressed in the trade deal]

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.

Scotland and Northern Ireland already have Law on food waste. Waste is a devolved matter.

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 3.

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

Environment Bill (UK)

I posted months ago about HMG proposal for a new Environment Bill. There has not been an Environment Bill since 1995.

Progress to date has been weak, and the aspects that were published so far related only to the Governance and Principles aspects.

Today, 23rd July, the DEFRA Secretary has published an updated Policy Statement (of intentions) – here.

Note : Environment is a policy area that is devolved to the regional nations, so the legislative proposals below would apply in England only. Scotland, Wales and Northern Ireland would decide themselves whether and what to follow.

Note : this Statement identifies the Environment Bill will be introduced in the second Parliamentary Session (we are still in the First).

Air quality

(1) Legislation on key measures in the Clean Air Strategy – sharing responsibility for tackling air pollution (across local government structures and with relevant public bodies), plus enabling local government to tackle emissions from domestic burning.

(2) Powers for government to mandate recalls of vehicles and machinery, when they do not meet relevant legal emission standards.

Nature

(3) Nature policy to have a local community focus – a mandatory approach to biodiversity net gain requiring developers to ensure habitats for wildlife are enhanced, with a 10% increase in habitat value for wildlife compared with the pre-development baseline (national infrastructure projects excepted – we will continue to work to establish potential approaches to achieving biodiversity net gains for nationally significant infrastructure projects and marine development, which remain out of scope of biodiversity net gain in the Bill).

(4) Re net gain, planning and the future Environmental Land Management system (replacing agricultural land subsidies) – a new statutory requirement for Local Nature Recovery Strategies. The aim is for these strategies to help to map out important habitats and opportunities for the local environment to be improved, linking communities’ knowledge and priorities with national environmental objectives.

(5) A new duty on local authorities to consult with local communities to ensure that consultation takes place when a street tree is to be felled.

(6) Legislation on conservation covenants – voluntary agreements between a landowner and others (for example, a conservation charity) to help deliver positive local conservation.

Waste

(7) A series of measures that will fundamentally change the way government, businesses and individuals produce and consume products (this will be a big change).

(8) New legal powers to allow government to set resource-efficiency standards for products, driving a shift in the market towards products that are lasting, can be repaired and can be recycled. Plus clear labelling to enable citizens to make fully informed purchasing decisions.

(9) New powers to introduce Extended Producer Responsibility schemes – for packaging, producers will pay the full net cost of dealing with their packaging waste to incentivise recyclability in its design (this is in line with other countries). At the moment, producers currently only pay about 10% of these costs. This will be a fundamental change to the Packaging and Packaging Waste Producer Responsibility Law.

(10) Legislation to modernise the government’s powers to set producer responsibility obligations, extending them to prevention and redistribution of waste, in particular tackling food waste where there is no Legislation in England.

(11) A simplified approach to recycling across local authorities, making it simpler for the public to recycle. A consistent set of materials will need to be collected from all households and businesses in England, with clearer labelling on packaging.

(12) New powers to enable deposit return schemes, particularly dealing with plastic waste. Plus a new power to be able to introduce charges for specified single use plastic items. (Note, there is new EU Law in this area, I posted about recently).

(13) The Litter Strategy commits to review the mechanism by which councils and other land-managers can be held to account for maintaining their land to the standards set out in the Code of Practice. This includes the current section 91 Environment Protection Act process and other options, taking into account the impacts on local authority prioritisation and costs, the court system and the exchequer.

(14) A series of measures unspecified) to improve the management of waste, enabling better use of resources and to reduce the risk of economic, environmental and social harm.

Water

(15) Legislation to strengthen Ofwat’s powers to update water companies’ licences – in particular bringing the way in which water companies appeal Ofwat decisions in line with that for other utility regulators.

(16) New powers to direct water companies to work together on how they will meet current and future demand for water; making planning more robust, even in drought conditions and/or in areas of water stress, for example by working jointly to transfer between catchments when needed.

(17) A new power to enable future updates to a list of harmful chemicals which must be tackled to protect the aquatic environment.

New Air Quality Strategy (England)

DEFRA has today published its new Air Quality Strategy, for England (most aspects of air quality management are devolved matters). This document is here.

Scotland already has its own Air Quality Strategy, information is here. Wales and Northern Ireland are developing theirs.

The England document states :

(1) New legislation will create a stronger and more coherent framework. (This will be contained in the Environment Bill, which is not yet published save for the governance aspects).

(2) New England-wide powers will control major sources of pollution (some aspects listed below).

(3) New local powers will enable action in areas with an air pollution problem, including powers to create Clean Air Zones for all air pollution sources, in the Environment Bill, not just smoke, as exists currently (under the existing Clean Air Act).

(4) A commitment to bring all national and local monitoring data into a single online portal. Currently an online portal, with trigger alerts, exists for the London area.

(5) A commitment to publish a new target for fine particulates PM2.5, and evidence (early in 2019) on the action needed to achieve the WHO target of 10 micrograms per metre cubed. Note, the EU limit of 25 micrograms per metre cubed is met, and the second stage target of 20 micrograms per metre cubed is on target (the document states) for 2020.

(6) A commitment to provide a personal messaging system (see above comment re the London alert system).

(7) A commitment to creating a new target for reducing deposited reactive nitrogen (a target is specified).

(8) New legislation will compel manufacturers to recall non-road mobile machinery for failures in emissions control technology (this legislation is not yet published).

(9) New legislation will ban the sale of the most polluting fuels.

(10) Changes will be made to existing smoke control legislation, via the Environment Bill, to improve enforcement.

(11) Medium combustion plant emission standards will be reviewed.

(12) A National Air Pollution Control Programme will be developed with the devolved governments (as required by the EU National Emissions Ceilings Directive) for publication in 2019.

The above is a selection only, there are further commitments in the document itself.

New National Planning Policy Framework (England)

The long anticipated revision to the National Planning Policy Framework applicable in England has today (24th July) been published, here.

This replaces the 2012 Framework. The planning practice guidance to support the framework is also published online (here).

The Press Release is here.

The viability guidance is also updated – here.