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.

UK BAT (UK)

Industrial installations undertaking specific types of activity are required to use ‘best available techniques’ (BAT), which means the best economically and technically viable techniques to prevent, minimise and reduce emissions to air, water, and land.

BAT is used to determine the types of abatement technologies and methods that operators should put in place. BAT conclusions describe the best techniques and associated emission levels, which are the basis of the limits placed within environmental permits.

The UK Government, the Scottish Government, the Welsh Government, and the Department of Agriculture, Environment and Rural Affairs (DAERA) are putting in place a new regime for the development of ‘BAT’ across the United Kingdom (UK), following the UK’s exit from the European Union (EU).

Northern Ireland – any ‘Best Available Techniques’ determined in Northern Ireland will need to ensure account is taken of the Northern Ireland Protocol, which requires some specific activities that interact with the Single Electricity Market to continue to align with the EU Industrial Emissions Directive (IED).

BAT was adopted and applied across the European Union (EU) by the European Commission as BAT Conclusions (BATC) under the IED (Directive 2010/75/EU).

Existing EU BATC continue to have effect in the UK through the EU Withdrawal Act 2018. They are available in best available technique reference documents or BREFS.

The UK no longer needs to meet the requirements of new EU BATC issued after 31 Dec 2020.

30 August 2022 – Policy Paper – here.

BATC will be published as statutory instruments and used as the basis for permit conditions for industry.

The UK BAT system will take between 1 to 3 years to create a set of BATC depending on the complexity of the industrial sector. The order of BATC to be reviewed will be announced in advance.

UK BAT will be established by technical working groups (TWG) for the relevant industrial sectors.

The first 4 industry sectors to establish BATC groups will be:

1 Ferrous metal processing – galvanising (FMPG).

2 Ferrous metals processing – forming (FMPF).

3 Textiles (TXT).

4 Waste gas treatment in the chemicals sector (WGC).

The TWG’s will be established from September 2022. It is anticipated that the BATC for the industry sectors above will be published in the second half of 2023.

A new governance structure will also be established, with new independent bodies – called the Standards Council and the Regulators Group – consisting of government officials and expert regulators from all four nations of the UK.

A UK Air Quality Governance Group will also be established to oversee the work of the Standards Council and the delivery of the requirements under this new framework. Interested parties from industry, academia and civil society will be able to engage in the running of the BAT system through an advisory group being set up by the UK BAT Team.

Local councils currently play a major role in regulating industrial installations in England and Wales and have a clear interest in the impact emissions have on the health of local communities and the environment. The new regime will bring local councils into the BAT framework for the first time by involving them in the governance and standard-setting processes.

Some sectors in the UK had already begun a separate review process under the old EU BAT framework. These sectors will complete the BAT process, drawing on UK data submitted to the EU as a starting point, then tailor the BAT to meet UK circumstances.

Environment Act 2021 OEP (England & NI)

Today (17th November 2021) section 22 of the Environment Act 2021 and Schedule 1 which establish the Office for Environmental Protection (“OEP”) as a body corporate are commenced.

Commencement also brings into force today:

* section 23 which defines the OEP’s principal objective when exercising its functions and provides that the OEP must prepare a strategy that sets out how it intends to exercise its functions

* section 24 which sets out the process by which the OEP must publish, revise or review the strategy and how it must consult on it

* section 26 which sets out that the OEP and the Committee on Climate Change must prepare a memorandum of understanding which sets out how the OEP and the Committee intend to co-operate.

In addition, certain terms used in Part 1 of the Act are now in force:

* section 44 (meaning of “natural environment”)

* section 45 (meaning of “environmental protection”)

* section 46 (meaning of “environmental law”)

* section 47, which provides for the interpretation of further terms.

An interim OEP is already established.

Here is the OEP website

Here is the statement from DAERA (Northern Ireland)

CORRECTION : Fuel Duties changes (UK)

The red diesel and biodiesel fuel duty changes (recent blog) are located in the Finance Act 2021, which is enacted but not yet commenced. The blog post is corrected.

There are further changes proposed in the Finance (No 2) Bill. Further information is here.

The changes to the duties on rebated fuels apply from 1 April 2022.

Fuel Duties changes (UK)

CORRECTION : the Finance Act 2021 is enacted. The Finance (No. 2) Bill is being debated. The changes identified below are located in the Finance Act 2021. The text below is amended.

Yesterday 16th November, the government issued information on its proposed changes to fuel duties – here.

The taxation of hydrocarbon oils is regulated by the Hydrocarbon Oil Duties Act 1979 (HODA) and numerous Regulations. It provides a rebate on heavy oils but this rebate is not allowed for any oil that will be used as fuel for a ‘road vehicle’.

Road vehicles not allowed to use red diesel or rebated biodiesel in any circumstances, unless they are ‘excepted vehicles’ as defined in Schedule 1 to the Act. Excepted vehicles include agricultural vehicles and specialist vehicles, such as those used in construction, haulage and some manufacturing.

Biodiesel, bioblends and fuel substitutes are subject to duty if set aside for a chargeable use and rebates are provided for in specified circumstances. Heating is not a chargeable use for these fuels.

The Finance Act 2020 made changes to HODA that are not yet commenced. These relate to private pleasure craft.

The Finance Act 2021 changes HODA (not yet commenced) –

• Only ‘excepted machines’ (new Schedule 1A instead of Schedule 1) will be able to use red diesel and rebated biodiesel.

• Heating will be a chargeable use for biodiesel, bioblends and other fuel substitutes (rebated rates when used in non-commercial heating).

Companies, individuals and civil society organisations that will lose their entitlement to use red diesel will need to switch to white diesel. This will include sectors, for example, such as construction, mining and quarrying, ports, manufacturing (e.g. ceramics, steel, timber), haulage (for transport refrigeration units on lorries), road maintenance, airport operations, oil and gas extraction, plant hire, logistics and waste management.

Environment Act 2021 – summary (UK)

The Act is not yet published, neither is any commencement order, nor any regulation.

The closest text is the text as introduced to the House of Lords – here. Note, Environment is a devolved matter, which means the bulk of the Environment Act 2021 provisions relate to England only.

Key points –

(1) the government must set long-term targets in priority areas for England (and may set other long-term targets) – by regulations – air quality, water, biodiversity, resource efficiency and waste reduction. The government must then review these targets in the context of the significant improvement test in section 6.

(2) the government must publish a statement of environmental principles, to be used in policy making.

(3) the government must publish a report (at specified intervals) on developments in international environmental law.

(4) an Office for Environmental Protection (OEP) must be established in England, to carry out certain scrutiny and advice functions. Schedule 3 deals with the OEP as respects Northern Ireland.

(5) Schedule 4 confers powers to make regulations on producer responsibility, replacing authority in earlier legislation which is revoked. Schedule 5 confers powers to charge for disposal costs.

(6) Schedule 8 confers powers to make regulations to create deposit schemes.

(7) Schedule 9 confers powers to make regulations about charges for single-use plastic items.

(8) the Environmental Protection Act 1990 is amended with provisions about the separate collection of recyclable waste in England – glass, metal, plastic, paper and card, food waste.

(9) the Environmental Protection Act 1990 is amended with updated provisions for hazardous waste in England and Wales.

(10) the Waste and Contaminated Land (Northern Ireland) Order 1997 is amended with updated provisions for hazardous waste.

(11) the Environmental Protection Act 1990 is amended with updated provisions for transfrontier waste shipment.

(12) the government may make regulations to recall vehicles or engines on environmental grounds (section 73).

(13) the Water Resources Act 1991 (applicable England and Wales) is amended to require sewerage undertakers to publish and maintain a drainage and sewerage management plan. These provisions were strengthened slightly following consideration in the House of Lords (final Act text not yet published).

(14) the government (and the relevant authorities in the devolved administrations) may make regulations to change water quality standards.

(15) Schedule 14 provides for biodiversity gain to be a planning condition.

(16) the Natural Environment and Rural Communities Act 2006 section 40 duty to conserve biodiversity (England) is substantively enhanced.

(17) local authorities in England must publish biodiversity reports at specified intervals.

(18) there must be more local nature recovery strategies so that they cover the whole of England.

(19) Natural England is empowered to publish a strategy for improving the conservation status of any species of flora or fauna (a special conservation strategy).

(20) Natural England is empowered to publish a strategy for improving the conservation and management of a protected site (a protected site strategy).

(21) local authorities in England must consult before felling street trees.

Environment Act 2021 (UK)

The long awaited Environment Act 2021 finally received its royal assent on 9th November. The government press release is here.

The document is not yet published, and its provisions will need to be commenced. The detail will be in Regulations, which are not yet available.

I had written extensively when the document was first promulgated, and I will write further blog posts on the subject once the Act is published and we see the provisions that are commenced now.

New Energy Performance Bill (UK)

A new private members’ bill is starting in the House of Lords on 21st July. The bill is titled ‘Minimum Energy Performance of Buildings Bill’. The Bill document is here.

In its policy statements, the Government has said –

• Homes should be Energy Performance Certificate (EPC) band C by 2035 where practicable, cost-effective and affordable

• All Private Rented Sector (PRS) homes should be EPC band C by 2028

• Mortgage lenders should ensure an EPC band C average for their portfolios by 2030

• The Secretary of State to take reasonable steps to assist owner occupiers to achieve EPC band C

• Non-domestic commercial lettings are to achieve EPC band B by 2030

The Bill aims to set these into law.

For a Private Members’ Bill to become law, the government has to support it (in effect take it over).

I will post again if this happens.

A Private Members’ Bill of similar title is also started in the House of Commons (text not available).

Environment Bill (announced additions) (UK)

The long awaited and highly significant Environment Bill is revived in the current Parliament session. I Blog posted earlier that it would be.

The UK government has made 3 announcements in May –

(1) new legal duties on water companies and the government will be inserted to reduce sewage discharged into waterways – announcement is here

(2) a new additional legally binding target for species abundance for 2030 will be inserted – George Eustice Speech is here

Environmental targets in the Bill are summarised in the October 2020 updated August 2020 policy paper – here.

(3) a new power will be taken to refocus the Habitats Regulations – see George Eustice Speech

[The George Eustice Speech also makes further announcements on consultation and strategy publication in the areas of Nature, Peat and Trees.]

The Bill, as we see it now, was originally revived from the previous May Government after the 2019 general election.

In 2020, the majority of the 2019-2020 Bill provisions were substantially the same as its predecessor, although a number of minor technical changes had been made to the drafting. The substantive additions to the Bill (at the start of 2020) were :

• a requirement on Ministers to make a statement to Parliament setting out the effect of new primary environmental legislation on existing levels of environmental protection (Clause 19); and

• a requirement on the Secretary of State to conduct a two-yearly review of the significant developments in international legislation on the environment, and to publish a report on their findings every two years (Clause 20).

The Commons Library analysed the Environment Bill in March 2020 – here.

Most of the Bill extends to England and Wales and applies in England. There are some parts that extend to the whole of the UK or apply to specific UK nations. For example, there are specific provisions on environmental governance, managing waste and water quality that extend and apply to Northern Ireland only. Provisions on waste including producer responsibility, resource efficiency and exporting waste extend and apply to the whole of the UK, as do the provisions on environmental recall of motor vehicles, and the provisions on the regulation of chemicals.

Note – DEFRA has current consultations relating to the Environment Bill –

(1) Consultation on the Draft Policy Statement on Environmental Principles – here.

(2) Consultation on Introducing a Deposit Return Scheme in England, Wales and Northern Ireland (a Deposit Return Scheme is already legislated for in Scotland) – here.

Queen’s Speech 2021 (UK)

The State Opening of Parliament is scheduled to take place on 11 May 2021. Parliament was prorogued on Thursday 29 April 2021, bringing the 2019-21 Session to an end.

The House of Commons Library has a Research Briefing that identifies issues and bills that may appear in the Queen’s Speech on 11 May or that may require legislation in the forthcoming parliamentary session. This Briefing is here.

A number of items to note :

(1) some bills have been subject to carry-over motions, notably –

* the Environment Bill (again)

On 26 January 2021, special arrangements were made to carry-over the Environment Bill 2019-21. Normally bills that are carried over must complete their passage through both Houses in 12 months. The Environment Bill 2019-21 was re-introduced on 30 January 2020 (as a reinstatement of the previous administration’s Environment Bill with some additions, and some deletions). The motion to carry-over the January 2020 bill allowed two years instead of the one year provided for in Standing Orders for the completion of the passage of the Bill. The motion was agreed without a division.

Progress of the Environment Bill can be seen here.

* the Finance (formerly Finance No. 2)) Bill (this contains the landfill tax rates from 1st April 2021 – England and Northern Ireland, the CCL uprating from 1st April 2022, abolition of the carbon emissions tax provision, and provision for the packaging tax from 1st April 2022)

* the Draft Building Safety Bill (published in the 2019-2021 session)

(2) a number of issues are identified as potential subjects for legislation, notably –

* Planning reform in England

The August 2020 White Paper said that the proposed changes would require primary and secondary legislation, as well as updating the National Planning Policy Framework. In response to a parliamentary question in September 2020, the Government said it would “set out any decisions and any associated proposed implementation” in “due course.” A newsletter from MHCLG’s chief planner in December 2020 said that the Government would “publish a response in the Spring setting out its decisions on the proposed way forward including preparing for legislation, should the government so decide, in the Autumn.”

No further detail has been announced.