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.