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.

EU Drinking Water Directive (EU)

The current Drinking Water Directive 98/83/EC last amended in 2015, is replaced by a new Drinking Water Directive (EU) 2020/2184 in force 12th January 2021. Member states have two years to bring in national legislation. We will add this Directive to Cardinal EHS Legislation Registers &a Checklists shortly.

The new EU Drinking Water Directive is here.

Key features of the revised Directive are:

• Reinforced water quality standards which are more stringent than WHO recommendations.

• Tackling emerging pollutants, such as endocrine disruptors and PFA’s, as well as microplastics – for which harmonised analytical methods will be developed in 2021.

• A preventive approach favouring actions to reduce pollution at source by introducing the “risk based approach”. This is based on an in-depth analysis of the whole water cycle, from source to distribution.

• Measures to ensure better access to water, particularly for vulnerable and marginalised groups.

• Measures to promote tap water, including in public spaces and restaurants, to reduce (plastic) bottle consumption.

• Harmonisation of the quality standards for materials and products in contact with water, including a reinforcement of the limit values for lead. This will be regulated at EU level with the support of the European Chemicals Agency (ECHA).

• Measures to reduce water leakages and to increase transparency of the sector.

COVID-19 EA Regulatory Position Statements (England)

I posted before about the Environment Agency’s Regulatory Position Statements (RPS), and the fact that the Agency is publishing RPS for the COVID-19 crisis.

Yesterday 21st April, the EA has issued further COVID-19 RPS. Here

You will note there are now quite a few of them.

COVID-19 Environment Agency (England)

The Environment Agency (EA) issues Regulatory Position Statements (RPSs). These explain the situations and conditions when an environmental permit is not required.

The EA issued temporary RPSs last year in the run up to the Brexit Exit days.

The EA has now issued 3 temporary RPSs to deal with COVID-19 – here.

Two address waste issues, and one deals with water sampling.

The exceeding waste storage limits RPS is similar to the temporary Brexit RPS that was issued last year.

The full list of EA Regulatory Position Statements is – here.

Environment Bill (England & UK Brexit)

The Environment Bill returns to the Commons for Second Reading today. It is a slightly different Bill to 2019. Please reprise the posts I wrote in 2019, I summarise the changes (from those posts) below – I had got as far as Water – please find those posts in the Environment Bill category on this blog.

Targets (unchanged from 2019 Bill) – reprising because I didn’t set these out before – England only (targets are within the competencies of devolved legislatures)

– allow 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;

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

– require 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;

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

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

Note Clause 20 – Clause 20: Reports on international environmental protection legislation (this is unchanged from 2019 Bill, but I did not spell it out before) – this clause places an obligation on the Secretary of State to produce a report on significant developments in international environmental protection legislation, every two years, and lay it before Parliament. England only (competencies are within the competencies of devolved legislatures).

The scope and content of the report will be determined by the Secretary of State – see subsection (5). However, in a given reporting period it could cover: significant developments in the legislation of other countries that are mainly concerned with seeking to protect the natural environment from the effects of human activity or protecting people from the effects of human activity on the environment; legislation on the maintenance, restoration or enhancement of the natural environment; or legislative provisions around monitoring, assessing, considering and reporting and monitoring on these matters. The report will not extend to reviewing or considering the planning systems of other countries.

OEP (Office for Environmental Protection) – unchanged from 2019 Bill – see Blog posts on this – England only (establishing an OEP is within the competencies of devolved legislatures – Scotland indicated it would go this direction see its Environmental Strategy – see my post of yesterday).

Changes to UK REACH – unchanged from 2019 Bill

Waste, Air and Water appear unchanged from the 2019 Bill, and I have Blog posted before about these topics. Nonetheless, I will Blog again re Waste, because this is highly complex and a lot of new processes are announced. Please read the Explanatory Notes – here.

New Blog posts will be made about the rest of the Bill, please look out for those.

EU Law in UK 2021 (UK Brexit)

Exit day is 31st January (end of this month)

Implementation period completion day is 31st December (this is the end of the transition period)

The Chancellor speaking to the Financial Times, confirms there will be no dynamic alignment with EU Law after 2020.

I am not yet clear which laws will diverge, but please note the Brexit laws allow divergence, for example the Brexit Agriculture Bill provides for England, Wales and Northern Ireland to create their own marketing standards (Scotland will need to enact its own Brexit Agriculture Bill).

The EU Exit regulations (statutory instruments) we (Cardinal Environment) are consolidating into domestic law only deal with the pre-Brexit period to end Dec 2020.

It is the FT front page today (Saturday 18th January) and the lead on BBC online.

EU Law per se will not apply anyway. Note, there may be some long tail implementation left over from pre-Brexit that will be implemented.

We (Cardinal Environment) are already consolidating the EU Exit regulations into domestic law, and creating the Retained EU Law (EU Regulations, not Directives, that are adopted). Progress in this project can be seen by clicking the Brexit Consolidated Law List on the top right hand side of EHS Legislation Registers & Checklists homepages (both ENV and OHS).

We are working to the deadline of 31st December 2020 for completion of this project.

In addition, EHS Legislation Registers & Checklists will see the home page choice of ENV or OHS have additional Post-Brexit choices, and the existing links relabelled Pre-Brexit.

The Post-Brexit links will direct to shadow Registers & Checklists that will run from the end of Q1 to hit the end Dec 2020 deadline, for switch over to Post-Brexit.

Post-Brexit shadow Registers & Checklists running in 2020 will have Brexit Consolidated Law loaded (accessibility will stay from the main Brexit Consolidated Law list), and will display a changed Register layout.

Post-Brexit EHS Legislation Registers layout – EU Law will be moved from the top to below Guidance. We will still supply up to date EU Law to UK customers, but this is where it will be found. Retained EU Law will be displayed at the top of the Register.

Stormont Re-Start (Northern Ireland)

Following acceptance by political parties in Northern Ireland of The New Decade, New Approach Deal, Stormont will re-start after three years.

This means restoration to full operation of all the institutions of the Belfast (Good Friday) Agreement, including the Executive, the Assembly, the North South Ministerial Council, the British-Irish Council and the British-Irish Intergovernmental Conference.

The following commitments in The New Decade, New Approach Deal are relevant for our purposes –

(1) The Executive will create an Executive Sub-Committee on Brexit.

The sub-committee will be chaired by the First Minister and deputy First Minister (or their nominated Ministerial representatives). The sub-committee will have at least one representative from each party on the Executive. As a matter of urgency the sub-committee will consider Brexit-related issues and will initiate, as soon as is practicable, an assessment of the impact of Brexit on the institutions and North/South and East/West relationships. The work of the sub-committee will be scrutinised by an Assembly Committee.

(2) The Executive will establish a central Translation Hub in the Department of Finance within three months of an agreement, in order to provide language translation services for the 9 Executive Departments, Arm’s Length Bodies, Local Government and Public Bodies.

The Assembly’s Standing Orders will also be amended to allow any person to conduct their business before the Assembly or an Assembly Committee through Irish or Ulster Scots. A simultaneous translation system will be made available in the Assembly to ensure that a person without Irish or Ulster Scots is not placed at a disadvantage.

(3) Representatives from the Northern Ireland Executive will be invited to be part of the UK delegation in any meetings of the UK-EU Specialised Committees or the Joint Committee discussing Northern Ireland specific matters which are also being attended by the Irish Government as part of the European Union’s delegation.

A powerful Joint Committee is established under the (international treaty) EU-UK Withdrawal Agreement to oversee that Agreement (for orderly UK exit from the EU). This Joint Committee will have Specialised Committees.

(4) The UK government will legislate to guarantee unfettered access for Northern Ireland’s businesses to the whole of the UK internal market, and ensure that this legislation is in force for 1 January 2021. The UK government will engage in detail with a restored Executive on measures to protect and strengthen the UK internal market.

The Deal, alongside its two annexes, represents a possible outline of a Programme for Government. The parties agree to publish, within two weeks of the restoration of the institutions, the fuller details of an agreed Programme for Government. The parties recognise that the final Programme for Government will need to be agreed by the parties who form the Executive.

Within its first month of operation, the Executive will publish a legislative programme and indicative timescales which will complement the Programme for Government.

The following are relevant Deal commitments –

(1) The Executive will make its first priority to ensure the best possible Brexit outcome for citizens and the economy, reflecting the priorities set out in the letter of August 2016 from the First Minister and deputy First Minister to the Prime Minister.

(2) The Executive will invest urgently in wastewater infrastructure (the Living With Water Programme) which is at or nearing capacity in many places across Northern Ireland, including in Belfast.

(3) The Executive will tackle climate change with a new Energy Strategy to address the immediate and longer term impacts of climate change, and set targets and actions for transition to a zero carbon society.

The parties agree that, within 3 months, the new Executive will publish a comprehensive timetable for the development and delivery of this and other strategies necessary to achieve the outcomes in the Programme for Government.

(4) The Executive will introduce legislation and targets for reducing carbon emissions in line with the Paris Climate Change Accord.

Specifically, –

* the Executive will bring forward a Climate Change Act

* the Executive will establish an independent Environmental Protection Agency

* the Executive will create a plan to eliminate plastic pollution

* the RHI (Renewable Heat Initiative) will be closed down and replaced by a scheme that cuts carbon emissions.

Please also note the statements made by the Irish Government which also summarises the Brexit supports available to border regions.

The Deal document is here.

Drinking Water Directive (EU)

Provisional agreement on revision of the EU Drinking Water Directive was reached on 19th December.

The proposal updates to the latest changes to WHO safety standards.

Further details are here.

UK – if the revised EU Directive is published before 31st December, which it is likely to be, then it will apply in the UK (but local law would have to be updated).

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.

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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.