Environmental Targets (UK)

Late today the UK Government announced its delayed proposals for targets (under the Environment Act 2021) – 13 targets will be laid by statutory instrument – here – they will go live in 2023 once approved by Parliament – this is a link to England’s biodiversity indicators –

Biodiversity on land

  • To halt the decline in species abundance by 2030.
  • To ensure that species abundance in 2042 is greater than in 2022, and at least 10% greater than 2030.
  • Improve the Red List Index for England for species extinction risk by 2042, compared to 2022 levels.
  • To restore or create in excess of 500,000 hectares of a range of wildlife-rich habitat outside protected sites by 2042, compared to 2022 levels.

Biodiversity in the sea 

  • 70% of the designated features in the MPA network to be in favourable condition by 2042, with the remainder in recovering condition.

Water quality and availability 

  • Abandoned metal mines target: Halve the length of rivers polluted by harmful metals from abandoned mines by 2038, against a baseline of around 1,500 km.
  • Agriculture target: Reduce nitrogen (N), phosphorus (P) and sediment pollution from agriculture into the water environment by at least 40% by 2038, compared to a 2018 baseline.
  • Wastewater target: Reduce phosphorus loadings from treated wastewater by 80% by 2038 against a 2020 baseline.
  • Water Demand Target: Reduce the use of public water supply in England per head of population by 20% from the 2019/20 baseline reporting year figures, by 2037/38.

Woodland cover 

  • Increase total tree and woodland cover from 14.5% of land area now to 16.5% by 2050.

Resource efficiency and waste reduction 

  • Reduce residual waste (excluding major mineral wastes) kg per capita by 50% by 2042 from 2019 levels.

Air quality 

  • An Annual Mean Concentration Target for PM2.5 levels in England to be 10 µg m-3 or below by 2040.
  • A Population Exposure Reduction Target for a reduction in PM2.5 population exposure of 35% compared to 2018 to be achieved by 2040.

The announcement states the UK Government will set out more details about its plans to deliver these targets in its Environmental Improvement Plan: its manifesto for the environment for the next 5 years. Publication will be by 31 January, as required by law.

There are no targets announced for –

* River or groundwater health (existing legislation is listed for deletion in GB under the Removal of REUL Project)

* Protected nature sites (much of the existing legislation is listed for deletion in GB under the Removal of REUL Project)

* Resource efficiency (existing legislation is listed for deletion in GB under the Removal of REUL Project)

EU Water Standards (EU)

(1) On 26 October 2022, the EU adopted a proposal to amend the Water Framework Directive, the Groundwater Directive and the Environmental Quality Standards Directive. This proposal is here.

24 substances are proposed for addition to the list of priority substances in surface waters, as well as a standard for total pesticides. They include PFAS, a range of pesticides, bisphenol A, and a number of pharmaceuticals.

The proposal also includes making certain standards stricter for substances already on the list, such as some metals and industrial chemicals.

Four other existing priority substances are proposed for removal from the list, and another for integration into the new PFAS group, and eight already-regulated “other pollutants” have been re-designated as priority substances, resulting in a total of 73.

A Q&A on this proposal is here.

(2) On the 26th October 2022, the EU adopted a proposal to revise the Urban Wastewater Treatment Directive. This proposal is here.

A Q&A on this proposal is here.

The revised directive will introduce extended producer responsibility. This means certain industries will be asked to pay for the treatment of the harmful pollutants that are released from the use of their products. Currently the pharmaceuticals and the cosmetics sectors are jointly responsible for 92% of the toxic load in wastewaters. For both sectors, there is sufficient evidence on the existence of micropollutants from these products in wastewater and there are treatments to remove their harmful residues. In the long term, the European Commission will assess if other sectors can be added to the extended producer responsibility scheme.

Statutory Environmental Targets (UK)

The Environment Act 2021 introduced a system of environmental governance based on statutory environmental principles and long-term environmental targets, and an Environmental Improvement Plan, all supported by an independent Office for Environmental Protection (operating in England and separately in Northern Ireland). Scotland does not have an OEP, it has set up a separate body under different legislation. Wales has no OEP.

Statutory targets were due (by law) by 31st October, but this deadline has been missed. The first review of the Environmental Improvement Plan is required by 31 Jan 2023. The current Environmental Improvement Plan is dated 2018 and the latest annual report on it is here. Annual reports are required by section 9 of the Environment Act 2021. Environment targets are governed by sections 1 to 7 of the Act. Section 10 stipulates reviews of the Environmental Improvement Plan.

In March 2022, the government announced a consultation on the targets. It closed on 27th June. The outcome of this consultation is not announced, nor are the statutory targets.

DEFRA responded to the OEP that it is committed to the target of halting species decline by 2030 which is included on the face of the Environment Act, and to bring forward the wider suite of targets specified under the Act.

The OEP is pressing for publication of the targets – here is their latest letter to DEFRA.

Included in the OEP’s letter to DEFRA is a non-exhaustive list of other statutory deadlines which appear to have been missed.

EU Law Revocation (Britain) UPDATE

The Retained EU Law (Revocation and Reform) Bill (I posted about recently) is in Committee stage, and the Public Bill Committee (the relevant Committee) yesterday has asked for submissions to it – here.

You can see from the link, the purpose of the Bill is to sunset (remove from the statute book) certain types of law by end 2023. In particular, the Bill will completely overhaul a body of UK domestic law known as “retained EU law” (REUL). This is a category of law that came into being as a result of the UK exit from the EU. It includes both Retained EU instruments, and certain domestic laws that gain their authority in a particular way.

Note: when the Committee concludes its consideration of the Bill it is no longer able to receive written evidence and it can conclude earlier than the expected deadline of 5.00pm on Tuesday 22 November.

As I have written in the last Email Alert to clients, we will commence listing the laws to be affected shortly, and this list will display on Cardinal Environment Limited EHS Legislation Registers and Checklists from Jan 2023 (earlier drafts will display earlier) and be subject to tracking through 2023.

A very considerable number of laws will be affected.

We expect most affected laws to be replaced with new laws, covering the same obligations. The tracking evident on Legislation Registers and Checklists will identify progress.

We do not expect that obligations will be removed altogether. If a law is removed without a replacement, we expect the obligations to be inserted by amendment into other pre-existing law, and the tracking will identify this.

Nonetheless, this is a complex process.

Habitats and Water Abstraction Court Case (UK)

On 6th September ’22, the High Court granted judicial review of an Environment Agency decision in 2021 to restrict their investigation of water abstraction impacts on Sites of Special Scientific Interest (SSSI) in Norfolk. The judgment is here. Local press is here.

The claimants were private citizens, farmers, living in the Norfolk Broads, freehold owners of a fen and other land, and concerned that water abstraction (for food production primarily) is causing irremediable damage to the environment, their own land, including ecosystems that are legally protected. Their intervention had been on going for 14 years, and had already been instrumental in the decision of the defendant, the Environment Agency, not to renew two abstraction licences. They successfully supported the Environment Agency’s decision to vary the two licences when that decision was challenged on appeal.

The Environment Agency was established by section 1 of the Environment Act 1995. By section 6(1)(b) of the 1995 Act, its duties include the promotion of the conservation of flora and fauna which are dependent on an aquatic environment. It is responsible for the grant (and variation and revocation) of licences for the abstraction of water.

Groundwater is water that is present in the ground. Many ecosystems (habitats and species) are dependent on a supply of groundwater. Groundwater may be abstracted (in the Norfolk Broads, from either the chalk, the crag, or the Sandringham sands) for use by the public water supply, industry, and agriculture. A licence is required to extract groundwater. Such licences may either be permanent (with no requirement to renew) or time limited (with the possibility of periodic renewal). The Environment Agency has power to revoke abstraction licences: sections 52 and 53 of the Water Resources Act 1991.

Once changes to an ecosystem are apparent, it may be too late to put matters right; by that stage, irremediable damage may have occurred. For this reason, Natural England (which has statutory responsibility for providing advice to the Environment Agency and others) is an interested party and had advised the Environment Agency in October 2020 that it was necessary to consider water supply in the Broads and to take any necessary action to restore ground and surface water levels. For the same reason, the Environment Agency itself recognises an obligation to apply a “precautionary approach to dealing with adverse effects” such that it must take appropriate and proportionate action to ensure that licenced water abstraction does not lead to adverse effects.

The Norfolk Broads is, in terms of rainfall, one of the driest parts of the country. Long- term average annual rainfall is between 600mm and 730mm. The low rainfall is exacerbated by periods of drought. The Broads also lie within an area where a great deal of irrigated fruit and vegetable production takes place. This is reliant on water abstraction. In the Bure and Thurne Reporting Area alone, more than 60 million litres of ground water and surface water are abstracted each day. So, there is a relatively small amount of rainfall, but a considerable amount of water is taken from the ground.

The claimants believe that the Environment Agency ought to review more broadly the impact of water abstraction to decide whether other licences should also be withdrawn or altered. The court case is the claimants challenge, seeking judicial review, of the Environment Agency’s refusal to expand the scope of an investigation that it had conducted in 2021 into the effect of 240 abstraction licences. That investigation concerned the impact of abstraction on just three Sites of Special Scientific Interest (SSSIs).

The Environment Agency accepts that it must have regard to article 6(2) of the pre-Dec 2020 European Habitats Directive. It maintained that it had done so and that it had, after taking it into account, reasonably decided to limit its investigation of the impact of the 240 licences to the three SSSIs. It disputed that article 6(2) has direct effect in domestic law beyond the obligation to “have regard” to it. Irrespective, it maintained that it was acting compatibly with the requirements of article 6(2).

The High Court determined that the GB Habitats Regulations (2017) continue to have effect in domestic law even though they are EU-derived domestic legislation: by means of sections 1B(7) and 2(1) of the European Union (Withdrawal) Act 2018specifically –

“The Habitats Regulations are thus retained EU Law: section 6(7) of the 2018 Act. It follows that they must be interpreted in accordance with retained EU case law and retained principles of EU law: section 6(3) of the 2018 Act.

” Questions as to the meaning and effect of retained EU law (so, including the Habitats Regulations, and the obligation under article 6(2) which continues to have effect under section 4) must be decided in accordance with retained general principles of EU law: section 6(3)(a). The precautionary principle is a retained general principle of EU law: section 6(7).

The High Court decided on 4 matters –

(1) The ambit of the obligation, under regulation 9(3) of the GB Habitats Regulations (2017), to “have regard” to the requirements of the pre-Dec European Habitats Directive, including whether that mandates compliance with article 6(2) of that Habitats Directive.

Decision – “…. the duty to “have regard” here does not implicitly permit the Environment Agency to act in a way that is inconsistent with the Habitats Directive (in other words to have regard to the requirements of the Directive but then deliberately decide to act in a way that is inconsistent with those requirements). Rather, it recognises that the Environment Agency is one part of a complex regulatory structure and, depending on the issue, it may have a greater or lesser role to play.”

“The duty on the Environment Agency to have regard to the requirements of the Habitats Directive means that the Environment Agency must take those requirements into account, and, insofar as it is (in a particular context) the relevant public body with responsibility for fulfilling those requirements, then it must discharge those requirements. In other words, the scope for departure that is ordinarily inherent in the words “have regard to” is considerably narrowed.”

“It is clear from all of the contemporaneous evidence (including internal emails) that the Environment Agency has regarded itself as bound by the Habitats Directive and has sought to act in compliance with its requirements”

(2) Whether article 6(2) of the pre-Dec 2020 Habitats Directive imposes an obligation of a kind recognised by the Court of Justice of the European Union (“CJEU”) or any court or tribunal in the United Kingdom in a case decided before 2021.

Decision – “…. by reason of section 4 of the 2018 Act, article 6(2) continues to be recognised and available in domestic law and is to be enforced accordingly.”

Detail – “The parties agree that the question of whether article 6(2) is enforceable by a UK court (irrespective of regulation 9(3) of the Habitats Regulations) turns on the application of section 4(2)(b) of the 2018 Act, namely whether the obligations under article 6(2) are of a kind recognised by the CJEU, or any court or tribunal in the United Kingdom, in a case decided before 11pm on 31 December 2020.”

“… That test is satisfied once a case is identified that recognises article 6(2) as being enforceable in domestic proceedings. The statute expressly provides that it is not necessary for that to be an essential part of the court’s decision. It is not relevant to the section 4(2) test to enquire as to whether the case was correctly decided or was decided per incuriam. The position might be different if the decision had been overturned on appeal, or later overruled, but that is not the case here.”

(3) Whether the Environment Agency has breached article 6(2) of the pre-Dec 2020 Habitats Directive by limiting its investigation of water abstraction to the three SSSIs.

Decision – “The claimants have demonstrated a breach of article 6(2) of the Habitats Directive and a breach of regulation 9(3) of the Habitats Regulations.”

4) Whether the Environment Agency acted irrationally by limiting its investigation of water abstraction to the three SSSIs.

Decision – “Having committed itself to discharge that obligation, it was irrational for the Environment Agency not to expand the RSA programme without having any alternative mechanism in place that could ensure compliance with article 6(2). It follows that even if (contrary to the findings I have made in respect of issues (1) and (2)) article 6(2) is not enforceable by the High Court, the Environment Agency’s decision is flawed on common law grounds. On this basis, the claimants’ rationality challenge also succeeds.”

Summary

(A) The claimants showed that water abstraction may be causing deterioration of protected habitats or significant disturbance of protected species within The Broads Special Area of Conservation.

(B) The Environment Agency must (by reason of regulation 9(3) of the Habitats Regulations) have regard to the requirements of article 6(2) of the pre-Dec 2020 Habitats Directive. It must therefore be in a position to justify any departure from those requirements. The Environment Agency’s obligation under article 6(2) continues to be enforceable in domestic law: section 4 of the 2018 Act. That obligation must continue to be interpreted in accordance with the precautionary principle: section 6 of the 2018 Act.

(C) The Environment Agency must take appropriate steps to ensure that, in the SAC (pre-Dec 2020 European Habitat designation adopted in UK law and applied to areas of Norfolk, including SSSIs), there is no possibility of the deterioration of protected habitats or the significant disturbance of protected species as a result of licensed water abstraction. The Environment Agency has discharged that obligation in respect of three sites of special scientific interest. But it has not done so in respect of all sites within the SAC. That is because its review of abstraction licences was flawed and (at least in relation to permanent licences) it has not conducted a sufficient further review to address those flaws. It is therefore in breach of regulation 9(3) of the Habitats Regulations and article 6(2) of the Habitats Directive.

(D) Having decided to comply with article 6(2), it was not rational for the Environment Agency to limit its investigation to just three sites without undertaking further work to ensure compliance with article 6(2) across the entire SAC.

The High Court will issue Directions.

This was a court case in which the claimants relied on a pre-Dec 2020 EU Directive to gain relief. The judgment confirmed the direct influence of EU Law if, prior to 1st Jan 2021, those rules had been found by a court (the CJEU or a local UK court) to be directly enforceable against public authorities.

The Prime Minister has promised to remove the influence of EU Law by end 2023. Please note my Blog post of some days ago re the forthcoming EOR Regulations (which when enacted may alter or revoke the 2017 Habitats Regulations).

The new DEFRA Secretary has cited water security as a key objective, along with food supplies.

Storm Water Overflows (England)

UPDATE: 7th September ’22 the new DEFRA Secretary wrote to water companies to write to him formally by 21st September ’22 with their plans to make significant improvements.

6th September ’22, an Urgent Question was asked (in the House of Commons) of the then DEFRA Secretary George Eustice about storm water overflows. His answers provided an update – (the DEFRA Secretary has now changed) –

(1) When appointed DEFRA Secretary in February 2020 Mr Eustice instructed officials to change the strategic policy statement for Ofwat to give the issue greater priority.

(2) The Environment Act 2021 sets a requirement for water companies to reduce the harm caused by sewage discharges.

(3) Water companies are investing £3.1 billion to deliver 800 storm overflow improvements across England by 2025. Mr Eustice stated this would deliver an average 25% reduction in discharges by 2025.

(4) In 2016, only 5% of storm overflows were monitored – almost 90% are now monitored, and Mr Eustice stated by next year 100% of all storm overflows would be required to have monitors fitted. There are 15,000 storm overflow discharge points in England.

(5) The Environment Agency and Ofwat have launched criminal and civil investigations into water companies, at more than 2,200 treatment works, following the improvements made to monitoring data. That follows 54 prosecutions against water companies since 2015, securing fines of nearly £140 million.

(6) The Environment Act 2021 makes it a legal requirement for companies to provide discharge data to the Environment Agency and to make it available to the public in near real time: within an hour.

(7) The Environment Act 2021 gives new powers to Ofwat to modify water company licence conditions. Mr Eustice stated Ofwat is currently consulting on proposals that will enable it to take enforcement action against companies that do not link dividend payments to their environmental performance or that are failing to be transparent about their dividend payouts. It’s possible the consultation referred to is one on PR24 here. Note Ofwat’s expectation (PR24) that investor returns would be linked to the ability of companies to create and deliver value for customers and the environment, and the expectation that companies would take significant action to improve the environment and resilience. The City Briefing of 7 July ’22 gives further detail – here.

(8) On 5th September ’22, the storm overflows discharge reduction plan (required by the Environment Act 2021) was laid before Parliament. This plan underpins the £56 billion of capital investment over the next 25 years cited by Mr Eustice and the initial £3 billion investment to reduce discharges by 25% by 2025 at point (3) above. The plan makes a priority of designated bathing waters and other priority sites with a target of 2035. The plan foresees significant reductions in discharges at 75% of high-priority sites. The government’s storm overflows discharge reduction plan (England) is here.

(9) On 27th June ’22, the Office for Environmental Protection announced its first investigation: of the roles of Ofwat, the Environment Agency and the DEFRA Secretary in the regulation of combined sewer overflows (CSOs) in England – the announcement is here.

(10) The Environment Agency’s costs for monitoring water companies’ permits for the management of combined storm overflows are cost-recovered through the permit. In addition, Mr Eustice said the government provides some support.

(11) Southern Water is one of the companies that was recently investigated, and it was subject to a record fine of close to £90 million. The fine precipitated a change in ownership of that company and additional equity injected – the Ofwat (August ’22) consultation on the transfer that took place in 2021 is here.

(12) Mr Eustice distinguished – one matter is the failure of water companies to abide by their permit conditions, the reason for the Environment Agency bringing multiple prosecutions. Another matter is the separate issue of the permitted use of storm overflows. That issue is about long-term investment in infrastructure, which is the focus of the government’s storm overflows discharge reduction plan.

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.

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.