Natural Capital Protocol

The Natural Capital Protocol is a standardized framework that helps companies identify, measure and value their impacts and dependencies on natural capital. It was launched in July 2016.

The Council of the European Union, gathered on 17 October 2016 in Luxembourg under the Slovak Presidency, officially recognised the Natural Capital Protocol in the Outcome of the Council meeting. In its conclusions, the Council “considers that mainstreaming biodiversity provides new opportunities for all economic sectors, including the private sector (…); and calls on the business sector to increase its involvement in and contribution to achieving both the Aichi Biodiversity Targets and the biodiversity-related Sustainable Development Goals, and to analyse and invest in improvements and report on their impacts, actions and investments related to biodiversity and the ecosystem services it provides, sharing experiences and best practices, e.g. in the framework of Business and Biodiversity Platforms as well as other initiatives, such as the Natural Capital Protocol”. 

The Natural Capital Protocol is here.

The Aichi Biodiversity Targets are here.

EU Birds and Habitats Directives (EU)

As part of its Smart Regulation policy, the European Commission initiated a Regulatory Fitness and Performance Programme (REFIT). This is a continuous process, affecting the whole policy cycle – from the design of a piece of legislation to implementation, enforcement, evaluation and, where justified, revision.

Under the first stages of this programme, the Commission reviewed the entire stock of EU legislation and decided on follow-up actions, one of which is a ‘Fitness Check’ involving a comprehensive policy evaluation aimed at assessing whether the regulatory framework for a particular policy sector is ‘fit for purpose’. Fitness Checks are described to provide an evidence-based critical analysis of whether EU actions are proportionate to their objectives and delivering as expected. They are stated to cover environmental, economic and social aspects, and concern all EU policy areas.

In the environment policy field, the Commission already completed Fitness Checks of EU freshwater and waste related legislation, and has now begun a Fitness Check of the EU Birds and Habitats Directives.

The Fitness Check Mandate for Nature legislation is here.

Phase 1 (January-April 2015) was evidence-gathering in which all Member States and selected key stakeholder groups were consulted.

At national level, one representative from each of the following stakeholder groups were consulted in each of the 28 EU Member States:
1) Competent authority for nature
2) Other public sector body
3) Private sector
4) Non-governmental organisation involved in nature conservation.

Between April and the end of June 2015, meetings are held in ten Member States in order to gather and examine evidence in more detail, in particular evidence related to costs and excessive or unnecessary administrative burden linked to the Directives and the reasons behind them, as well as implementation challenges and successes. The ten Member States were the Netherlands (16-17 April), Germany (20-21 April), Poland (23-24 April), Spain (5-6 May), Malta (12-13 May), France (19-20 May), and the United Kingdom (1-2 June) Sweden (8-9 June), Slovakia (23-24 June), and Estonia (29-30 June, tbc).

Phase 2 (30 April- 24 July 2015): the Commission launched a 12-week public Internet consultation, open to all and available in 23 official languages of the EU. The questionnaire is in two parts with an initial set of general questions followed by a more detailed set of questions that explore different aspects of the Fitness check. Respondents have the option of only responding to the general questions or, if they wish, addressing the more detailed ones too. The results of the public consultation will be published in the autumn.

The List of documents compiled to assist the process is found here.

Liz Truss continues as UK DEFRA Secretary

Welcoming the continuation of Rt Hon Liz Truss MP as Secretary of State for UK Environment, Food and Rural Affairs (DEFRA).

DEFRA is a large UK government department responsible for policy and regulations on environmental, food and rural issues, covering:

* the natural environment, biodiversity, plants and animals 

* sustainable development and the green economy 

* food, farming and fisheries 

* animal health and welfare 

* environmental protection and pollution control 

* rural communities and issues 

DEFRA only works directly in England, by concordat works closely with the devolved administrations in Wales, Scotland and Northern Ireland, and generally leads on negotiations in the EU and internationally.

DEFRA’s work and priorities are delivered by 35 separate agencies and public bodies, listed here.

  

Infrastructure Act 2015 (England and Wales)

I posted earlier about the passage of the Infrastructure Act through the various stages of law-making. It is now law, and found here.

Non- Native and Invasive Species

Part 4, sections 23 to 25, insert new controls into the Wildlife and Countryside Act 1981 (as amended) to provide for species control orders and agreements, and powers of entry, applicable in England and Wales.

Hydraulic Fracturing

Section 43 sets out the right to use deep-level land (land below 300 metres) for the purposes of petroleum extraction and geothermal energy.

Section 44 qualifies this right and details the ways and purposes for which this right may be exercised. Note: Section 44(3) enables the land to be left in a different condition after use, including in respect of any infrastructure on or any chemical residue in the land.

Sections 43 and 44 bind the Crown.

Section 50 inserts new Sections 4A and 4B into the Petroleum Act 1998 (as amended) to provide for specific environmental safeguards in respect of onshore hydraulic fracturing. 

New Section 4B(4) (of the Petroleum Act) stipulates that regulations made by statutory instrument will specify—

(a) the descriptions of the areas that will be “protected groundwater source areas”, and

(b) the descriptions of the areas that will be “other protected areas” for the purposes of section 4A

(a) and (b) are line items 5 and 6 of the Column 1 conditions that must be satisfied before a well consent may be granted as an onshore licence under the Petroleum Act in England and Wales).

New Section 4B(5) (of the Petroleum Act) stipulates that the statutory instrument which contains the regulations under Section 4B subsection (4) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

New Section 4B(6) stipulates that the draft of the first such regulations must be laid before each House of Parliament on or before 31 July 2015.

Please note, the Infrastructure Act does not apply in Scotland or Northern Ireland. Please see the Scottish Government announcement on hydraulic fracturing in Scotland made 28th January – here.

The Infrastructure Act and the changes to existing Laws will be inserted into Cardinal EHS Legislation Registers – which contain Consolidated Law – available to subscribers.

Wildlife and Countryside Act 1981: Invasive Species (England and Wales)

The Wildlife and Countryside Act 1981 (WCA) is the principal legislation dealing with non-native species in Britain. It will shortly be amended by the Infrastructure Bill for England and Wales (when it is enacted). I have blogged a number of times following progress.

The WCA has already been amended in relation to England and Wales by various pieces of legislation, including the Wildlife and Countryside Act 1981 (Variation of Schedule 9) (England and Wales) Order 2010, the Natural Environment and Rural Communities Act 2006 and the Countryside and Rights of Way Act 2000.

Section 14(1) of the WCA makes it illegal to release or allow to escape into the wild any animal which is not ordinarily resident in Great Britain and is not a regular visitor to Great Britain in a wild state, or is listed in Schedule 9 to the Act. It is also illegal to plant or otherwise cause to grow in the wild any plant listed in Schedule 9 to the Act.

I have blogged separately about the situation in Scotland, where Section 14 operates differently.

England and Wales

The Schedule 9 list of animal and plant species has been amended by the Wildlife and Countryside Act 1981 (Variation of Schedule 9) (England and Wales) Order 2010.

Offences under section 14 carry a maximum penalty of a £5,000 fine and/or 6 months imprisonment on summary conviction (i.e. at Magistrates’ Court) and an unlimited fine (i.e. whatever the court feels to be commensurate with the offence) and/or 2 years imprisonment on indictment (i.e. at Crown Court). Guidance on Section 14 of the WCA gives further information. Here is a list of species in Schedule 9 of the WCA for England and Wales.

Section 14ZA of the WCA, as inserted by section 50 of the Natural Environment and Rural Communities (NERC) Act 2006, creates an offence of selling, offering or exposing for sale, or possessing or transporting for the purposes of sale, non-native species that are listed in Schedule 9 to the WCA and are specified for the purposes by the Wildlife and Countryside Act 1981 (prohibition on Sale etc. of Invasive Non-native Plants) (England) Order 2014.

This 2014 Order prohibits a number of plants from sale in England due to their significant negative impacts on biodiversity and the economy. Those species prohibited from sale are (alternative names are given in brackets):
– Water Fern, Azolla filiculoides, (Fairy Fern)
– Parrot’s Feather, Myriophyllum aquaticum, (Brazilian Watermilfoil, Myriophyllum brasiliense, Myriophyllum Proserpinacoides, Enydria aquatica)
– Floating Pennywort, Hydrocotyle ranunculoides
– Floating Water Primrose, Ludwigia peploides Primrose, Water, Ludwigia grandiflora Primrose, Water, Ludwigia uruguayensis
– Australian Swamp Stonecrop, Crassula helmsii, (New Zealand Pigmyweed, Tillaea aquatica, Tillaea recurva)

Section 14 ZB of the WCA, as inserted by section 51 of the NERC Act allows the Secretary of State to issue or approve codes of practice on animals which are not ordinarily resident in and are not regular visitors to Great Britain in a wild state and animals or plants included in Schedule 9 to the WCA (e.g. Horticultural Code of Practice). The codes alone cannot be used to prosecute but must be taken into account by a court in any case in which they appear to the court to be relevant.

Section 18D of the WCA, as inserted by section 52 of the NERC Act provides that a wildlife inspector may, at any reasonable time, enter and inspect any premises (which excludes dwellings) for the purpose of, amongst other things, ascertaining whether an offence under section 14 is being, or has been, committed on those premises. Section 18E further provides that a wildlife inspector may, for the purpose of ascertaining whether a section 14 offence is being, or has been, committed in respect of any specimen, require any person who has the specimen in his possession or control to make it available for examination, and may require the taking of a sample from a specimen found during an inspection.

Danish Nature Plan (Denmark)

The Danish government has presented its first ever long-term strategic plan for Denmark’s nature in a bid to improve the nation’s natural habitat looking ahead towards 2020.

‘Naturplan Danmark’ was revealed by the prime minister, Helle Thorning-Schmidt, and the environment minister, Kirsten Brosbøl on October 28, 2014. It details plans to transform 25,000 hectares of land into nature and to generate 10 million more nature visits from the Danes by 2020.

“The government wants a Denmark that has a balance between modern lifestyle, agriculture, nature and leisure time,” Brosbøl said in a press release.”

“The Danes are crazy about nature and we must dare to use it, but not to its detriment. The nature is worn out and under great pressure, which Naturplan Danmark aims to rectify so we can leave our children with better nature than what we were left by our parents.”

With the Naturplan Danmark plan, the government has earmarked 195 million kroner to various efforts aimed at rebuilding Denmark’s nature from 2016-2018, including a Green Denmark Map, which outlines how nature can be improved by 2050.

Additionally, the government has allocated 875 million kroner to the newly-presented nature fund Den Danske Naturfond, which is tasked with buying up nature in co-operation with two funds, Villum Fonden and Aage V Jensen Naturfond.

Naturplan Danmark is found here (Danish).

Infrastructure Bill 2014-2015 (UK) Update

My last post on the Infrastructure Bill is here. NB: the Commons Library Note linked from my earlier post has been since updated (20 October 2014) and provision for a right of access for shale gas/hydraulic fracturing is now included in the Infrastructure Bill.

The Bill has cleared the House of Lords and returned to the House of Commons.

The Infrastructure Bill 2014-2015 makes provision for a range of matters, including: (updated)

(A) Environmental control of plant and animal species (Part 3)

The Wildlife and Countryside Act 1981 will be amended to allow species control agreements (between regulators and land owners) and orders to be made by regulators in England and Wales (as they can be in Scotland) for invasive non-native species of plant or animal, or for a species of animal that is no longer normally present in Great Britain.

A species is non-native if it is listed in Part 1 or Part 2 of Schedule 9, or (if an animal) it’s natural range does not include any part of Great Britain or it has been introduced to Great Britain.

The regulators will include Natural England, the Environment Agency, and the Forestry Commissioners in England, and the Natural Resources Body for Wales in Wales.

The definition of owner (who can enter into species control agreements) includes leaseholders.

The Secretary of State will be obliged to issue a Code of a Practice in relation to species control agreements and orders in England. The Welsh Ministers must issue a similar Code of Practice in Wales.

(B) Shale Gas and Hydraulic Fracturing: right to use deep-level land (Sections 38 & 39)

This previously was not included in the Bill, whilst consultation was occurring. It is now included as Section 38. Section 39 clarifies this right, and confirms the right to use may extend to using any chemical. Sections 38 and 39 also apply to the Crown.

The Bill as brought from the Lords is here.