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.

Environment Bill (published) Parts 1&2 (UK Brexit)

Exit day is 31st October (this date is set out in a Statutory Instrument)

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.

(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.

Part 1 – the Environmental Governance Part of the Environment Bill – includes –

– allowing the 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;

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

– requiring the 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;

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

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

– establishing the process by which a long-term target is set and amended, as well as an enhanced process where a long-term target is lowered or revoked;

– requiring the government to have, and maintain, an Environmental Improvement Plan, a plan to significantly improve the natural environment, which sets out the steps the government intends to take to improve the natural environment, and which sets out interim targets towards meeting the long-term targets;

– requiring the government to produce an annual report on the Environmental Improvement Plan, to consider progress towards improving the natural environment and meeting the targets;

– requiring the government to review the plan periodically, to consider progress and whether further or different steps are needed to improve the natural environment and meet the targets, and if appropriate revise the plan;

– requiring the government to collect and publish data used to measure progress in improving the natural environment and meeting the targets;

– requiring the publication of a policy statement on environmental principles setting out how environmental principles specified under the Bill are to be interpreted and applied by Ministers of the Crown during the policymaking process;

creating a new, statutory and independent environmental body, the Office for Environmental Protection (OEP), to hold government to account on environmental law and its Environmental Improvement Plan once the UK leaves the EU;

– defining the scrutiny, complaints and enforcement functions of the OEP and their scope;

– establishing an OEP enforcement process of environmental review in the Upper Tribunal; and

– defining the nature of the OEP, including considerations of membership, remuneration, staffing, powers, reporting, funding, accounts and other issues.

Part 2 – the Environmental Governance: Northern Ireland Part of the Environment Bill – includes –

– extending the application of the OEP to Northern Ireland, and making separate provision for Environmental Improvement Plans and environmental principles in Northern Ireland.

Delegated Powers Statement is here. [Environment is a delegated responsibility in the UK]

The delegated powers in the Bill fall into five thematic categories.

(1) there are powers that are needed as a result of the UK leaving the EU;

(2) there are provisions which modify, or are based upon, existing delegated powers;

(3) there are provisions which create new delegated powers to give effect to new environmental policy;

(4) there are powers for devolved administration ministers to make equivalent provision to UK Ministers;

(5) there are general provisions which are required for the Bill to have effect.

Provisions falling into the first category are intended to avoid a governance gap and to ensure the government can deliver on its environmental ambition when the UK leaves the EU.

All of the powers in Parts 1 and 2, plus six other powers fall into this category, as below:

– Existing environmental targets are largely derived from EU law and when the UK leaves the EU it may wish to set its own targets that differ and go beyond those of the EU that will have been retained for the time being in domestic law.

– Clauses 1 and 2 provide for regulations to set targets for matters relating to improving the natural environment or people’s enjoyment of it, and an air quality target in respect of the pollutant fine particulate matter (“PM2.5”).

– Environmental principles are reflected in various international instruments and are set out in the EU treaties. However, a clear articulation of these principles has never been laid out clearly at a national level. The Environment Bill will change this through requiring the publication of a statutory policy statement (clause 16) on the interpretation and proportionate application of the principles, to which Ministers will have a duty to have due regard when making policy. (This is not a delegated legislative power but it is included in Annex A. Northern Ireland has the same power in paragraph 6 of Schedule 2.)

– Clause 40(5) would allow the Secretary of State to set out in secondary legislation which legislative provisions come within the definition of “environmental law”, if required, in order to ensure that there is clarity about the scope of that definition (which in turn will define the scope of the OEP’s enforcement function). Northern Ireland would have the same power in paragraph 18(6) of Schedule 3. The aim of this power is to provide certainty to the OEP, public authorities and the public about the OEP’s remit, in the unlikely case that uncertainty cannot be resolved by other means.

– A number of regulation-making powers (clauses 56, 58, 79-81, 122 and Schedule 20) allow Ministers to make changes in relation to regulations made under section 2(2) European Communities Act 1972. This will, for example, ensure that the lists of priority substances for surface waters and groundwater and their environmental quality standards do not remain fixed and therefore potentially out of date or unsuitable for domestic conditions after the UK has withdrawn from the EU. Tying the UK’s standards to those set historically in the EU could increase risks to the water environment. A further example is a power that would ensure the regulation of international waste shipments can respond to the changes in the methods and practices of those engaged in illegal waste shipment activity.

Further Blog posts will cover the other parts of this important Bill.

Environment Bill (England & UK Brexit)

Exit day is 31st October (this date is set out in a Statutory Instrument)

Today, the announced new Environment Bill was given its First Reading. This Bill encompasses the governance aspects already announced by the previous administration (Bill that lapsed) and covers a range of matters, including Waste and Air Quality.

The Policy Statement is here. The Bill generally extends to England only, but its provisions are intended to create a UK wide approach, and some provisions clearly directly extend to the UK (e.g. UK REACH, below) –

On UK REACH – the Environment Bill gives the Secretary of State the power to amend two pieces of legislation regulating the use of chemicals in the UK.

(1) The REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) Regulation regulates the manufacture, placing on the market and use of chemicals. This is a Retained EU Law.

(2) The REACH Enforcement Regulations 2008 set out how the requirements of the REACH Regulation are enforced. This is a domestic UK Law.

Both of these laws are amended by Brexit Law effective from Exit day. Subscribers will find them in the Brexit Consolidated Law List in EHS Legislation Registers & Checklists.

The Policy Statement asserts the powers will enable the Secretary of State to take further steps where necessary to ensure a smooth transition to a UK chemicals regime following the UK’s exit from the EU.

The Policy Statement asserts it will also make it possible to keep the legislation up to date and respond to emerging needs or ambitions for the effective management of chemicals.

The Bill text is not yet public. I will issue further Blog posts once the text is public.

Environment Watchdog Bill (UK Brexit)

DEFRA has just published its draft Environment (Principles and Governance) Bill. This document is here.

The consultation response is here.

This Brexit bill is necessary because without oversight of the EU institutions and mechanisms, environmental governance in the U.K. would face gaps.

The draft Environment (Principles and Governance) Bill sets out how the government will maintain environmental standards as the UK leaves the EU. It also details how the UK will build on the vision of the 25 Year Environment Plan.

This includes creating an independent body – the Office for Environmental Protection (OEP) – which will:

• scrutinise environmental law and the government’s environmental improvement plan (EIP)

• investigate complaints on environmental law

• take enforcement action on environmental law

The draft Bill commits the government to publishing a policy statement which will set out how ministers should interpret and apply environmental principles. It also commits government to have a plan for environmental improvement.

In essence this Bill is the first part of the broader Environment Bill (not yet published). The broader Environment Bill will also include measures on air quality, nature recovery, waste and resource efficiency and water management. A policy paper is also published today (in connection with the Environment Bill). This policy paper is here.

New Environment Bill (UK)

Today 18th July (in fact just now), the UK Prime Minister announced the Government will bring forward the first Environment Bill since 1995. This is a highly significant development. At the Liaison Committee (of select committee chairs) underway at the moment, Mrs May stated this would encompass more ambitious objectives for air quality and also the opportunities that leaving the EU might bring.

I will issue a new Blog post when further detail is published. And obviously, in due course, Email Alert(s) will be issued to subscribers to the Cardinal Environment EHS Legislation Registers and Law Checklists.