IPBES Report on Biodiversity Loss (International)

A new global report by the UN Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) published yesterday, finds that 1 million species are at risk of extinction — more than ever before in human history.

The Global Assessment Report on Biodiversity and Ecosystem Services, prepared by 145 leading experts from 50 countries, examines the causes of biodiversity and ecosystem change, the implications for people, as well as policy options and likely future pathways over the next three decades. It provides an integrated overview of where the world stands in relation to key international goals, including the Sustainable Development Goals (SDGs) and the Paris Agreement on climate change. In addition to including more than 15,000 scientific and government sources, the report also cites indigenous and local knowledge.

Beginning with the UN Secretary General’s Summit in September and running through the Convention on Biological Diversity (CBD) in 2020, governments are now asked to present commitments.

The media release is here.

The Convention timeline to 2020 is here.

A major UK contribution is the UK Government Commission of Prof Dasgupta, University of Cambridge, to lead a UK government review of the economics of biodiversity. I Blog posted before about this announcement, made recently by the Chancellor.

Information about this Commission is 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.

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.

Infrastructure Bill 2014-2015 (UK)

This Bill (to be enacted as an Act and started in the House of Lords) is in 5 Parts with 5 Schedules. It applies mainly to England and Wales, but some elements also apply to Scotland.

Part 2 makes provision (England and Wales) for the control of invasive non-native species through species control agreements and orders, similar to the existing system in Scotland.

Part 3 makes provision about Nationally Significant Infrastructure Projects (NSIP) (England and Wales) and certain certain cross-border oil and gas pipelines (Britain), under the Planning Act 2008 (the 2008 Act deals with matters that are not devolved as regards Wales and Scotland). Amendments relating to the deemed discharge of planning conditions apply in England only.

NB: section 22 of the Planning Act 2008 is to be amended to provide that highway development (roads) will be NSIP if a strategic highways company is or will be the highway authority (Part 1 deals with strategic highways companies).

Part 4 and Schedule 5 make provision about a community electricity right to buy a stake in a renewable electricity development in or adjacent to the community (Britain and internal waters and the Renewable Energy Zone, except the territorial sea next to Northern Ireland).

Invasive Species

My latest post on EU Invasive Species is here. In this post I outline the position on non-native invasive species in Scotland (and England and Wales).

At present, DEFRA’s and the Welsh Government’s network bodies must enter into voluntary agreements with landowners over gaining access to eradicate non-native invasive species. Around 5% do not give authority. In contrast to powers available under plant and animal health to combat pests and diseases, government bodies have no power (England and Wales) to compel landowners to act, nor do they have powers of surveillance nor powers to enter onto land to carry out work.

The proposal is to insert a new subsection 14(4A) into the Wildlife and Countryside Act 1981 to provide for measures relating to species control agreements and species control orders to be contained in a new Schedule 9A.

Nationally Significant Infrastructure Projects (NSIP)

The Planning Act 2008 established the regime governing applications in respect of NSIP. Changes are proposed to enable the Examining authority (provided for by the Act) to be appointed earlier in the process, and to be comprised of two people (presently it can be one person, or three, four or five people).

Started in the House of Lords, however, the Bill does not include measures that have been widely speculated upon prior to its publication relating to hydraulic fracturing or fracking, and to zero carbon homes.

Bill progress (and explanatory notes) are here.

Shale Gas and Hydraulic Fracturing

The House of Commons Library Standard Note (updated 5 June 2014) Shale Gas and Fracking is here.

Invasive Alien Species (IAS) EU Regulation (update)

My post in 2013 on EU IAS is here.

16th April (today), the European Parliament is voting on the IAS Regulation. Progress is followed here.

In Scotland – The Wildlife and Natural Environment (Scotland) Act 2011 made a number of significant amendments to the provisions on invasive non-native species in the Wildlife and Countryside Act 1981 in Scotland.

– First, the 2011 Act amended section 14 of the Wildlife and Countryside Act 1981 as it applies in Scotland, so as to make it an offence to release an animal, or allow one to escape from captivity, to a place outside its native range or where the animal is of a type specified by the Scottish Ministers. It is also an offence to cause any animal outside the control of any person to be at a place outside its native range. There is a similar offence in relation to plants grown in the wild.

– The 2011 Act also introduced species control orders, a mechanism by which invasive species present on premises or land can be controlled with a view to preventing their spread into the wider environment.

The model adopted in Scotland comprises four basic stages:
(1) Investigation: the provisions allow the relevant body to enter land or premises for the purpose of investigating whether a species outside its native range is present on the relevant land or premises;
(2) Species control agreements (made between the relevant body and the owner or occupier of land or premises on which invasive non-native species are present) provide for operations to be carried out to control or eradicate invasive non-native species;
(3) Species control orders: if a species control agreement is not agreed or not carried out, the relevant body can make a species control order, specifying operations to control or eradicate invasive non-native species to be carried out on the premises or land in question;
(4) If the species control order is not complied with, the relevant body can itself carry out the operations – or arrange for them to be carried out.

In England and Wales – the Wildlife and Countryside Act 1981 makes it an offence to release, or allow to escape into the wild any animal which:
(1) is of a kind which is not ordinarily resident in and is not a regular visitor to Great Britain in a wild state; or
(2) is included in part 1 of schedule 9 to the Wildlife and Countryside Act 1981.

It is also an offence to plant or cause to grow in the wild any plant listed in part 2 of schedule 9 to the 1981 Act. But there is no wider prohibition of planting or causing to grow plants not ordinarily resident in Great Britain. It is a defence to prove that all reasonable steps were taken and due diligence exercised in attempting to avoid the commission of one of the above offences. Activities otherwise prohibited can be permitted under a licence. The sale of species covered by the above provisions can additionally be restricted by order.

There are also other laws which regulate import of non-native species.

The species control regime in Scotland allows for operations to control or eradicate an invasive animal, plant or fungus present on land or premises, excluding dwellings. The procedure is built principally around two elements: species control agreements and species control orders.

These sophisticated mechanisms are not available in England and Wales, and this matter is being looked into by the UK Law Commission. It’s recent report (issued 11th February 2014) is here.