Environment Act 2021

The Environment Act 2021: Part 1 – Environmental Governance

On 9 November, whilst the UK hosted COP26 in Glasgow, in Westminster, the Environment Bill received Royal Assent, becoming the Environment Act 2021 (the Act). This is the first of a series of briefings which will look at some of the key provisions of the Act and consider their potential impact.

Speed-read

The environmental governance provisions of the Act:

1. Seek to provide a post-Brexit legal framework for environmental governance and make provision for improvements to the natural environment (albeit this is, in the main, yet to come into force).
2. Incorporate five internationally recognised environmental principles into the UK's post-Brexit domestic legal regime via a policy statement, with Ministers under a statutory duty to pay "due regard" to the statement when making policy, with some important exceptions. It remains to be seen whether the policy statement will help Minsters to effectively identify opportunities to protect the environment, or whether the statement will lack detail and practical application.
3. Establish the Office for Environmental Protection, which was legally formed on 17 November 2021, however is not yet fully operational. The OEP's scrutiny and advice functions include monitoring and reporting on environmental improvement plans, targets and the implementation of environmental law by public authorities. The Act establishes the OEP's investigative and enforcement powers against public authorities, which include the ability to apply to the court for 'environmental reviews' as well as judicial review in cases involving serious breaches.
4. Empower the setting of long-term targets by the Government in relation to the natural environment and people's enjoyment of it, including obligations to set legally binding long term targets for air quality, biodiversity, water, resource efficiency and waste reduction, fine particulate matter (PM 2.5) and species abundance. A particular point of focus over the coming months will be the setting of the environmental targets. These have a hard, scientific, edge and should engage the public interest, both inside and outside of Parliament.

Introduction

The Act seeks to provide a post-Brexit legal framework for environmental governance and make provision for improvements to the natural environment. The Act is broken down into a number of key parts:

• Parts 1 and 2: Environmental governance
• Part 3: Waste and resource efficiency
• Part 4: Air quality and environmental recall
• Part 5: Water
• Part 6: Nature and biodiversity
• Part 7: Conservation covenants

The Act is, in the main, yet to come into force.

In this article we look at Part 1: Environmental governance, with a focus on:

1. efforts to improve the natural environment, including environmental principles, ministerial statements on regression / non-regression, targets, and environmental improvement plans; and
2. the establishment of the Office for Environmental Protection (OEP).

Environmental Principles

One of the environmental concerns raised by Brexit was that it would create an environmental governance 'gap'. In particular, the UK would lose the role played by a number of environmental principles contained in the European Treaty.

To seek to preserve this position, the Act incorporates five internationally recognised environmental principles into the UK's domestic legal regime. These are the integration, prevention, precautionary, rectification at source and polluter pays principles.

The principles are listed in the Act and incorporated into a "policy statement on environmental principles", which the Secretary of State is obliged to prepare (the Policy Statement). The Policy Statement explains how the five environmental principles should be interpreted and applied by Ministers when making policy. The overall intention is that the Policy Statement integrates environmental concerns into policy-making and guides Ministers towards opportunities to prevent environmental damage.

Statutory duty, exemptions and scope

Under the Act, Ministers are under a statutory duty to pay "due regard" to the Policy Statement when making policy. However, this is qualified by a subsequent provision which states that a Minister is not obliged to do anything that would have "no significant environmental benefit" or would be "disproportionate to the environmental benefit". This qualification affords Ministers scope to ignore the principles and could undermine their consistent application.

Further, there are a number of exemptions to the statutory duty, including where the policy relates to (a) defence or (b) taxation, spending or the allocation of resources within government. Exemption (b) appears to largely exempt HM Treasury from the obligation to have 'due regard' to the Policy Statement. Concerns were raised during the Bill's progress through Parliament that these exemptions, in particular (b), undermine the consistent application of the environmental principles across all aspects of Government.

In terms of the scope of the statutory duty, it only applies (i) to Ministers and (ii) "when making policy". It is therefore a relatively limited duty in this way. Importantly, for example, it doesn't apply to Local Authorities or to other ministerial functions, including individual regulatory, planning or licensing decisions made by Ministers.

Draft Policy Statement on environmental principles

At the time of writing, the Government has published and consulted on the draft Policy Statement; and the Government's consultation response is awaited. ¹

The purpose of the draft Policy Statement is to protect the environment by setting out how the environmental principles should be interpreted so that they are used effectively and embedded in policy-making. To enhance its effectiveness, the Policy Statement explains that:

• the statutory duty applies to all policy (not just environmental policy)
• the Policy Statement should be considered in the early stages of policy-making
• 'making policy' covers both making new policy, and a 'substantial change' to existing policy.

The draft Policy Statement does not seek to set a formula for how environmental principles should be applied to policy-making. Rather, it seeks to "empower Ministers…. to think creatively and use environmental principles in an innovative and forward-thinking way to protect and enhance the environment".

Taking each environmental principle in turn, the draft Policy Statement (1) sets out a more detailed description of the principle, (2) explains when it can be used / is relevant, and (3) guides Ministers on its application. For example, for the 'rectification at source principle', the draft Policy Statement says policy makers should "Consider the feasibility of rectifying the issue at source versus other options, and the costs and benefits of doing so. Efforts should be made to pursue solutions at source, where proportionate."

It remains to be seen whether the finalised Policy Statement will be a source of clear guidance which helps Ministers to effectively identify opportunities to protect the environment, or whether in practice it will be regarded as a somewhat 'fuzzy' statement, lacking in detailed and practical application, which Ministers need only consider in a number of limited circumstances.

Consultation responses

In a notable intervention, the OEP in one of its first acts, recommended that the draft Policy Statement is "strengthened in a number of areas". While the advice is stated to be "constructive suggestions" to Defra, it could be said to amount to a damning critique of the approach.

This is, perhaps, a statement of intention, and the OEP, discussed further below, is clearly not afraid of providing robust and detailed interventions.

Ministerial statements on regression / non-regression

One provision in the Act which has received little attention is a provision which requires Ministers to make a statement to Parliament explaining whether or not clauses in a Bill (a draft law) would reduce the level of environmental protection provided under existing law.

While it is merely a procedural obligation to report on whether existing environmental law would regress (and not a substantive obligation that environmental law cannot regress), the effect of such a Ministerial statement should not be underestimated.

If a Minister has to make a statement that their Bill waters-down environmental law, then one can expect Parliamentary and public scrutiny to increase markedly. The existence of this provision should make a Minister think twice about introducing legislation which waters down environmental protections – particularly the Environment Minister. The political capital which could be made by the opposition is obvious.

This provision largely aligns with the 'non-regression' principle in the Trade and Cooperation Agreement struck between the EU and the UK – and could also be used as evidence by the EU in disputes under this Agreement.²

Debate as to whether a statement has been given correctly can also be expected. The Act provides that the statement given to Parliament should be the "Minister's view" that a Bill "will not have the effect of reducing the level of environmental protection". While this gives the Minister the benefit of the doubt, there will undoubtedly be cases 'close to the line', where the Minister will be challenged about their view, and whether a Bill being promoted undermines existing environmental laws.

Office for Environmental Protection

The Act establishes the OEP, an independent Non-Departmental Public Body. Having existed in an interim capacity since July 2021, the OEP was legally formed on 17 November 2021 ³, however is not yet fully operational. According to its website, the OEP expects to be fully established in early 2022, after its functions and powers are made available to it by Parliament. A detailed schedule to the Act sets out constitutional matters of the OEP, including its membership, remuneration, powers, status and reporting.

The OEP is the main institutional mechanism to plug the 'governance gap' left by Brexit. In particular, the OEP will be capable of replacing the scrutinising function of the European Commission and the European Environment Agency.

The Key Functions of the OEP

The principal objective of the OEP is to contribute to environmental protection and the improvement of the natural environment. ⁴

The Act gives the OEP the ability to scrutinise and advise on environmental law. The scrutiny and advice functions of the OEP can be broken down into three distinct parts:

1. monitoring and reporting on environmental improvement plans (EIPs) and environmental targets
2. monitoring and reporting on the implementation of environmental law ⁵
3. advising on changes to environmental law or any other environmental matter, where requested by a Minister.

In its role, the OEP must act objectively, impartially, proportionately and transparently. The OEP is still subject to Parliamentary accountability as any reports produced, which relate to EIPs, targets or environmental law, must be laid before Parliament. Advice may also be laid before Parliament, if the OEP thinks fit.

OEP Investigative Powers

The Act gives the OEP the power to investigate serious breaches of environmental law by public authorities.⁶ The OEP may do this either upon receipt of a complaint, or, of its own initiative. In each case, the failure to comply with law must be "serious", which in practice means that the OEP will only be engaging with significant issues. Further information on how the OEP will interpret whether non-compliance is "serious" is expected in the OEP's forthcoming enforcement policy.

The Act sets out a number of important points on process and timing in relation to complaints. In particular, complaints that a public authority has failed to comply with environmental law must:

• first exhaust any internal complaints procedure, and
• be made within 3 months of the end of the complaints procedure, or 1 year from the date the alleged non-compliance occurred (where there is no complaints procedure)

In practice, we expect that a proportion of complaints will be invalid on the basis that they are either out of time, or that complaints have not first been addressed to the relevant public authority. However, the OEP retains a discretionary power to waive the time limit, in 'exceptional' circumstances.

Having concluded its investigation, the OEP must prepare a report⁷ setting out whether the public authority has failed to comply with environmental law, the OEP's reasons for that conclusion, and any recommendations the OEP may have. Interestingly, the OEP has discretion as to whether to publish the report – it is not mandatory. Given the public function which the OEP performs, it is hard to see in what circumstances it would not be in the public interest to publish the report.

OEP powers of enforcement

The OEP has a variety of enforcement powers. In summary, and in order of escalating effect and urgency, they are:

1. Information notices
2. Decision notices
3. Environmental review
4. Judicial review

Information notices

The OEP may serve an information notice on a public authority where it has reasonable grounds for suspecting that a public authority has failed to comply with environmental law. An information notice must set out the alleged failure to comply with environmental law and why the OEP considers it to be 'serious'. The notice of this power is, in most cases, likely to follow a public complaint.

In the information notice, the OEP may also request the public authority to provide information in relation to the alleged breach. The recipient must then respond in writing to the OEP's notice and is under a statutory duty to provide the information requested within 2 months. This enforcement power has the ability to highlight serious breaches of environmental law, and draw the offending public authority into a (potentially public) exchange of information in relation to the breach, and the steps which it is going to take to resolve the issue.

Decision notices

Following service of an information notice, the OEP may issue a decision notice. The OEP may serve such a notice where it considers that, on the balance of probabilities, the authority has failed to comply with environmental law, and that failure is serious. The decision notice will describe the breach of law, in effect, 'naming and shaming' the authority. Further, the notice should set out the steps the OEP considers the authority should take to address the breach, including to remedy, mitigation and prevent reoccurrence. Again, the recipient has 2 months to respond.

Many have criticised the fact that the OEP lacks the power to force corrective action in decision notices. The Act only provides that decision notices should set out "the steps the OEP considers the authority should take". While in this respect, the enforcement powers lack 'teeth', in all likelihood, the process of serving first an information notice, and then a decision notice, will nudge a non-compliant public body into compliance.

Environmental review

Where the OEP has served a decision notice, and is satisfied that the authority has committed a serious breach of environmental law, it may apply to a court for an environmental review. An environmental review will be undertaken by the High Court⁸ as to the conduct of an authority which has failed to comply with environmental law, applying judicial review principles.

If the Court finds that there has been failure to comply with environmental law, it must issue a statement of non-compliance to the offending authority. Where the Court issues such a statement, it can grant judicial review remedies (other than damages). However, the grant of such remedies is subject to a 'hardship' test.⁹

Judicial review

Where there is a serious failure to comply with environmental law, and the matter is urgent, the OEP may apply for judicial review or statutory review in relation to the conduct of a public authority. In this context, urgent means necessary to prevent or mitigate serious damage to the environment or human health.

If, following such judicial or statutory review, the public body is found to have breached environmental law, it is under a statutory duty to publish a statement within 2 months setting out the steps it intends to take in light of the finding.

Publicity of remedies

The OEP is generally obliged to publish a public statement where it takes any of the steps above. However, the OEP can elect to not publish details of its enforcement where it would not be in the public interest to do so.

Given the important role to be played by the publicity of such non-compliances, the ability of the OEP to take enforcement 'behind closed doors' has raised concerns. However, it is likely that, in almost all circumstances, it will be in the public interest to disclose the OEP's enforcement action.

Environmental Targets

The Act empowers the Secretary of State (SoS) to set long-term targets in relation to the natural environment or people's enjoyment of the natural environment. Within this general power, the SoS is obliged to set legally binding 'long-term' (15 year +) targets on at least one matter within four 'priority areas', namely:

1. air quality
2. biodiversity
3. water
4. resource efficiency and waste reduction

In addition to these 4 priority areas, the SoS must also set targets for:

1. fine particulate matter (PM _2.5) (in addition to the air quality target above), and
2. species abundance

The 'long term' (15 year +) targets will be supported by 5 year 'interim targets', to set a trajectory to meeting the long-term target.

The targets developed must set out a measurable standard to be achieved and, importantly, a date by which each target is to be achieved. Legislation setting out the targets must be laid before Parliament on or before 31 October 2022 and work on target setting has already begun.¹⁰ The Government has stated that it intends to carry out a public consultation on the proposed targets in early 2022.

In terms of compliance, the SoS is specifically obliged by the Act to "ensure that the targets….are met". To support achievement of the targets, the SoS is under a number of reporting duties. Briefly, the SoS must:

1. prepare annual reports on the progress that has been made towards achieving the targets
2. report to Parliament and publish a statement explaining whether or not the relevant target has been met.

Where the relevant target hasn't been met, the SoS then has 12 months to prepare a report explaining why not, and what the SoS intends to do to achieve the target.

Supporting this, the OEP (discussed above) must monitor and report on progress towards meeting the targets, including consideration of how progress can be improved. This therefore gives the OEP the ability to hold the Government to account.

In practice, these reporting processes will create a political and public focus on achieving the targets and accountability. As the targets themselves are yet to be set, it remains to be seen how ambitious the targets will be, and whether, in the words of the 25 Year Environment Plan, we can become "the first generation to leave the environment in a better state than we found it".

Environmental Improvement Plans

The SoS must also prepare an Environmental Improvement Plan (EIP), setting out a plan for "significantly improving the natural environment" over a period of not less than 15 years. The Act specifies that the current 25 Year Environment Plan¹¹  is to be adopted as the first EIP.

Each year, the SoS must report on implementation of the current EIP, including on what has been done to implement the plan, and whether the environment has improved. The annual report must also report on progress towards achieving the targets set, and any interim targets. The EIP is also subject to review (at least) every 5 years, with the first review of the current EIP (the 25 Year Environment Plan) set to take place by 31 January 2023.

As above, it is this process of annual reporting against the EIP, accompanied by the role of the OEP in monitoring and reporting against the EIP, which should drive achievement of the EIP and targets through policy and other intervention measures.

Concluding remarks

The Government has frequently described the new Act as "world-leading". It has also made ambitious assertations that the Act will "halt the decline of species" and "improve our natural environment". Given the length of both the Act, and the length of time it has taken to pass into law, one would certainly hope so.

However, the reality of the governance provisions in the Act is that they are, in large part, 'framework' provisions. By that, we mean that the Act:

• transposes into law certain environmental principles to guide policy making
• introduces a framework for environmental targets (but no targets themselves, yet)
• a structure of environmental improvement plans and monitoring
• establishes a new OEP, which is yet to be fully operational

The bulk of the provisions are procedural, as opposed to substantive, in nature. However, procedural provisions can still bring about genuine change.

A particular point of focus over the coming months will be the setting of the environmental targets. These have a hard, scientific, edge and should engage the public interest, both inside and outside of Parliament. The scope and ambition of the targets have the potential to genuinely affect the quality of the air we breathe, the water in rivers and seas and biodiversity. If well-chosen, the targets have the ability to catalyse improvements to the UK's environment. If set poorly, they have the ability to legitimise and exacerbate environmental decline. Given the context of the climate and environmental emergencies, it is hoped that time will tell the former rather than the latter.

The authors would like to thank you to Anthony Nzegwu for his work on this article

1. See here 

2. See here

3. The Environment Act (Commencement No.1) Regulations 2021.

4. This is not wholly dissimilar to the purpose of the Committee on Climate Change (CCC) which seeks to provide independent advice on setting and meeting carbon budgets and preparing for climate change. Throughout the Parliamentary process Ministers were alive to the potential for duplication of work by the CCC and OEP. To avoid this, the Act contains a provision which requires the OEP strategy to set out how it intends to avoid any overlap between the exercise of its functions and those of the CCC.

5. But, to avoid overlap, excluding law within the remit of the CCC

6. This means that the authority either unlawfully fails to take proper account of environmental law or errs in the performance of its functions under environmental law.

7. Note however that the OEP is not required to prepare a report where it has applied for environmental, judicial or statutory review in relation to the alleged failure.

8. in England and Wales.

9. Specifically, the Court can only issue such remedies where they would either (a) not cause substantial hardship or prejudice to a third party or not be detrimental to good administration, or (b) they would cause such hardship / prejudice, but the remedy is necessary to prevent serious environmental damage and there is an exceptional public interest to granting such remedy.

10. See here 

11. See here