The Environment Bill
The Environment Bill 2019-20 brings back the fallen Environment Bill 2019 from the previous Parliamentary session. The previous Bill passed second reading unopposed, but fell at dissolution for the General Election 2019.
The Bill sits alongside the Government’s longer-term objective for “this, to be the first generation to leave the environment in a better state than that in which we inherited it” and the Conservative Party manifesto pledge to “protect and restore our natural environment after leaving the EU”.
A large proportion of existing environmental law and policy in the UK derives from the EU, with its implementation largely monitored and enforced by EU institutions such as the European Commission.
Within the UK, environment is a largely devolved area and there is also a significant amount of domestic legislation relating to specific environmental policy areas. For example, the Forestry Act 1967, the Climate Change Act 2008 and the Water Act 2014. The Bill makes provision to amend existing environmental legislation and introduce new measures on a range of environmental policy areas within the UK.
The Draft Environment (Principles and Governance) Bill 2018 was published for parliamentary pre-legislative scrutiny on 19 December 2018. Part 1 of the Environment Bill updates that Draft Bill in light of the pre-legislative scrutiny reports by the Environment, Food and Rural Affairs Select Committee and Environmental Audit Committee. The government responded to these reports alongside introduction of the Bill in October 2019. (Defra, Policy Paper, Draft Environment (Principles and Governance) Bill 2018, 19.12.18)
Most of the UK’s environmental law and policy derives from the EU. The Bill sets out the measures needed to ensure that there is no environmental governance gap on withdrawal from the EU. It will allow the setting of long-term, legally binding and joined-up targets tailored to England, embed consideration of environmental principles in future policy making and establish the independent Office for Environmental Protection (OEP).
The OEP will be a domestic independent watchdog who will be responsible for taking action in relation to breaches of environmental law. Through its scrutiny and advice functions, the OEP will monitor progress in improving the natural environment in accordance with the government’s domestic environmental improvement plans and targets. It will be able to provide government with written advice on any proposed changes to environmental law and, through its complaints and enforcement mechanisms, the OEP will take a proportionate approach to managing compliance issues.
The Bill places a statutory requirement for the Government to prepare and maintain an Environmental Improvement Plan; the first being the 25 Year Environment Plan, and creates a new statutory cycle of monitoring, planning and reporting to ensure continuing improvement to the environment. It also establishes a new framework for setting long-term, legally binding and joined-up targets, covering at least air quality, resource efficiency and waste reduction, water and biodiversity. This includes a specific duty to set a target for annual mean concentrations in ambient air of the air pollutant of greatest harm to human health – fine particulate matter.
The Bill also legislates to protect the environment from damage by making environmental considerations central to policy development process across Government.
Waste and Resource Efficiency
In the 25 Year Environment Plan, the government committed to using resources from nature more sustainably and efficiently, and to minimising waste. In December 2018, the government published its Resources and Waste strategy to help move towards a more sustainable, circular economy.
Waste management is based on a waste hierarchy, which sets a priority order when shaping waste policy and managing waste. It gives top priority to preventing waste in the first place. When waste is created, it gives priority to preparing it for re-use, then recycling, then recovery, and last of all disposal. The Bill will provide the legislative framework needed to deliver on many of the commitments in the Resources and Waste Strategy.
The Environment Act 1995 allows for obligations to be placed on producers in relation to the re-use, recovery and recycling of products. These are already in place for four waste streams (including packaging waste), putting a level of financial responsibility on producers for their goods at end-of-life. The Bill will allow government to require producers to pay the full net cost of managing their products at end of life to incentivise them to design their products with sustainability in mind. The Bill also clarifies that producer responsibility obligations can include prevention of waste and redistribution, making it clear that action can be taken on food waste.
The Eco-design for Energy-Related Products and Energy Information (Amendment) (EU Exit) Regulations 2019 will allow for mandatory product standards to be set by the government for energy-related products. The Bill complements these provisions by enabling resource efficiency standards to be set for non-energy-related products. The Bill will also allow for clear labelling to enable consumers to identify products that are more durable, repairable and recyclable.
The introduction of a 5p plastic bag charge in England in 2015 has resulted in a 90 per cent decrease in plastic bag sales by main supermarket retailers. The Bill will allow for the introduction of charges for any single-use plastic item.
Current arrangements ensure that every local authority collects some recyclable materials. Local authorities, however, do not all collect the same range of materials, which has caused confusion as to what can be recycled. The Bill stipulates a consistent set of materials that must generally be collected individually separated from all households and businesses, including food waste.
The Bill also allows for the introduction of deposit return schemes where consumers pay
an up-front deposit when they buy an item, which is then redeemed on return of the used item. These schemes can increase recycling and reuse, and reduce littering.
The Bill will help prevent waste crime by modernising the regulatory framework; deter waste crime by ensuring regulators can take effective enforcement action; and detect
waste crime by allowing for electronic waste tracking. The Bill also contains measures to improve the proportionality and fairness of enforcement against littering, as part of the continued delivery of the Litter Strategy for England.
This work on plastic waste follows four key Defra consultations:
- Introducing a Deposit Return Scheme (DRS) for drinks containers (Defra, Link)
- UK packaging producer responsibility system (Defra, Link)
- Plastic packaging tax (Defra, Link)
- Making recycling collections consistent in England (Defra, Link)
Air Quality and Environmental Recall
The UK has legally-binding targets to reduce overall national emissions of five air pollutants - fine particulate matter, ammonia, nitrogen oxides, sulphur dioxide, and non-methane volatile compounds - by 2020 and 2030.
The government committed to delivering clean air in the 25 Year Environment Plan and published the Clean Air Strategy in January 2019. This sets out the comprehensive actions required across all parts of Government to improve air quality, at both the national and local levels, including by setting new and ambitious goals, bringing forward targeted legislation, investment and policies.
This Bill implements key proposals outlined in the Strategy, enabling greater local level action on air pollution, which will help the UK achieve its overall national emission obligations.
The Environment Act 1995 establishes the Local Air Quality Management Framework, under which local authorities have obligations to assess and manage the quality of the air in their areas. Amendments made to this Act by the Bill will strengthen these duties by giving greater clarity on the requirements of action plans.
Part III of the Clean Air Act 1993 is the UK’s main legislative framework for the control of pollution from domestic solid fuel burning. Part III gives local authorities the power to make an order designating parts of their area as Smoke Control Areas, in which it is an offence to emit smoke from chimneys of buildings and chimneys that serve the furnace of any fixed boiler or industrial plant. The amendments through the Bill will enable local authorities to issue civil financial penalties instead of criminal prosecutions, making enforcement quicker, simpler and more proportionate.
Part III of the Environmental Protection Act 1990 stipulates what can constitute a statutory nuisance. The amendment of this Act by the Bill means a local authority will be able to pursue somebody who emits smoke from private dwellings in Smoke Control Areas where it is prejudicial to human health or causing a nuisance.
The Bill sets out a number of measures to improve water resources, drainage and flood management including through:
- improved water resources planning;
- placing on a statutory footing drainage and wastewater planning to assess risks to sewerage networks and network capacity; and
- 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; and
It also includes measures to protect water quality in our surface and groundwater, by enabling updates to the lists of priority substances that pose a threat to water bodies in
line with the latest scientific knowledge.
Nature and Biodiversity
The 25 Year Environment Plan set the ambition towards embedding an environmental net gain principle in the planning system.
The revised National Planning Policy Framework strengthened planning policy on biodiversity net gain by making it clearer that all developments in scope should deliver them. In March 2019, the Government committed to mandating biodiversity net gain in the Environment Bill.
The Government also listened to concerns of the Wildlife Trusts and are taking action. The Bill will require the preparation and publication of Local Nature Recovery Strategies, mapping nature-rich habitats, so that investment can be targeted where it will make the most difference. The Government will provide data, guidance, and support, but these local plans will embrace local knowledge to strengthen links between neighbouring communities and support the wider Network.
This Bill also includes measures covering forestry and street trees, including amendments to the Forestry Act 1967 to tackle illegal felling, and measures requiring local highway authorities to consult the public before felling any street trees.
Conservation covenants are private, voluntary agreements between a landowner and responsible body, such as a conservation charity or public body. They provide for conservation of natural environment and heritage assets for the public good. They can bind subsequent owners of the land, so have the potential to deliver long-lasting conservation benefits.
Individual landowners can play an important role in conservation efforts, but under the current law it is difficult for any legal obligations they take on to remain once the land has been sold or passed on. As a result, conservation opportunities are missed or fail to secure long-term, sustainable outcomes.
Conservation covenants are used in other countries including New Zealand, USA, Canada and Scotland.
The Law Commission examined the need for conservation covenants and concluded that
legislation should be introduced. The Government committed to include provisions for conservation covenants in the Environment Bill.
Regulation of Chemicals (REACH)
The Bill provides powers to the Secretary of State to amend the EU REACH Regulation (registration, evaluation, authorisation and restriction of chemicals) in order to ensure an effective regulatory transfer of the EU REACH Regulation into the UK, and to allow future changes to be made.
Powers are also provided to the Secretary of State and devolved authorities to amend REACH enforcement regulations.
OTHER ENVIRONMENTAL MEASURES (TRANSPORT)
The Government wants to see the sale of new petrol and diesel cars and vans (including hybrids) ended by 2035. Subject to consultation, the date could become even sooner if a faster transition proves feasible.
At a local level, the most immediate challenge on air quality is nitrogen dioxide concentrations around roads. Ministers have published the UK Plan for Tackling Roadside Nitrogen Dioxide Concentrations, setting out how compliance with existing legal targets can be achieved in the shortest possible time. The plan is supported by a £3.5 billion investment into air quality and cleaner transport, and outlines how councils with the worst levels of air pollution at busy road junctions and hotspots must take robust action in the shortest time possible.
Dedicated funding packages have been set up by the Government to help support local authorities achieve this. This includes a £255 million Implementation Fund to support local authorities with a range of measures such as installing electric charge point hubs in car parks; bus priority measures; building cycle routes; and incentivising ultra-low emission taxis through licensing schemes and leasing electric vehicles.
Transport Decarbonisation Plan
Ministers have announced that a first-of-its-kind UK Transport Decarbonisation Plan will be complete in 2020, which will boost action needed to end the UK’s transport emissions by 2050. The Government has committed to engage with industry and communities around the country to develop this ambitious plan, which will set out what we must do to improve air quality, tackle climate change, and make our towns and cities better places to live.
Transport accounts for the greatest share of UK domestic greenhouse gas emissions, rising to 27 per cent in 2017, and has only fallen around 3 per cent since 1990. Whilst we expect to see a fall in emissions over the next decade, a step change across all modes is vital if we are to reach net zero greenhouse gas emissions by 2050 and deliver interim legally-binding carbon budgets.
The commitments to deliver Britain's first all-electric bus town or city, trial new "superbus" networks, and support on-demand services are the subject of three separate calls for proposals. £50 million has been made available to develop an all-electric bus town or city that would see an entire place’s bus fleet changed over to vehicles that are fully electric, or capable of operating in electric, zero-emission mode.
Walking and Cycling
The Government’s ambition is to make cycling and walking become the natural choices for short journeys and stages in longer journeys.
To help realise this ambition, around £2 billion is being invested in cycling and walking between 2016/17 and 2020/21. This is through the Government’s Cycling and Walking Investment strategy, and through additional investments by local councils and metro mayors.
Moreover, to ensure funding into the future, the Government has announced a new £5 billion funding package to boost bus and cycle links for every region outside London over the next five years.
These efforts will build upon the work that has already been undertaken to boost active travel. For example, investment of £210 million for the Cycle Ambition Cities programme has delivered 155 miles of new segregated cycle routes, 186 miles of new on-road and off-road routes for cyclists and pedestrians and 136 miles of off-road cycling signage and resurfacing improvements across eight cities. In addition, £22 million has been invested to upgrade 32 routes, covering 103 miles, along the National Cycle Network.
The Government recognises the public’s interest in, and the potential environmental value of, e-scooters, but it is also under an obligation to ensure that they are built and can be operated safely, both for their riders and for other road users. While e-scooters can be used on private property (with the landowner’s permission), in general it is currently illegal to ride them on the road. This includes in cycle lanes, or tracks, or on the pavement.
The Government’s ‘Future of Mobility: Urban Strategy’ includes a commitment to conduct a regulatory review on the future of transport which will consider the ‘safe design and operation of new vehicles such as electric scooters’. The Department for Transport have said that they ‘recognise that people want to take advantage of the opportunities personal vehicles, such as electric scooters can offer.