Environment Bill

Written evidence submitted by Tilak Ginige, Iain Green, Merve Demir, Rina Cindrak, Hannah Bowen, Rupert Cope, Joseph McMullen, Prof Rick Stafford, Environment & Threats Strategic Research Group & Centre for Ecology, Environment and Sustainability, Bournemouth University (EB51)

Environment Bill 2020 – Smoke and Mirrors

The current government’s legal response to protecting the environment (Environment Bill 2020) saw its second reading on the 26th of February 2020 [1] . This proposed legislation builds upon governments already flawed 25 Year Plan for the Environment introduced in 2018 [2] and sets out the agenda for environmental reform and governance post-Brexit.

The updated Bill includes a new commitment to publish a two-yearly review of significant developments in international legislation on the environment” that would then be factored into our Environmental Improvement Plan and environmental target setting process.

Furthermore, it would empower the Secretary of State to legislate on air pollution, waste and resource efficiency, water management, and chemical controls. It sets out a requirement for legally binding targets on air, water quality, biodiversity, and waste efficiency, along with a specific target on fine particulate matter (PM2.5). This is an empty promise: At the House of Commons Public Bill Committee hearing on the 12th of March 2020, ClientEarth’s UK Clean Air Lawyers Katie Nield noted that “the existing legal limit for particulate matter is too weak… What the Bill does not do and does not tell us, however, is how that target will actually be set to better protect people’s health”. [3]

Part 3 of the Bill deals with waste management and resource efficiency regulation and would give the secretary of state power to create deposit return schemes, ban single use plastics, and introduce new charges for plastic carrier bags. It would also amend the Environmental Protection Act 1990 with regard to providing recycling and food waste collection and puts provisions in place for electronic waste tracking. It actions the Conservative election manifesto pledge to tackle plastic pollution abroad by allowing the government to ban or restrict plastic waste exports to countries that are not members of the Organisation for Economic Cooperation and Development (OECD).

As the REACH Enforcement Regulations 2008 were made under section 2(2) of the European Communities Act 1972 – which is repealed by Section 1 of the European Union – no powers to amend REACH regulations would exist after exit day unless provisions such as those contained within Part 8 are made.’

Part 6 and Schedule 14 both deal with regulating biodiversity and would introduce a general duty to “enhance“ biodiversity in England and Wales, updating the Natural Environment and Rural Communities Act 2006 (see Environment Bill Explanatory notes Clause 93 (2)).  Schedule 14 would “[make] provision for grants of planning permission in England to be subject to a condition to secure that the biodiversity gain objective is met” [4] .

Part 7 deals with the creation of conservation covenants. Conservation covenants would be agreements between landowners and relevant responsible bodies which exist for conservation reasons. The responsible bodies could be public authorities such as local councils but also organisations such as charities (see Environment Bill Explanatory notes Clause 99). However, there is an absence of applicant suitability criteria which should be outlined before the passing of the Bill. Explanatory notes chapter 48 (page 19) states that the Law Commission Bill will allow for-profit bodies to apply to become responsible bodies. Can this be criticised? e.g., would criteria be needed to anticipate a conflict of interest? Would there even be a conflict of interest, or is it irrelevant?   Conservation covenants would bind both landowners and any succeeding landowners (see Environment Bill Explanatory notes Clause 103).

Water

1. Future water goals could remain unclear

DEFRA says the bill “reforms elements of abstraction licensing to link it more tightly to our 25-Year Environment Plan goal of restoring water bodies to as close to natural state as possible”. But neither the plan nor the Bill define what constitutes “natural state”, nor what “as close as possible” means.

2. The EA would be able to revoke some abstraction licences without being liable for compensation

The bill enables the Environment Agency to vary or revoke an abstraction licence without paying the licence holder compensation in cases where the licences “cause, or risk causing, considerable environmental damage”, or if they “consistently abstract less water than their licensed volume”.

3. But the powers would not be in place for many years

The EA would not be given the abstraction licence revocation powers until 1 January 2028. DEFRA has said previously that this is to give time for the catchment-based approach to bed in and for abstraction licensing to be moved into the environmental permitting regime. Is this time frame reasonable? Further, is it necessary?

4. The environment secretary would be able to change lists of pollutants and their limits

It would also create a power allowing the secretary of state to update the list of substances which potentially damage rivers and groundwater, alongside a power to update the standards and limits associated with the substances. DEFRA says this will ensure “regulations protecting water quality are keeping pace with scientific and technical knowledge”.

5. Ofwat would be given greater powers to intervene in the water sector

It would also strengthen Ofwat’s powers to modify companies’ licences to operate in a bid to ensure their supply, wastewater, and drainage networks are resilient in the face of droughts and floods.

6. The water sector’s supply resilience plans would be set in law

Water resource management plans would be underpinned by statute for the first time.

7. Water companies would be expected to create drainage and sewerage plans

The bill would require sewerage undertakers to prepare Drainage and Sewerage Management Plans and promotes the creation of new internal drainage boards, funded by local communities.

8. Water efficiency commitments did not appear in the bill

NGOs have expressed disappointments that the bill did not include any water efficiency commitments despite a pledge in the 25-year plan to reduce water use.

9. The majority of the UK’s water bodies do not meet Water Framework Directive standards.

Currently, just 14% of the UK’s waters have achieved good ecological status. All water bodies were supposed to have achieved the standard back in 2015. The country will not meet the new 2021 target.

The Office for Environmental Protection

The creation of the Office for Environmental Protection (OEP), the government’s proposed oversight and enforcement body, will have recourse to a new kind of legal mechanism, called an ‘environmental review’, that can compel public authorities to take action if a court finds they have breached environmental law. Its role will be to examine new green policies, investigate complaints and take enforcement action against public authorities for breaching environmental law. However, it is argued that OEP will be a toothless tiger, unable in its current form to fine public bodies. The strongest action the OEP could take following an investigation (after issuing a “information” and “decision” notice) would be to launch a judicial review. This would mark a change from the EU Commission’s enforcement role and the CJEU’s ability to fine countries for environmental non-compliance. It is therefore arguable that the function of the OEP would be practically ineffectual without powers to penalise – perhaps by way of fining, criminal sanctions, or orders for abatement or renewal.

The Environment Bill 2020 would give the Secretary of State sweeping powers to change regulation following Brexit but would make no legally binding commitments against loosening environmental standards in the four main regulatory areas (water, air, biodiversity, and waste). This would create the possibility of regression in environmental standards, which would likely be tested in any free trade negotiations with the USA and other economic blocs.

The Environment Bill 2020 would, prima facie, commit the current government and successive governments to a type of environmental protection which would seem to be setting a “gold standard” for improving air quality, protecting nature, increasing recycling, and cutting down on plastic waste. The Secretary of State would be emboldened with powers to create new regulations on air quality, water usage, waste disposal and resource management, biodiversity, and environmental risk from chemical contamination, and would create a new non-departmental green watchdog to record breaches of environmental law (the Office for Environmental Protection (OEP)).

The substance of the Bill echoes the Blair Government’s over-hyped Climate Change Act of 2008; both are characterised by lofty aspirational statements but are inadequate to reduce, for example, greenhouse gases and the impacts of climate change.

The inadequacies/deficiencies of this Bill require consideration of the following:

Ultrafine Particles

Ultrafine particles (UFPs) are particles less than 0.1µm across. Though small, UFPs are in the air in large numbers and have the ability to reach deep into the human body, and research suggests that they can contribute to cardiovascular disease, exacerbate existing heart conditions, and increase the likelihood of stroke. It is estimated that UK cities contain up to 10,000 in each cubic centimetre, but these particles are not directly regulated. The main sources appear to be road traffic – an area that, if tackled and reduced effectively, can significantly assist in the reduction of UFPs, and contribute to the reduction of air pollution in general. A wide use of Ultra Low Emission Zones be an effective method of reducing UFPs Alternatively, the use or encouragement of use of alternative vehicles may be effective. Of course, establishing air quality standards for UFPs in the UK would be the first important step. Although the current Euro 5 and Euro 6 emission standards specify PN emission limits, the lower cut-off set by Euro standards is suggested to exclude ~30% of the smallest UFP in urban environments. UFP-specific targets should be included in the Environment Bill 2020.

Air Quality

The Environment Bill can be improved and developed further – particularly in the area of Air Quality. Currently, there is no legally binding commitment to meet WHO air pollutions standards by 2030. Recent data on UK air pollution suggest that around 83% of zones in the UK have air pollution levels that breach UK legal limits, which are also around twice as high than the guidelines set by the WHO. Many suggestions have been made as to how this can be reinforced:

i. Forming an oversight body that is independent of government and which has the ability to legally require effective action to be taken by government and other public bodies to reduce air pollution. EU fines for non-compliance with environmental laws need to be replaced with equal or greater consequences that the UK can enforce.

ii. Creating an ambitious, practical strategic vision for clean air, and a strong national narrative for action to protect human health, wildlife and the natural environment via clean air. Public participation would need to be promoted and enhanced.

iii. Ensuring that the necessary public bodies/local authorities have the resources they need, such as access to expertise and up to date, accurate information as well as the powers to develop and implement additional resources/strategies. Further, promotion is required of methods which enable local authorities to share ideas and provide further support to each other to help coordinate a national strategy. We do not believe that local authorities currently share, help improve each-others Air Quality strategies effectively.

Air quality is also linked to the exacerbation and development of respiratory illness. In light of the COVID-19 crisis, these links must be explored thoroughly.

Long-Term Monitoring

There has been substantial provision of resources for management interventions (e.g. habitat restoration) though practices such as Higher-Level Stewardship (HLS). However, the provision for long-term monitoring of success is generally zero or too short-term for natural processes to be meaningfully evaluated (particularly plant community responses – i.e. the response of the key habitat creators).  This is a lost opportunity for assessing practical efficacy and further developing practices. We are wasting time and resources when nature can least afford us to do so. Covid- 19 consequences to funding cuts for conservation organisation staff will further add to the problem. UK Scientists and conservation organisations can do a lot together if provided with opportunities. UK Universities in particular could work with conservation organisations to provide long-term monitoring while also training the science and conservation leaders in ecology/environmental of the future. What is needed are resources to support these partnerships and to support research into how to maximise the success of these partnerships. This will enable the development of best practice.

Public Participation

Engagement of UK general public with the environment in ways that benefit both people and the environment.  This is an important loop to close so that conservation organisation resources that are currently highly focused on enhancing public engagement also achieve nature/environment conservation benefits wherever possible. Evidence suggests that environmental matters are predominantly the concern of the elderly, white, middle-class population. Methods of enhancing public participation procedures whilst benefitting the environment are necessary. This could be a vital part of the pathway to a new normal post Covid-19.

Sites of Special Scientific Interest

SSSIs are designated/classed as in good condition or not may need to change to take account of species movement due to climate change.

Other Conservation Areas

There are concerns with regard to designated sites where survival (e.g. of bird species) depends on multiple sites being conserved. This applies in the short-term (e.g. conservation) reasons, but also in the longer term (e.g. sea-level rise).

Coastal Concerns

There are also issues regarding states of funding as well for coastal defences and maintaining common approaches to protection. This is also important when considering realignment of coast, which can affect wildlife on the landward side.

Lack of Clear Policy

Lack of clear policy to address climate change (and other environmental issues) beyond consumer choice (i.e. buying eco-friendly products, emphasis in consumer choice in reducing plastics [5] or technological fixes (switch to electric cars). There needs to be a wider consideration of issues, especially around fossil fuel subsidies and high levels of carbon tax.

Nature-based Solutions (Beyond Tree Planting)

These need to be considered in light of climate mitigation, adaptation and biodiversity (and human well-being).

Fishing

Maximum sustainable yield is a flawed policy for protecting the marine environment and removing this high level of fish is likely leading to decreased ability of the ocean to absorb carbon. A better ecological and socio-economic method would be to move toward low impact methods from small-scale, inshore fisheries. [6]

Marine Protected Areas

Whilst these have been established around the UK, proper management measures need to be put in place and enforced to ensure full protection of vulnerable habitats, often high in biodiversity and carbon capture potential.

Re-Industrializing Coastal Regions Through Ecological Modernisation

Increasing academic discourse suggests that aspects of the Brundtland’s definition of sustainable development are inadvertently limiting the potential of contemporary sustainability from the perspectives of both horizontal and vertical actors, both nationally and internationally.  Using an overarching definition of sustainable development that overlooks or simplifies varying wants and needs of individuals and groups within a single society can result in the production of unbalanced policy measures. These unbalanced policies then hamper significant advancement of sustainable technology implementation as they fail to adequately reflect these varied and competing needs.  The UK is demonstrating such scenarios in which the skewed application of sustainable development is creating growing numbers of injustice.

Socio-economic Polarisation

Socio-economic polarisation is leading to increasing numbers of UK households falling into fuel poverty. Not only are the numbers increasing, but the severity of those afflicted by fuel poverty is becoming more extreme. This creates greater social divisions of inequity throughout the UK, whilst the benefits of energy infrastructures are limited to a privileged minority of society. Applying social justice as the basis for a specific alternative framework model within the UK offshore wind industry could not only reverse the trends of environmental, ecological and energy injustices including fuel poverty but could enable the UK to achieve its offshore wind generation potential. The specific framework model would harness tried and tested policy measures implemented in Denmark into autarkic framework-based wind projects. In doing so, the outcome would significantly improve regional and community levels of sustainable development, on both an intergenerational and intragenerational basis and help build a stronger, green economy here in the UK.

Utilising social justice as foundation for public participation to optimise the effectiveness of planning processes for NSIPs

Whilst efforts have been attempted by centralised policy makers to improve the levels of effective engagement from stakeholders within the planning processes of NSIPs, a number of significant problems remain. Various injustices work to counteract progression of the UK the development within its renewable energy sector. Distributional injustices, e.g. termination of funding for programmes such as Feed-in Tariffs and other support schemes demonstrate an inconsistent application of policy.

Procedural injustice examples within infrastructure planning such as unclear directions on stakeholder qualifications, participatory formats/procedures and failure to communicate details that can be readily understood by those not from a scientific or economic profession can produce inadvertent obstructions and injustices (albeit unintentionally) within the primary planning stages.  Recognising failures to identify the wants and needs of society hinders the progress of equitable top-down distribution of environmental justice, despite how well intended its application may be. Such misrecognition negatively influences individual involvement of qualified stakeholders in decision-making procedures, reducing the effectiveness of the public participatory processes within the energy sector and in turn negatively impacting the equitable distribution of energy justice.

By utilising the Area Input Theory and other academic evidence, a more comprehensible and constructive public participatory procedure/s could be designed to help address the access, distributional and recognition injustices created by limited or boiler plate consultation procedures during NSIP planning processes.

Agriculture

There are concerns over the conversion of agricultural land to housing has been further highlighted by the effects of the SARS-CoV-2 pandemic. We cannot rely on being able to use our wealth to buy food on global markets when those markets can be closed or restricted. This does not just apply to pandemics, but also to reduced availability of products in the global market place due to the dramatic population increase the world will see this century; a situation that will almost certainly be exasperated by global warming induced perturbations to global food production. Parliament’s own Office of Science and Technology has recognised the issue, pointing out that yields of the four major crops are increasing at less than the 2.4% per year required to meet the doubling global production need by 2050 (POSTnote 589). Yet we continue to prioritise house building over protecting productive soils. We are literally building on our future and these buildings are crushing or nation’s food security! We must protect our soils and agriculture and find new and radical solutions to provide high quality, high-density accommodation that leaves soils productive.

Invasive Alien Species

Widely considered as one of the leading causes of biodiversity loss in the world today, Invasive Alien Species is an area of serious concern. However, a number of issues have been identified regarding the law and policy surrounding this area. Listed below a few of the more significant problems have been addressed, with recommendations as to how these issues can be resolved.

1. Responsibility

According to the Wildlife and Countryside Act 1981, the responsibility of invasive species control falls to the landowners. However, the law states that they must only act to prevent the spread of the species off their land. Due to the high costs associated with removal of invasive alien species, many will therefore not act to control the species unless enforced against due to their legal obligation. By this point, the species has been given time to establish and spread through the ecosystem on the private land, but also in some circumstances, the species may spread further (e.g. Japanese Knotweed fragmenting into watercourses and spreading downstream) and eventually into the wild before any response is taken. At this point, the action cost to control the species will be far greater and often the species will have already have caused significant ecological damage to an area. A solution would be legislation offering landowners funding to assist in the removal of the invasive species, provided they take immediate action. Although this would entail an initial governmental cost, it would save in spending for control further down the line due to the proactive approach to tackling the issue at hand.

Although the Invasive Alien Species (Enforcement and Permitting) Order (2019) lists stricter regulations, there is still confusion due to a lack of clarity regarding where responsibility lies, as well as a lack of funding. Having a consistently funded regulatory body specifically focussed on invasive alien species would help develop more successful enforcement of environmental law. Expert enforcement officers with knowledge of identifying invasive alien species is important as some species (e.g. Giant Hogweed, which looks very similar to native Hogweed) are difficult to identify.

2. Invasive Alien Species (Enforcement and Permitting) Order (2019)

The species included under this order are those listed on the EU Invasive Alien Species of Union concern. However, subsequent to leaving the EU, it is a concern that the UK will have limited jurisdiction into any alterations to the EU Invasive Alien Species of Union concern Whilst it may be argued that EU Alien Species of Union concern is a well-researched and extensive list, the high priority species for the rest of the EU may not be at the best interests of the UK. Alternatively, Schedule 9 of the Wildlife and Countryside Act is a list specific to Great Britain, meaning this list can be altered and improved to accommodate the needs of Britain. More focus could instead be given to regularly updating and improving this schedule, using advisories from EU legislation, but focussing the list to adhere primarily to the requirements of the UK.

Furthermore, the new order lists 14 species identified for requiring management. This list excludes a number of Invasive Alien Species that are known to have serious detrimental impacts in Britain. This list implies that there are far fewer Invasive Alien Species of concern within the UK, diminishing the severity of the situation and lessening concerns for other Invasive Alien Species. Whilst having priority species lists can be beneficial in targeting particular areas of concern, it does not encompass the entire problem and is ineffective when trying to take a preventative approach.

One alternative measure to encompass all potential invasive species threats to the UK is to incorporate the whitelisting technique adopted by New Zealand. New Zealand is frequently referred to as an exemplary jurisdiction with regards to biosecurity and invasive alien species control. It operates a strict whitelist; meaning only species that are whitelisted are permitted into the country. This differs to our own blacklisting technique, which instead lists invasive alien species that are prohibited from being released into the wild in the UK. Having a whitelist sanctioned in the UK has the scope for an all-encompassing, far more effective biosecurity. It will guarantee that no invasive alien species are disregarded when considering biosecurity, ensuring the best possible preventative action is taken against invasive alien species in the future.

In order to still incorporate the idea of priority invasive alien species, a secondary list of high priority species could be created to assist in control projects within UK. This priority list should be informed by scientists and stakeholders from various sectors and updated on a regular basis. For species on this list, budgeted plans should be drawn for priority species, with clear time-set goals and systematic, scientific backing to ensure money is used as effectively as possible to control the species.

3. Biosecurity

As highlighted in the House of Commons Audit Committee 2019, there is currently no inspectorate dedicated to Invasive Alien Species. Border control is essential in preventing the introduction of invasive species before they have a chance to spread and establish. It is more cost-effective than controlling species once they have spread into the wild. Therefore, greater focus should be given to biosecurity at our borders.

Nature-based solutions, beyond just tree planting

The relevance of environmental protection in the UK and EU is a geographical reality especially considering transboundary pollution or larger scale global environmental issues. Thus, ensuring cooperation is crucial to avoid risking the condition of the UK natural environment. Although Brexit supporters argue that European environmental law is too strict, and a more flexible approach is required, this is mostly not the case because European environment law is majorly suffering from a lack of enforcement which leaves the law rather ineffective in practice. Especially in the development area, the European law offers a process-oriented set of tick-box exercises which leaves the environment vulnerable against economic and development initiatives.

Where environmental problems go beyond pollution, nuisance law is rather inadequate for the simple reason that it cannot contribute to ecosystem management. Also, it is mostly the cumulative impacts that degrade natural capital, and these might be difficult to prove in terms of causation as they might be distant in time and location. Also, nuisance law falls short where the pollution is at a larger scale, especially in highly industrialised countries. A similar limitation is seen in tort law where a person’s degradation of ecosystem functions leads to liability where the result is to cause significant economic damage to others. However, ecosystem management is more complex, and there is no common law tradition to underpin this development. (Ruhl 2008)

It is commonly accepted that the most significant move towards ecosystem management is the emerging emphasis on the economic value of ecosystem services. Ecosystem services are unique in a sense which focus both on the intrinsic value of nature but also the benefits for humans. These are crucial elements of human survival and well-being. Although economic value is quite straightforward for several services, there is no simple way to determine some services such as climate regulation or cultural heritage.

Ecosystem services can be used as a tool for policymaking and lead to changes in the priorities of governments and the private sector. Once identified and valued, there should be market and regulatory development for these services for the identification and creation for the most appropriate policy tools (e.g. allocation of property rights, payment for ecosystem services, ecosystem services districts…). There is an increasing number of global examples of situations where investment in natural capital can be more profitable than investments in physical capital. Also, these investments can contribute to the future flow of other ecosystem services. There are potential drawbacks such as this practice may be conflicting with other public objectives or lacking public support. It is commonly accepted that ecosystem services should be used in, at least, informing decision making on environmental matters. Especially, the valuation of these services can justify conservation efforts in economic terms as the benefits of conserving nature become observable. If the costs are higher than the benefits of protecting the environment, valuation offers the conservation bill.

A framework with a specific focus on the benefits humans obtain from ecosystems has the potential of drastically changing the face of environmental law and policy. If the UK uses of the weakness of the EU legislation in areas such as ecosystem services to set and achieve new objectives within the boundaries of international treaties that it is a signatory of, Brexit can become a unique opportunity to improve the domestic environmental law and policy which can result in the country becoming a front runner on environmental protection.

May 2020