By Sarah Denman, , ClientEarth, UK Environment Lawyer
It’s not often in life that we get a completely fresh start. The same can be said for environmental law, where technical updates happen much more often than new constitutional frameworks.
Brexit however, whilst presenting a very real threat of regression in environmental standards, also creates an opportunity to build environmental law differently.
The draft environment bill will be a key part of the UK’s post-EU legal landscape. It will restructure the environmental law we are inheriting from decades of EU membership. It will set the tone and the trajectory for a new ambition from the UK to protect and enhance our natural world.
Part one of the environment bill has already been published and contains draft clauses:
- requiring the publication of a policy statement that will set out how ministers should interpret and apply environmental principles;
- establishing a public authority to oversee and enforce environmental law; and
- committing government to have a plan for environmental improvement.
But we expect that the fuller version of the environment bill will also include measures on air quality, nature recovery, waste and resource efficiency and water management. This is likely to be published this summer and will be crucial in ensuring that environmental law is secured and improved as we leave the EU.
Whilst current proposals give us a starting point, improvements must be made if the UK truly wants to establish a world-leading system of green governance and become a leader in environmental standards.
The environment bill sets out the environmental principles which currently guide EU policy making and implementation. It requires the publication of a statutory policy statement on the interpretation and application of the principles which ministers must ‘have regard’ to when making policy.
But this approach falls far short of the current position under EU law where the environmental principles have a more thorough and secure role in environmental law and policy. The environment bill’s weak standard to merely ‘have regard’ to a policy statement – coupled with the numerous opt-outs the bill provides – mean that we are facing a significant regression in environmental standards.
The legal status of the principles must be strengthened in order to maintain existing environmental standards. However, Brexit presents an opportunity to go further than simply maintaining the status quo. The environment bill could be used to incorporate a strong and enforceable environmental non-regression principle into domestic law, requiring continual advancement in environmental laws and commitments. Meaningful commitments to non-regression are essential if the UK is to put itself forward as an actual world-leader in environmental protection.
The environment bill also presents an opportunity to better implement principles that are currently less developed in EU law. The integration principle, requiring that environmental protection is integrated into all policy areas, plays an important conceptual role in recognising that environmental matters do not exist in a vacuum. The environment bill should create new duties that make clear that the state of the environment is the responsibility of all parts of government, not just the Department for Environment, Food & Rural Affairs (DEFRA).
The Office for Environmental Protection
The Office for Environmental Protection (OEP) is intended to provide independent and impartial scrutiny, assessment and advice on government’s implementation of environmental law and policy. It will also be able to take enforcement action where needed to make sure government is meeting its obligations under environmental law.
Whilst the concept of the office is welcome, particularly as Brexit means we will lose the important oversight role that EU institutions such as the European Commission currently play, the proposal represents a missed opportunity to create a truly world-leading system of environmental governance.
The OEP needs a bespoke enforcement procedure in order to replace, and improve upon, the role of the EU institutions and to be able to effectively and meaningfully ensure compliance with environmental law. Though the expectation is that most complaints and matters would be solved without the need to resort to hard legal measures, the procedure must have legal teeth to it.
Central to this bespoke enforcement procedure must be the creation of a forum where the quality of government decision-making can be reviewed and assessed. Without this, the OEP will have to rely on traditional judicial review processes that have been shown to be frequently problematic in assessing and improving compliance with environmental law and responding meaningfully to peoples’ concerns.
In particular, the following issues must be addressed:
- The complaints procedure. Complainants must be assured that they will continue to be involved in the complaint. The process should be both iterative and deliberative, actively involving key stakeholders in all areas of the process and continually seeking the views and knowledge of the complainants.
- The scope of action of the OEP. Both the definition of ‘environmental law’ and of a ‘failure to comply with environmental law’ in the environment bill are opaque and potentially problematic. These should be clarified. This is also a chance to give the OEP a more innovative role over international law, which is currently missing. This is particularly important given that leaving the EU will bring about a significant change to the supranational layer of environmental law and policy that currently applies in the UK in lights of its EU membership.
- The enforcement powers are too weak. The OEP’s enforcement powers are entirely reliant on judicial review, which can only assess substantive legality in terms of irrationality. It does not allow review of the actual quality of decision-making. In addition, the OEP cannot require a change in behaviour. It can instead only issue advisory notices that are not binding on public authorities.
Building on the environment bill
The environment bill should not stop with its current scope of ambition. It represents a chance to both build on and improve the current environmental protections in the EU and deliver a truly green Brexit.
Actually improving environmental conditions will require new binding objectives and the cooperation of all parts of government. Ultimate responsibility to reach these objectives should lie with the Secretary of State, but the other arms and legs of government must not be allowed to act in ways incompatible with their achievement. Crucially, it must be possible to hold those responsible to account when they fail in their environmental responsibilities.
New binding and ambitious environmental goals should be established; for instance, we need new laws requiring compliance with World Health Organisation standards for air quality. We also need new mechanisms and processes that mean target-setting is done in line with ecological realities, future generations’ interests, planetary boundaries, global best practices, best available science and ratcheting up ambition.
Our new regulatory framework will also require new duties on private actors to reduce their impacts on the environment. Requirements to identify how business activities affect the environment, and take steps to prevent, assess and mitigate these, could trigger a shift in thinking about where responsibility for environmental conditions sits. Examples from health and safety law, or existing and emerging ‘duty of vigilance’ laws in France and Switzerland set the bar.
The environment bill must create the space for all of us to reconnect with our shared environments. Part of this is empowering people to fulfil their right to a healthy environment, to enjoy nature in its full wonder and re-establish our intrinsic connection to it. We must construct a legal framework that helps ensure our environment is clean, healthy, diverse and beautiful, while also providing people full access to justice and remedies for when the law is broken.
Sarah Denman can be reached by email at: SDenman@clientearth.org