Environment Bill

Written evidence submitted by Professor Eloise Scotford, Centre for Law and Environment, Faculty of Laws, UCL (EB56)

Submission to Public Bill Committee Inquiry of the Environment Bill 2019-20

Professor Eloise Scotford, Centre for Law and Environment, Faculty of Laws, UCL

1. I am Professor of Environmental Law in the Faculty of Laws, University College London. I have wide-ranging expertise in UK and EU environmental law. I am author of Environmental Principles and the Evolution of Environmental Law (Hart 2017) and co-author of Environmental Law: Text, Cases and Materials (2nd ed, OUP 2019).

2. I gave written and oral evidence to the Environmental Audit Committee on the Draft Environment (Principles and Governance) Bill 2018 (written evidence, published 6 February 2019, with supplementary evidence requested by Committee Chair published 27 March 2019; oral evidence 27 February 2019).

Executive Summary

· The provisions on environmental targets are currently weak in terms of standard setting, regression, and accountability. They do not set a clear long-term direction towards environmental improvement and high standards of protection.

· The provisions on environmental principles are unhelpfully divorced from the rest of the Bill, and relegate environmental principles to the policymaking sphere, undermining their potential value as principles that underpin all UK environmental law.

· Environmental improvement plans should aim to improve the natural environment against an objective of high environmental quality and resilience.

· Clauses 19 and 20 are oddly drafted provisions that provide no guarantees of non-regression from existing environmental standards.

· The Bill’s provisions on enforcing breaches of environmental law are weakened by having a constrained definition of what constitutes a ‘failing to comply with environmental law’ and through the reliance on judicial review principles in any environmental review action.

· On air quality governance, the Schedule 11 amendments to the Environment Act 1995 provisions on local air quality management (‘LAQM’) are welcome in extending legal responsibility for air quality to a wider set of public bodies, but the current drafting maintains an inappropriate level of responsibility on local authorities.

Environmental targets (Part 1, Chapter 1)

3. Whilst provisions to set new targets for environmental protection are to be welcomed, there are at least three major concerns with the Bill’s provisions, concerning standard setting, regression, and accountability. First, the standard setting process risks weak targets being set, since there are: no environmental objectives driving the target setting process (cf Article 191 TFEU); no requirements to consider and take into account relevant expertise (including views of other public bodies, such as the OEP) (clause 3(1) is weak in this respect, cf s 7 Climate Change Act 2008); and no obligation to ensure that targets set do not fall below existing or future equivalent EU standards. Furthermore, the obligation to set targets where the Secretary of State (‘SoS’) is satisfied that the target ‘can be met’ (clause 3(2)) is not consistent with either setting ambitious long-term targets or with the dynamic nature of ecosystems. Relatedly, the requirement to set a minimum of one standard in each priority area (clause 1(3)) risks a de minimis approach to target setting when the full range of relevant standards in each of these areas is extensive.

4. Second, the long-term certainty that targets might provide is undermined by various clauses that allow regression from standards once set. The 15-year time span for compliance (clause 1(6)) may itself lead to a weakening of standards if there were any implied repeal of existing EU-derived target (subject to how the provisions of this Bill interact with s 7 European Union (Withdrawal) Act 2018 (‘EUWA’)). Furthermore, the prospective of allowing standards to be weakened (clause 3(3) – the language of ‘lowering’ is also ambiguous) if the environmental, social, economic or other costs of meeting it would be disproportionate to the benefits due to changed circumstances is a very broad power that gives no clear priority to environmental concerns.

5. Third, requirements to account for progress in meeting standards are also weak. The significant review test (clause 6(3)) is a global test – relating to the cumulative effect of all environmental standards together, in theory. It does not allow for problems of inadequate standards in practice to be addressed, nor will inadequate standards for one particular aspect of the environment (eg water quality) necessarily be sufficient to trigger review and strengthening of those standards. This test is also not a substitute for a strong environmental protection objective framing the target setting process. When the time for meeting standards falls due, again the accountability is weak. If targets are not met, no concrete action is required. The SoS must only set out steps to ensure standard is met ‘as soon as reasonably practicable’ (clause 5(5)).

6. Suggested amendments:

a. Include overarching environmental protection objectives for the Bill;

b. Amend clause 3(1) to require the SoS to take into account advice that must be sought from the OEP, key environmental regulators (including Natural England and the Environment Agency), the devolved administrations, and other relevant experts;

c. Delete clause 3(2);

d. Delete clause 3(3)(b);

e. Clause 5(5): ‘as soon as reasonably practicable’ should be amended to ‘as soon as possible’;

f. Clause 6(3): the significant improvement test should be disaggregated into discrete tests for different targets.

Environmental improvement plans (Part 1, Chapter 1)

7. EIPs are a welcome innovation however there is a baseline problem. The baseline for environmental improvement (albeit now ‘significant improvement’) is set as the first date of an EIP, which may give a very false sense of any improvement during the plan’s time period in relation to environmental problems that already reflect a high level of degradation.

8. Suggested amendment:

a. Amend clause 17(2) to add ‘in order to achieve a high level of environmental quality and resilience’.

Environmental principles (Part 1, Chapter 1)

9. Environmental principles, despite being policy ideas, have increasingly been developing legal roles in bodies of environmental law around the world. Those legal roles vary depending on the legal system involved (for example the Indian experience in constitutionalising environmental principles is very different from the New South Wales experience of weaving them into a range of environmental and planning statutes). However, all these developments reflect a process of legally entrenching environmental protection goals for the long-term in the creation and implementation of environmental policy. This is also the position that obtained under UK environmental law whilst the UK was an EU Member State, as key environmental principles, alongside environmental objectives (including a ‘high level of protection’), are constitutionalised in the TFEU (Article 191).

10. This trend of legal entrenchment is particularly important in the area of environmental policy, for at least three reasons. First, environmental issues inevitably cross over into other policy domains and thus risk being side-lined by other policy priorities. For this reason, the integration principle is particularly significant (Article 11 TFEU provides that ‘environmental protection requirements must be integrated into the definition and implementation’ of all EU policies and activities). Second, environmental problems are generally collective problems, often with no stakeholder group holding vested legal rights and direct economic interests to promote policies to protect the natural environment when environmental challenges arise. For this reason, concerted action by the state to address them is required. This supports a firm legally-based direction for environmental policy. Third, environmental problems often require medium to long-term policy action to address them adequately, and so require insulation from short-term shifts in policy.

11. The combined effect of clause 16 and clause 18(1) is to relegate the role of environmental principles to high-level policy-making, and to minimise as far as possible their legal effects, despite their statutory foothold. This provision does not fulfil section 16 EUWA’s aim to ‘maintain’ environmental principles from EU law. A ‘have due regard to’ duty remains weak, when the matters to which regard is to be had, and in what circumstances, are all determined in the policy statement.

12. Under EU law, environmental principles that underpin all EU environmental law and policy are united by a constitutional commitment to pursue a ‘high level of protection’ (Article 191(2) TFEU). As indicated above, the Bill does not prescribe any overall substantive goal or objective of environmental policy. This failure risks diminishing the level of ambition expressed by environmental principles. The requirement in clause 16(4) that the SoS must be satisfied that the policy statement on environmental principles will contribute to the improvement of environmental protection and sustainable development is a step forward in this respect, but it is not a clear signal of the high level of ambition that environmental principles should objectively reflect.

13. The relegation of environmental principles to high-level policy making is reinforced by the fact that individual decision-making is excluded from definition of ‘policy’ in clause 44. By contrast, in EU law, it is often at the level of individual decision-making (eg in a decision about planning permission, or whether to licence a particular product) that the principles have precise meanings, which might require legal interpretation and review.

14. The influence of environmental principles in policymaking is diluted by clause 16(3), which emphasises that other relevant considerations are to be considered in applying principles. This weakens the entrenchment of environmental protection in government policymaking and decision-making, and immunises their application from judicial review or any action by the OEP (which would be hard to bring in relation to high-level policymaking in any case).

15. The proportionality limit in clauses 18(2)(b) further undermines the role of environmental principles in policymaking. It is an overall limit on the impact of principles where they might require action ‘in any other way’ disproportionate to the environmental benefit. The opens the room for potentially difficult and contentious balancing of environmental concerns against other government pressures and priorities, with no clear guidance as to how this is to be done. This kind of balancing exercise is likely to be immune from judicial review and could lead to the most difficult environmental challenges, which require systemic change (such as air quality), being outside the scope of ambitious action based on environmental principles.

16. Furthermore, the limit of the precautionary principle ‘to the environment’ is different from the position in EU law where the precautionary principle has extended to the public health sphere in particular in light of the integration principle and common goal to maintain a ‘high level of protection’. This difference may create confusion in UK law as existing CJEU case law informing retained public health regulation will mean that the precautionary principle has a partial legal role in this policy area going forward, in a domain closely linked to environmental regulation.

17. Finally, the quarantining of environmental principles to this section of Bill, with no substantive links to the sections on target-setting and environmental improvement plans (EIPs) (Part 1, Chapter 1), the aims or goals of the OEP (Part 1, Chapter 2), not to mention the substantive provisions in Parts 3 to 8. Whilst the OEP can in theory bring action for failure to comply with clauses 16-18, any such action will be difficult to mount in the absence of severe dereliction of Ministerial duty. The divided structure of the Bill undermines the basic idea of environmental principles animating the spirit of environmental law and policy generally and systematically.

18. Suggested amendments:

a. Link the principles set out clause 16(5) to a ‘high level of protection’ and overall environmental protection objective for the entire Bill (see para 6(a) above);

b. Delete clause 16(3);

c. Amend clause 16(4) as follows: replace ‘The Secretary of State must be satisfied that the statement will’ with ‘The Statement must’; and replace ‘the improvement of environmental protection’ in sub-paragraph (a) with ‘a high level of environmental protection’;

d. Clause 17(b) should be amended to require the SoS to take into account advice sought from the OEP, key environmental regulators (including Natural England and the Environment Agency), the devolved administrations, and other relevant experts;

e. Delete clause 18(2)(b).

Non-regression (Part 1, Chapter 1)

19. EU environmental standards (which are contained in primary and secondary legislation) are retained currently in UK law through the mechanism of the EUWA, supported by consistent interpretation in line with pre-exit CJEU case law (including being informed by environmental principles). However, the objectives and principles of the treaties, which ensure that environmental standards are not diminished beyond a ‘high level of protection’, are not retained with equivalent legal effect (see paras 7-15 above), opening up the possibility of regression from environmental standards in the future.

20. Furthermore, as outlined above in para 4, there is a risk of new environmental targets being set which regress from current environmental standards over time.

21. Clauses 19 and 20 do not allay this risk of regression.

22. Clause 19 seeks to alert Parliament if a new law is to be introduced which would reduce the level of environmental protection in existing law. This is an unsatisfactory provision in three respects. First, it defines environmental law according to Ministerial discretion, rather than an objective definition (clause 19(1)). Second, it allows Bills that would lower levels of environmental protection nonetheless to proceed (clause 19(4)(b)). Third, ‘existing environmental law’ is defined to include any powers that might be (but have not been) exercised to provide environmental protection (clause 19(6)), and any laws that are not yet in force (clause 19(8)).

23. Clause 20 is a provision ostensibly geared towards ensuring that UK environmental law does not fall behind international standards of environmental protection. However, it simply requires the SoS to report ‘as soon as reasonably practicable’ after each 2-year period elapses about any developments in international environmental protection legislation which appear to the SoS to be significant. This is a weak requirement that risks delays and involves unnecessary ministerial discretion.

24. Suggested amendments:

f. Amend clause 19(1) to ‘This section applies where a Bill being introduced in either House of Parliament contains a provision which, if enacted, would be environmental law.’

g. Amend clauses 19(6)(a) and 19(8) so that they refer only to law currently in force (as ‘exiting environmental law’);

h. Amend clause 20(1) to ‘The Secretary of State must report on significant developments in international environmental protection legislation, indicating whether UK law will be amended in light of those developments (and if not, why not).’

a. Delete ‘as soon as reasonably practicable’ in clause 20(6)

Enforcement (Part 1, Chapter 2)

25. There are four conceptual weaknesses in the draft Bill in relation to enforcement, concerning (1) the scope of ‘environmental law’; (2) what amounts to a breach of environmental law; (3) who can be held to account; and (4) the use of judicial review principles as the basis for environmental review. In addition, remedies available in an environmental review action are weak. Overall, these factors significantly restrict the enforcement of breaches of environmental law.

26. The definition of ‘environmental law’ in clause 43 covers legislative provisions that are ‘mainly concerned with environmental protection’. Considering that environmental problems, and their causes, implicate many areas of regulation (including planning, transport, energy production, public health), unduly restricting this definition may remove key aspects of regulation relating to environmental protection from the scope of Part 1 and its enforcement provisions, undermining efforts to achieve high levels of environmental protection.

27. Clause 28’s definition of a ‘failure to comply with environmental law’ is redundant. There is no need to define what a breach of the law is. This definition unduly restricts the scope of unlawful activity that might subject to enforcement action under the Bill. In particular, it awkwardly defines failure to comply with environmental law as public law breaches that would be judicially reviewable in any case. It leaves out of its scope the very activities usually associated with environmental law compliance and enforcement activity, such as failure to achieve environmental standards.

28. On who can be held to account, the Bill indicates that any public body may be liable for a failure to comply with environmental law (clause 28 et seq). This contrasts with the enforcement mechanism of the European Commission that holds government to account as a whole for breaches of EU environmental law. The latter approach focuses minds and resources at the highest level, which is particularly appropriate for environmental issues with causes that are only adequately addressed by cross-departmental effort and require national strategic direction and/or resources. Even if failure to comply with environmental law is best remedied by action by a specific public body, this can be addressed by central government (whether through statutory direction or applying other levers of government), as was the position under EU environmental law. As the enforcement provisions are currently drafted, there is a distinct risk that public bodies without adequate strategic policy power or resources (such as local authorities) will be found liable for more systemic failures of environmental law.

29. In relation to the environmental review mechanism set out in clause 35, judicial review principles are fundamentally inappropriate to resolve many breaches of environmental law, which do not necessarily involve unlawful action by a public body but simply a failure to get to grip with a policy issue. As a tool of accountability in public law, judicial review is not designed to enforce the meeting of environmental standards and targets or other environmental requirements, nor to oversee ‘effective, proportionate and dissuasive’ penalties for failure to comply with environmental law (as much EU environmental law requires).

30. On remedies, sub-clauses 35(6)-(8) deprive the Upper Tribunal of any effective remedies, for the limited enforcement remit it has. A statement of non-compliances does not invalidate unlawful conduct, and remedies cannot cause substantial prejudice or hardship to third parties. This is likely to preclude remedies to prevent unlawful conduct in many routine environmental cases (eg where a permit has been granted unlawfully).

31. Suggested amendments:

i. Delete ‘mainly’ in clause 43(1)(a);

j. Delete clause 28(2);

k. Consider enhancing the responsibilities on the ‘relevant Minister’ (clause 30(10) and (11) throughout the OEP’s enforcement function section of the Bill);

l. Delete clause 35(5) and replace with fact-finding and decision-making powers;

m. Delete clause 35(7);

n. Delete clause 35(8)(a).

Air quality governance (Part 4, Schedule 11)

32. Schedule 11 revises the Environment Act 1995’s LAQM regime. Some amending provisions are welcome. In particular, the requirements to review the national air quality strategy regularly (proposed section 80(4A); the duty on the SoS to report annually on progress in meeting air quality objectives and standards (proposed section 80A); and the efforts to spread responsibility for air quality control to other public bodies (through the duty to have regard to the air quality strategy, and the creation of ‘air quality partners’: proposed clauses 81A and 85A).

33. However, some of the Schedule 11 amending provisions place responsibility on local authorities to achieve air quality outcomes beyond their sphere of competence (eg through enhanced duties on local authorities to ‘secure’ air quality standards, in proposed section 83A), even with the support of air quality partners. [1] This concern about misplaced legal responsibility is both because there is scope for air quality partners to avoid air quality obligations (eg proposed section 85B(3)), and because some air quality measures are best taken at the national level (eg investment in new air quality technologies, public communication strategies, common vehicle standards and transport solutions).

34. Suggested amendments:

o. Revise para 4: define an explicit list of public authorities for section 81A(1), rather than leaving them to be designated by regulations – this should include key regulators that have functions that affect air quality (eg Highways England, Planning Inspectors, Public Health England) and be a non-exhaustive list;

p. In para 6, replace ‘to secure’ with ‘with the aim of securing’ in sub-sections 85A(3), (4), (5) and (6);

q. In para 8, delete ‘as far as is reasonably practicable’ from section 85B(3)(b).

May 2020