Environment Bill

Written evidence submitted by Professor Elizabeth Fisher, Professor of Environmental Law, Faculty of Law, University of Oxford (EB61)

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

1. I am Professor of Environmental Law in the Faculty of Law, University of Oxford. I am writing in my personal capacity. I am lead author of Fisher, Lange and Scotford, Environmental Law: Text, Cases and Materials (2nd ed, OUP 2019), author of Environmental Law: A Very Short Introduction (OUP 2017), and General Editor of the Journal of Environmental Law.

2. I gave oral evidence to the Environmental Audit Committee on the Draft Environment (Principles and Governance) Bill 2018 on 27 February 2019. I have also authored an article on the Draft Bill – ‘Executive Environmental Law’ (2020) 83 Modern Law Review 163-189.

3. This evidence focuses on the standard setting aspects of the environmental governance framework as set out in Chapter One of Part One of the Bill.

Executive Summary

· Leaving the EU requires a robust new legal architecture for standard setting for environmental law in England. That framework should ensure accountability and foster legal certainty (paras 4-7).

· Chapter One of Part One raises four concerns in this regard.

i. The relationship between retained EU environmental law and the different standard setting powers is not clear (para 11).

ii. The Secretary of State is vested with significant discretion in defining the overarching standards of environmental law with no general duty on the Secretary of State to protect the environment (paras 12).

iii. There is no explicit obligation to ensure decision-making is based on robust information (para 13).

iv. Many of the substantive norms of environmental law will be set out in guidance not law (paras 14).

· Suggested amendments (cl 15).

i. The relationship between different standard setting powers should be clarified.

ii. An overarching environmental protection duty should be placed on the Secretary of State.

iii. The environmental monitoring and consultation duties should be strengthened.

The Need for a Robust Framework for Environmental Standard Setting

4. Environmental problems can pose serious threats to ecosystems, human health, and economic growth. Governments plays an important role in setting the standards for environmental quality. These standards are usually quantitative or qualitative goals that should be achieved. They can also include the factors or principles to be taken into account in setting such goals and in making decisions. Rigorous standard setting requires institutional resources in terms of expertise and monitoring. As new scientific information emerges, standards also need to be revised.

5. The European Union has played a central role in setting environmental law standards. Directives set out standards and/or detailed frameworks for developing standards. Whatever one may think of the virtues and vices of EU environmental law, leaving the EU requires the creation of a new legal and institutional framework for standard setting.

6. Emerging scientific information makes it inevitable that environmental standards will evolve. It is important that the basis on which they evolve is as transparent and scientifically robust as possible. Any framework for standard setting needs to ensure rigorous, scientifically based, and accountable decision-making.

7. Any framework should also foster legal certainty. Legal certainty is particularly important for economic actors who are planning investment. For example, Section 1 of the Climate Change Act 2008 has provided a clear direction for future climate change policy.

Chapter One of Part One of the Bill

8. While current EU law is retained (ss 1 and 2 European Union (Withdrawal) Act 2018), the Bill creates a new framework for standard setting going forward. It does that by vesting the Secretary of State with power to set ‘long-term’ targets (cl 1), a duty to prepare ‘environmental improvement plans’ (EIPs) (cl 7) and a duty to ‘prepare a policy statement on environmental principles’ (cl 16).

9. Long term targets set out ‘objectively measurable’ (cl 1(4)) goals for the natural environment or people’s enjoyment of it. EIPs are plans for significantly improving the natural environment (cl 7(2)). The revision process for EIPs includes the setting of interim targets as part of a plan (cls 10 and 13). Ministers of the Crown must have ‘due regard’ to a policy statement on environmental principles when making ‘policy’ (cl 15(1)). Overall, Chapter One of Part One vests the Secretary of State with considerable power to set the goals, norms, and logic of environmental law.

10. There are four concerns with this framework.

11. First, while the Bill does set out the processes for creating and revising targets, EIPs, and policy statements, these processes are largely independent of each other. Exceptions are that the making of interim targets (cl 10) and annual reports for EIPs (cl 8(3)) require consideration of long term targets. Overall, the relationship between these different powers and duties could be far clearer, as could the relationship with retained EU environmental law and with the duties set out under cl 19. Over time, there is a serious risk that without a clearer legal relationship between these different powers and duties, the standards of environmental law will become fragmented and legally uncertain.

12. Second, Chapter One of Part One of the Bill grants wide discretion to the Secretary of State in passing long term targets, EIPs, and policy statements. The limits on discretion are relatively few and not always set out clearly. There is no overarching obligation on the Secretary of State to protect the environment in exercising any of the powers and duties in Chapter One of Part One. For example, the Secretary of State must be satisfied a long term target ‘can be met’ (cl 3(2)) and that it can be ‘objectively measured’ but no duty to ensure that a target will be adequate to ensure air or water quality.

13. Third, it is important that a legal framework ensures that decisions are underpinned by appropriate scientific information and expertise. Considerable discretion is given to the Secretary of State in deciding who to consult (cl 3(1), cl 17(2)) and what form environmental monitoring will take (cl 15(1)). This raises the risk that decisions will not be robustly based on scientific information.

14. Fourth, a valued feature of law is that it is ascertainable by those governed by it. Under the framework the Bill creates, the substantive standards of environmental law will not be in legislation. Targets are set out in delegated legislation (cl 1(1)) and EIPs and policy statements are forms of guidance. While there are processes for making and revising these different documents, those processes are not the same as legislative scrutiny. It will also be difficult for economic and other actors to determine what the standards of environmental law are. These problems are compounded by the risks identified above.

Suggested Amendments

15. Discretion and delegated legislation are inevitable features of most environmental law. What is important is that legislation provides a clear and coordinated framework for the exercise of that discretion. This not only ensures accountability but also aids legal certainty. The concerns raised above identity risks created by the current provisions of Chapter One of Part One of the Bill. Three suggested amendments may alleviate some of these risks.

i. The inclusion of explicit provisions which set out the legal relationship between long term targets, EIPs, policy statements, retained EU environmental law, and the cl 19 duty.

ii. The inclusion of an overarching legal duty on the Secretary of State to protect the environment in exercising any of his duties or powers in Chapter One of Part One. A template for that provision could be cl 22(1) that relates to the Office for Environmental Protection. For example:

The principal objective of the Secretary of State in exercising his functions in this Chapter is to contribute to-

(a) environmental protection, and

(b) the improvement of the natural environment.

iii. The strengthening of the consultation and monitoring provisions by revising cl 3(1), cl 17(2), and cl 15(1).

A suggested cl 3(1)

Before making regulations under section 1 or 2 the Secretary of State must consider:

(a) Relevant expert and other scientific information

(b) Any information obtained pursuant to environmental monitoring under section 15.

A suggested cl 15(1)

The Secretary of State must make adequate arrangements for obtaining such data about the natural environment for the purpose of monitoring-

A suggested cl 17(2)

(a) The Secretary of State must consult in relation to the draft statement and take into account any information obtained pursuant to environmental monitoring under section 15.

19 June 2020