The Environment Bill is key legislation for providing the direction of environmental law now that the UK has left the European Union and the transition period has ended. Despite its criticality, the Environment Bill has had of a ‘stop-start’ journey through Parliament – with its speed described as ‘glacial’ – while MPs have wrestled with the numerous issues related to the COVID-19 pandemic. It was initially expected to be passed into law last year, but it is now only expected to receive Royal Assent in Autumn 2021 with formal implementation in Autumn 2023.
The Bill has been subjected to consistent criticism concerning its lack of ambition and doubts that it will achieve its intended purpose. This blogpost focuses on two particular areas of concern within it: the creation of the Office of Environmental Protection (OEP) and biodiversity.
Office for Environmental Protection
The OEP is an objective and institutional body that will contribute to environmental protection and the improvement of the natural environment.1 The OEP will be key in holding public bodies to account for violations of environmental law.2 In the event of a violation, the OEP will have the power to issue, for example, ‘information notices’,3 ‘decision notices’4 and apply for an environmental review.5 These powers appear to be procedural in their nature, but do allow for remedies to be granted other than damages.
The OEP will be launched on an interim basis in July 2021. The functions of the Interim OEP are:
- Produce and publish an assessment of the government’s progress in implementing its 25 Year Environment Plan;
- Develop the OEP’s strategy, including enforcement policy;
- Receive complaints from members of the public about failures of public authorities to comply with environmental law;
- Take decisions on operational matters such as staff recruitment, accommodation and facilities; and
- Determine approaches for how the OEP will form and operate.
These functions will be key in understanding the extent to which initial criticisms of the OEP have been and will be addressed. These criticisms have included concerns that the EU was a key driving force in enforcing environmental law within the UK, and that the OEP will be a body to facilitate the government ‘marking its own homework’ in relation to environmental law breaches.
Our interactions with and impacts on the environment are increasingly (and worryingly) clear, as we enter an unprecedented age of biodiversity loss and environmental degradation. The UK has, arguably, ‘led the world’ in depleting nature and clearly the UK is thus not going to escape its consequences. It is therefore unsurprising that biodiversity is one of the key environmental areas covered by the Environment Bill – specifically by Part 6 and Schedule 14.6 The Bill includes a general duty ‘enhance’ biodiversity in addition to conserving biodiversity, as a result of an amendment to the Natural Environment and Rural Communities Act 2006.7 But, there is a lack of a definition over what exactly ‘enhancing biodiversity’ would comprise.
For each area of concern, and therefore also biodiversity, long-term and legally-binding environmental targets are to be implemented. Achieving targets and implementing supporting policies will require resources. It, however, seems that the expected budget allocations for biodiversity are comparatively small compared to other priorities.
Post-lockdown and post-pandemic there is ample opportunity to transform the current system of environmental protection. The ‘enhancement’ (whatever this exactly is) and conservation of biodiversity should be integrated in any investments under the ‘build back greener’. Even though this is increasingly recognised, there is so far little evidence of such transformative opportunities being taken.
Overall, there are significant challenges ahead. Given the lofty statements and promises that have been made, the Environment Bill does not appear to provide the much-needed solid and concrete foundation. We will also have to see whether the set targets are sufficiently ambitious. Prime Minister Boris Johnson is a self-proclaimed advocate of a green transition and the benefits brought by a ‘more resilient economy’, but his Government’s track record of turning words into environmental actions is lacking. A Government pledge to low-carbon activities included just £2bn promised for cycling infrastructure (amounting to just under 5 miles per major city). Simultaneously, only public anger about coal mine plans in Cumbria has likely prevented approval of the mine for the time being, while the Government has continuously emphasised its commitment to mitigating climate change (in which coal has no role to play). There thus seems to be little environmental leadership from the UK Government, where so much is needed given the current multifaceted and complex environmental challenges.
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- Environmental Bill, s 22(2).
- Environment Bill, s 30.
- Environment Bill, s 34.
- Environment Bill, s 35.
- Environment Bill, s 36.
- Other sectors covered are: water; conservation; air quality; and waste and resource efficiency.
- Environment Bill, s 95.