The Environment Bill

By Theo Plowman

Theo Plowman is Policy Manager at the Landscape Institute.

Following a six-month hiatus as a result of COVID-19, the ground-breaking Environment Bill has now passed its Committee Stage, and we are now waiting for it to be reported back to the House of Commons for its third and final reading, where MPs will have a chance to propose further amendments. The Bill outlines measures intended to protect and enhance the UK’s environments in a world without EU oversight. Initially brought before the House of Commons in October 2019, the Bill suffered delays due to Brexit and the General Election, and most recently COVID-19.

The UK’s departure from the EU leaves an environmental ‘governance gap’. The Bill aims to ensure and maintain key EU standards, including measures to tackle air pollution, meet net zero by 2050, and restore and enhance nature.

The Bill includes several provisions of interest to our sector:

New green watchdog

The Office for Environmental Protection (OEP) will hold the government to account on environmental law and its Environmental Improvement Plan. The proposed body will enforce its powers through a new kind of legal instrument, an ‘environmental review’, that can force public authorities to take action if a court finds they have failed to meet environmental standards. The body will also examine the worth of new environmental policies and investigate potential breaches.

Environmental issues enshrined in law

As part of a new environmental governance system, the Bill outlines requirements for legally binding targets on air and water quality, biodiversity, and waste efficiency. These new targets replace those under the existing EU framework, which the UK has frequently failed to match – even finding itself in court in May 2018 1 for failing to deliver on air quality improvements.

Biodiversity net gain

If enacted, the Bill will enshrine in law the principle of biodiversity net gain. This would require a developer to offset and improve the value of any natural habitat damaged or destroyed as a result of development. Biodiversity net gain applies to almost all development in England, with 10% net gain to be achieved through a structured plan. National infrastructure projects covered by the Planning Act 2008, some small developments not requiring an environmental impact assessment, or those on brownfield land, will be exempt from the net gain policy. If a developer is unable to provide a 10% biodiversity gain in habitat creation, it must provide an offset on another piece of land, or purchase conservation credits from the Secretary of State.

There are, however, some lingering concerns:

Will regression be halted?

As acknowledged, there is no clear wording that ensures non-regression – simply the requirement for a biennial review of international environmental protection legislation. There is no requirement to align UK law with these ‘developments. The Bill as it stands implies a level of scrutiny, without going as far as outlining any method of tangible recourse. This is of course a concern. The Landscape Institute (LI), alongside other members of the Environmental Policy Forum 2 , are continuing to press for the principle of non-regression from EU environmental standards.

Will the new green watchdog have ‘teeth’?

The OEP will replace the EU in holding the government to account. Worryingly, though, the body remains tied closely to the government. The Secretary of State both sets the OEP’s budget and appoints its leadership; will it be able to bite the proverbial hand that feeds it? Some clauses within the Environment Bill now state that the Secretary of State ‘must have regard to the need to protect its independence’. However, on 21 October 2020, an amendment tabled by Environment Minister Rebecca Pow gave powers to the Secretary of State to issue and revise enforcement guidance to the OEP, including investigations into how a ‘public authority may have failed to comply with environmental law’. If ratified, this will effectively put the Government in a position to overrule environmental protections when it is convenient to do so.

What next?

The slow progress on the Environment Bill means the new Office for Environmental Protection will not be ready by 1 January 2021, a worry in the case of a no-deal Brexit. With current estimates suggesting it is unlikely to receive Royal Assent before Spring 2021, it is vital that the government prepares interim plans. Working alongside the Environmental Policy Forum, the LI will be pressing the government to ensure that interim arrangements are created on a philosophy of non-regression from EU environmental standards.

What the LI is seeking for the Environment Bill:

The Bill needs to:

1. Be founded on a philosophy of non-regression from EU environmental standards, embedding environmental principles and protections that are at least as strong as those we enjoyed as an EU member.

2. Outline a clear, robust target-setting process, laying the framework for ambitious and clearly measurable, legally binding air, water, and biodiversity targets.

3. Address concerns over the OEP’s independence and its ability to enforce appropriate standards.

4. Fully implement a sustainability skills agenda, equipping young people and employers to deliver a greener, cleaner economy.