Background to the Act
Prior to joining the EU, the UK had a reputation for poor environmental protection and being the ‘dirty man of Europe’. The standards of the EU, egal pressure and threats of unlimited fines forced Britain to take more stringent measures when it comes to environmental protection, which, in turn, has gradually improved the UK’s poor reputation.
During Brexit negotiations, the EU requested ‘dynamic alignment’ with their environmental regulations, which would have required the UK to keep in line with any post-Brexit EU regulations. This was rejected and a ‘level playing field’ was agreed instead, provided for in the UK/EU Trade and Cooperation Agreement. The TCA covers a number of laws, which includes an environment and climate chapter and requires a ‘non-regression’ of environmental protection from the UK. The requirement for a level playing field means that the UK shall not try to undo, either by legislation or lack of enforcement, standards that were in place on December 31st 2020 and any targets that were set later than this date will continue to be binding.
In 2017 Michael Gove, as Environment Secretary, committed to a ‘Green Brexit’ assuring the nation that environmental standards would not be lowered as a consequence of leaving the EU, claiming that Brexit offered a historic opportunity to review their ‘policies on agriculture, on land use, on biodiversity, on woodlands, marine conservation, pesticide licensing, chemical regulation, animal welfare habitat management, waste, water purity, air quality and so much more’.
Michael Gove gave credit to the EU for enabling Britain to create cleaner beaches, better-protected habitats and effectively regulated pesticides but also claimed that the EU was not always been good for the environment and that the UK’s Climate Change Act is evidence of the UK’s ability to bring their own strong legislation to protect the environment, separate of the EU.
Environmentalism in the Conservative Party dates back to the late 1980s, with Margaret Thatcher addressing the UN general assembly saying, ‘mankind and his activities are changing the environment of our planet is damaging and dangerous ways’. Since then, the Conservative Party’s relationship with environmentalism has had some media highs and lows, but gradually the public perspective on conservative environmentalism has improved.
In 2005, when David Cameron came into power, he pledged for the green government ever and during his time in power, the UK’s fourth Carbon Budget and a Green Investment bank were signed off and the Energy Act 2013 was passed.
In 2018, Theresa May’s government announced the ’25 Year Environment Plan’ which set out how they intended to improve air and water quality, increase plant and wildlife protection, reduce waste production and risks of harm from environmental hazards, use natural resources more sustainably and efficiently, conserve and enhance the natural environment, manage exposure to chemicals, enhance biosecurity and to combat climate change.
In the 2019 election, Boris Johnson pledged to reach net-zero emissions by 2050, a bold promise which has resulted in the UK having some of the most ambitious climate policies in the world, including: ending the sale of combustion-engine vehicles by 2030, zero-carbon electricity by 2035 and boosting investment in clean home heating, hydrogen, nuclear power, and green vehicles. This is the same year the Environment Bill was first introduced to Parliament.
The Environment Bill had its first reading in January 2020 and received a carry-over motion, beginning the Reporting Stage in May 2021. On the 9th of November 2021, the Environment Bill received Royal Assent and The Environment Act 2021 came into force.
The Environment Act is the new framework of environmental protection, providing new legislation, rules, and targets, separate of the EU. It provides new powers to set new binding targets, establishes new legal framework for significant reforms, acts as a vehicle for a number of DEFRA policies and creates a number of statutory duties and restrictions.
- Main Provisions of the Act:
The Environment Act is an extensive piece of legislation with 149 articles and 14 schedules. The main clauses of the Act provide:
- Legally Binding Targets
One of the cornerstones of the Environment Act is the implementation of legally binding targets. These provided the government and relevant bodies to set binding environmental targets and the relevant instruments and rules to meet said targets to improve fundamental areas of environmental protection. The binding target provision allows for consistent, measurable progress.
The current binding targets that the UK government is working towards include:-
The ‘Fine Particulate Matter’ or air quality target provides concentration targets for harmful pollutants. The legally binding targets are the ‘annual mean concentration target’ which is the reduction of harmful pollutants in areas where concentrations are the highest and the ‘population exposure reduction target’ which is the reduction of the average exposure across the country. These provisions strengthen the existing air quality commitments under the Clean Air Strategy 2019 with a maximum concentration of 10 μg/m3 and a reduction of 35% in average population exposure by 31st December 2040.
The ‘Marine Protected Areas’ target supports the increase of biodiversity and requires not less than 70% of protected features in marine protected areas to be in ‘favourable’ condition and the remaining protected features to be in recovering condition by the 31st December 2041.
The protected features are the marine habitats, species, geological features, geomorphological features, and assemblage specified for each of the marine protected areas.
The Water target complements the existing targets in the 25 Year Environmental Plan and contains targets in four different identified areas to improve water quality and biodiversity.
The targets aim to improve levels of nutrient pollution from agriculture by reducing nitrogen, phosphorus, and sediment pollution from agriculture into water by 40% by 31st December. The wastewater pollution target is a reduction of phosphorus loadings from treated wastewater by 80% by 31st December 2038.
The abandoned metal mines target is to halve the length of rivers polluted by harmful metals from abandoned mines by 31st December 2038. The water demand target is to reduce the use of public water supply in England per head of population by 20% by 31st March 2038.
The Residual Waste target requires that by 31st December 2042, the total mass of residual waste for the calendar year does not exceed 287 kilograms per head of population in England, equating to a 50% reduction.
Notably this target excludes major mineral wastes and is largely focused on recycling, preventing waste from occurring and reducing plastics.
The biodiversity target seeks to halt the decline in species abundance by 2030. It also aims to reverse the decline in species decline, reduce the risk of species extinction and to restore or create in excess of 500,000 hectares of wildlife-rich habitat by 2042.
The Woodland and Trees Outside Woodlands target will place a legal duty on the Secretary of State to increase canopy cover to 16.5% of land area by 2050. This target will contribute to other objectives of the Act, providing thousands of hectares of habitat, supporting species recovery, improving air quality and water courses, and contributing to meeting the net zero commitment.
- Waste and Resource Management
The Act places emphasis on waste management and focuses on sustainability and resource efficiency. At the core of the Act’s waste management strategy is the concept of a ‘circular economy’ whereby the aim is to keep products and materials in ‘circulation’ or use as long as possible. This relies on efficiently using resources and producers being responsible for the entire life cycle of their products, including disposal.
The Act provides that all waste must be separated, it increases the scope for single-use plastic charges and the provisions of the Act have now allowed for a complete ban on polluting single-use plastics from October 2023.
Additionally, the strategy looks to tackle inconsistencies in the recycling process by standardising collections and incentivising deposit returns schemes and to tackle waste crime by introducing electronic waste tracking and enforcing stricter penalties.
- Air Quality
The government considers poor air quality to be “the largest environmental risk to public health in the UK”. The Act brings air quality provisions in line with WHO guidelines and has amended the Local Air Quality Management Framework Requirements. The Act provides local authorities with greater powers in smoke control areas and smoke from chimneys will not be allowed in these areas.
The Secretary of State will be able to make regulations for the ‘compulsory recall’ of any products that do not meet the relevant air quality standards. The recall mechanism will act as a deterrent for manufacturers and encourage them to ensure their products are environmentally compliant.
- Water Management
The Act has four main objectives in terms of water: water quality standards, water abstraction and usage, river basin management and flood and coastal erosion risk management.
The Act makes aims to improve collaboration between water companies through integrated water resources management and water management plans. It places a statutory duty for the management planning of drainage and sewerage and will modernise the water and sewage licence system.
In addition to improving the water and sewage licence system, all users extracting significant quantities of water must obtain a permit and all abstraction licences are subject to periodic review. This provision will encourage water efficiency and recycling and harvesting of water.
- Biodiversity
In an addition to the biodiversity net gain target, the Act provides the Local Nature Recovery Strategies which aims to identify important habitats, opportunities for restoration and details plans to increase investment and action in local environment projects, creating a coordinated approach to conservation and enhancement of the natural environment.
Furthermore, the Act makes provision for biodiversity gain in planning which applies to applications under the Town and Country Planning Act and the Planning Act. This means developers are required to ensure habitats for wildlife are enhanced and there is a 10% increase in habitat value for biodiversity compared with the pre-development baseline.
- Conservation
Supplementary to the biodiversity strategy, the Act makes provisions for conservation covenants which provides a mechanism for any biodiversity gains to be secured and managed. The covenants are voluntary agreements between landowners and conservation organisations to undertake or refrain from specific actions on their land, in a bid to help preserve natural or heritage features and ensure long-term conservation outcomes.
- Trees and Forests
The Act also provides for much greater protection and conservation of trees and forests. The Act enhances the powers of enforcement for the Forestry Commission to reduce illegal tree felling and there will be stricter control on felling and felling licences.
The Act provides that anybody using a forest risk commodity, or a product derived from a forest risk commodity, must comply with the relevant local laws from the country where the commodity originated.
- The Office of Environmental Protection
One of the most notable provisions of the Act is the creation of the Office for Environmental Protection (OEP). Having left the EU and having set themselves many ambitious targets, the UK Government needed to establish a mechanism of accountability.
In November 2021, the OEP was legally created and became the UK’s environmental watchdog. The OEP is an executive, non-departmental body, enforceable in England and Northern Ireland, intended to contribute towards the protection and improvement of the environment. The Act provides that the department must stay objective and impartial and act proportionately and transparently.
The OEP’s mission is ‘protect and improve the environment by holding government and other public authorities to account.’ The department has the power to hold to account government departments and ministers, regulators, local authorities, and some private bodies. It is able to do so under four main provisions.
The first provision of the OEP is scrutinising Environmental Improvement Plans and Targets. This involves monitoring the progress of the Plan and the Targets and preparing annual progress reports. The reports must include recommendations for improvement and the consideration of adequacy.
The second and third provisions are the scrutinising and advising on Environmental Law. They have a duty to monitor and report on the implementation of environmental law, extending to any environmental matter, any time. And they are also able to advise government on environment issues and laws and provide a response to any draft legislation or white papers.
The final provision is the enforcement against failures to comply with environmental law. They have enforcement powers for failures by public authorities to comply with or consider environmental law.
In addition to these powers, people may take complaints to the OEP where they believe that a public authority has failed to comply with environmental law. In response to complaints, the OEP must investigate and report on the matter where appropriate.
- The Environmental Principles
Another key provision of the Act is the continuing power to create new instruments and laws, in order to achieve the Targets. The Act sets out the five principles of which ministers will consider when making environmental policies.
The five principles are integration, prevention, rectification at source, polluter pays and precautionary. The Integration principle requires considering whether the policy has the potential to cause a negative environmental effect. The Prevention principle is the promotion of policy design that presents environmental damage before it occurs. Rectification at Source is identifying the source of environmental damage and addressing it at its origins. The Polluter Pays principle requires the costs of the pollution to fall on the polluter rather than the sufferer, and the Precautionary principle provides that, where there is plausible evidence of a risk but there is a lack of scientific certainty, policymakers shall still act for the sake of precaution.
These principles have been internationally recognised as successful benchmarks for the protection and enhancement of the environment, also being implemented by the EU.
- The 25 Year Environment Plan
In 2018, the government published their ’25 Year Environment Plan’ which set their approach to managing the environment and their goals and policies for the 25-year trajectory. The goals set out in the 25 Year plan coexist with those implemented by the Act. The 25-year plan is designated as the first environmental improvement plan and the government must review the plan every five years to ensure progression towards the ten apex goals set out in the original plan.
In 2023 the government published their first revision of the 25-year plan, the ‘Environmental Improvement Plan 2023’. The improvement plan sets out the progress that they’ve made in the last five years and how they intend to continue improving the environment.
The improvement plan also takes into consideration all of the Strategies of the Act but unfortunately it primarily only covers England as environmental policy has become a devolved matter and Scotland, Wales and Northern Ireland are able to make their own environmental regulations and policies.
- Analysis and Review
The Environment Act 2021 came in with big promises and even bigger ambitions. The Act clearly ascertains the environmental goals of the UK however legal commentators, scholars and environmentalists all have cited scepticism and doubt about the enforceability, the effectiveness of the provisions and some ‘glaring omissions’ of the Act.
In 2014 the EU began infringement proceedings against the UK for failure to meet its air quality targets. In 2018 the CJEU decided to continue to oversee the case. Separately, private judicial review has been brought against the UK for a continued failure since 2010. One of the biggest concerns is that post-Brexit legislation will weaken environmental protection as the current Act creates a huge governance gap. Whilst the Act does establish the OEP, proposed amendments to strengthen the independence of the OEP were voted down despite arguments that previous scandals had shown that the government was unable to follow its own rules. Ruth Chambers, senior parliament associate for Greener UK Coalition said that while they welcome a much-strengthened Environment Act, it cannot be viewed as ‘the world-leading legislation’ that was promise and that environmental protection is less than before, with gaping holes in how the key principles will apply to government decisions.
Lord Krebs fought to give the OEP complete discretion and explicit independence and asked for its independence to be explicitly spelled out. Lord Goldsmith verbally committed to operational independence of the watchdog, but this was not explicitly provided for, resulting in much disappointment from environmental charities.
The Act provides that in some circumstances granting a remedy to address behaviour or environmental damage is possible even where it may cause substantial hardship to the rights of a third party. Whilst this is significantly important, Lord Krebs has ascertained that this still leaves the odds stock in favour of commercial interests.
One of the strong points of the Act is the Polluter Pays principle. This principle means that where possible the polluter will pay for the cost. The intention is that it will incentivise people to avoid causing environmental damage in the first place. In principle is it an excellent theory and would make great application on large-scale companies and polluters, a purist application could be extremely detrimental to our farming community. Unfortunately whilst it places a duty for organisations to ‘pay regard to’ the principles, it has entirely exempted the Ministry of Defence and the Treasury from them at all. Baroness Parminter described this as a ‘gaping hole’ and the first advice from the OEP strongly reiterated the importance of all government departments fully taking account of the statement on environmental principles.
Although sewage pollution provisions were made stronger through the stages of the bill, with new duties for the operation of storm overflows, water quality and sewage disposal works, the government’s legal duty to “progressively reduce the impacts of sewage pollution from storm overflows” only asks for a reduction rather than being stopped altogether. Critics say this weakens the existing rules on sewage pollution, which is quite a hot topic, given the ongoing proceedings relating to sewage pollution breaches in the UK.
The Act introduces extended producer responsibility also known as the ‘circular economy.’ This enables authorities to make regulations that burden manufacturers with the cost of disposal for the products they produce. This shifts some of the costs from the authorities and theoretically should encourage manufacturers to be mindful of the environmental impact of their products and their recyclability. However, in a capitalist economy, this may likely result in higher prices and a have an unfortunate impact on consumers and the current cost of living crisis. Furthermore, products will be required to carry resource efficiency labels. This is a great way of giving consumers informed choice but will likely be used by companies to leverage prices and further play into the financial privilege of environmentally friendly options.
The government’s single use plastic ban is set two come into force in just a matter of weeks. This ban will see all pollutant single use plastics banned, in addition to charging for the remaining, accessible single use plastics. While the original carrier bag charge initiative caused some discontent among the public, it has seen the annual usage of carrier bags in the UK fall by 97%. As a result of the charge, the average person buys around three single use carrier bags per year, compared to 140 bags per year in 2014.
The dramatic drop in carrier bag usage is incredible and a mechanism to eradicate single use plastics is desperately needed, however the legislation and the ban have failed to consider three things. This will likely further increase costs for customers and costs for small business, it has a huge potential to increase deforestation as the most common replacement for plastic is cardboard and paper and what the unintended environmental impacts may be. Without thorough investigation and exploration of alternatives, we may see an increase in environmental footprint to resource alternatives and an increase in monoculture farming, which would reduce biodiversity.
When it comes to the legally binding targets, few are impressed, and many have cited concerns at the deadlines being so far away. The Air Quality target is set for 2040 despite studies by King’s College London and Imperial College London showing the target could be achieved by 2030. The Water Quality targets lack focused outcomes, and the species decline targets lack protected sites.
The deforestation provisions does very little in terms of actual prevention of deforestation. The Act provide that supply chains for items which come from deforestation must comply with the local laws of origin. The concern with this is that one third of global deforestation is considered legal under their local laws and that proportion is set to drastically grow as Brazil and other authorities are further relaxing and legalising deforestation laws.
In conclusion, the targets of the Acts are weak and lack true means of achievement. Many of the provisions may look good on the surface but when you examine the potential consequences are damaging in other airs and do not achieve an overall improvement for the environment.
Unfortunately, the government have a history of not taking climate survival, environmental protection, and scientific findings seriously enough, which is evident in their actions and decisions. This shaky legal framework would appear as a self-pat on the back for a job done poorly. A serious review of the provisions of the Act, the Targets, and the mechanisms for achievement, coupled with an extensive and prolonged consultation period with scientists and environmental agencies is vital to transform the Act into the revolutionary, word-leading vehicle it promised to be.
Written by Monique Crouch LLB LLM GCILEx GradCG
