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Heading for the green Brexit

Following consultation in 2018 and an announcement in the Queen’s Speech, the government has published the long-awaited Environment Bill. Angus Evers, real estate partner and head of environment at Shoosmiths, takes a look at the detail.

“The government describes the Bill as “signalling a historic step change in the way we protect and enhance our precious natural environment”, helping to ensure that environmental protections are maintained and improved after Brexit.

“The first part of the Bill contains few surprises, having been the subject of a consultation in 2018 and pre-legislative scrutiny as a draft bill earlier in 2019. Its main purposes are to enshrine environmental principles into domestic law and create the Office of Environmental Protection (OEP) to hold public authorities to account over environmental standards after Brexit, when the government will no longer be subject to the European Commission’s enforcement powers for non-implementation of EU environmental laws. It will also put the government’s 25 Year Environment Plan on a statutory footing and require the government to set long-term targets in four priority areas – air quality, water, biodiversity, and resource efficiency and waste reduction.

“Some groups are disappointed that the OEP will not have the power to fine public authorities (including the government) for breaches of environmental law, but it will nonetheless have powers to issue ‘decision notices’ of non-compliance and bring legal proceedings in the Upper Tribunal through a new procedure called ‘environmental review’, both of which are potent tools in their own right. In serious cases the OEP will be able to intervene in third party judicial review and statutory review proceedings. The OEP’s remit has also been extended to cover climate change legislation and hold the government to account on its commitment to reach net zero emissions by 2050.

“The remaining parts of the Bill cover waste and resource efficiency, air quality, water, and nature and biodiversity. These have not been the subject of consultation or pre-legislative scrutiny, so there was no indication of what they would contain beyond the broad subject areas.

“The waste and resource efficiency measures cover extended producer responsibility, a consistent approach to recycling (including waste separation requirements), tackling waste crime, deposit return schemes, more effective litter enforcement and charges for specified single use plastic items. Waste crime may increase if waste exports become more difficult after Brexit, but what is really required is more resources for regulators, not more legislation.

“To help improve air quality, the Bill contains enhanced powers for local authorities to tackle emissions from burning coal and wood. The Bill also empowers the government to mandate recalls of vehicles which do not meet relevant legal emission standards, closing a loophole in the law highlighted by the use of “defeat devices” by some vehicle manufacturers.

“To secure long-term, resilient water and wastewater services the Bill includes a framework including powers for Ofwat to direct water companies to work together to meet current and future demand for water, making planning more robust, and ensuring the maintenance of water supplies.

“Finally, the nature and biodiversity provisions of the Bill will implement mandatory biodiversity protections into the planning system (by requiring a biodiversity gain plan to be submitted and approved before development commences), create a system of local nature recovery strategies and give communities a greater say in the protection of local trees. The Bill also creates a framework for conservation covenants - voluntary, long-term, legally binding private agreements between landowners and responsible bodies to conserve natural or heritage features of land.

“Most of the Bill’s provisions cover England only, as environmental policy is a devolved matter, although some of the OEP’s powers will also extend to Northern Ireland. Scotland and Wales are pursuing their own policies in a number of areas.

“While the Bill may have its critics for not going far enough, it goes a long way towards allaying fears that environmental laws would be axed after Brexit. The bigger question, though, is whether the current government will be able to gather enough cross-party support in Parliament to bring it into law.”

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