Environment Bill 2020: Examining the latest amendments

On 21 October 2020, the UK government announced new amendments to the Environment Bill that included several changes relating to governance and nature in UK environmental law. RSK Biocensus Director Stephanie Wray considers here what these changes will mean for the industry.

The 2020 Environment Bill aims to embed environmental protections and recovery into UK law to make sure that we have a cleaner, greener and more resilient country for the next generation. Its objective is to drive significant environmental improvement by setting legally binding, long-term targets on air quality, water, biodiversity, resource efficiency and waste reduction, under a new domestic framework for environmental governance. But what do the latest proposed amendments mean for the industry? There are several revisions related to governance and nature.

The Bill aims to ensure that the new Office for Environmental Protection (OEP) that will scrutinise environmental policy and law has an enforcement framework that is as clear as possible for all parties and the OEP can focus its attention and resources on the most serious cases. One of the most significant amendments to the Bill gives power to the Secretary of State to issue guidance to the OEP on its enforcement policy, and another enables environmental reviews to be heard in the High Court instead of the Upper Tribunal. This latter change aims to align the legal forum for environmental reviews with that for judicial reviews brought by the OEP and third parties.

The power given to the Secretary of State to issue guidance is troubling, when the OEP is intended to hold government to account, replacing, as it does, the role of the EU. The intention that the OEP should “consistently focus its attention on the most serious cases, where it can deliver the greatest benefit” is good, however, a competent and adequately funded OEP would surely do this without direction from politicians. An assumption has also been made that only big, high-profile cases seriously affect the environment. I would suggest that it is the role of environmental experts to judge whether small-scale chipping away at biodiversity, or myriad small breaches of air quality limits, for example, amount to a cumulative problem worthy of investigation by the new regulator.

Further amendments to the Bill include the introduction of species conservation strategies: new mechanisms to safeguard the future of the species that are at greatest risk, and protected site strategies that will seek to achieve a similar result on protected sites. Notably, a new duty is imposed upon local planning authorities to cooperate with Natural England and other public bodies in the establishment and operation of the strategies. Where strategies are created, the relevant measures that they propose will be integrated into the local nature recovery strategies for the whole area. The government states that this approach will consider wider opportunities for enhancing biodiversity beyond the particular species and habitats concerned and collectively help to reverse the decline of nature across England.

The protected site strategies are welcomed, as it is currently hard to influence the damaging activities that are taking place outside site boundaries. This could be good news for developers as it may unlock development in areas containing Natura 2000 sites.

The protected species strategies and the duty to cooperate will certainly increase the uptake of the great crested newt district level licensing approach, which is being promoted by Natural England but has, so far, had low take-up from local authorities. This could be of benefit to developers in some circumstances and it may speed up development in areas where delays could have been caused by small numbers of newts. The success of these measures as environmental mitigation and compensation, however, will depend on the level of funding that the government commits to them. We look forward to seeing commitments on expenditure to support these initiatives.

Steph’s comments have also been published in the BBC article, ‘Fears over ‘weakening’ of UK green watchdog’. You can read full article here.