SHE Matters: Environment Bill Recap

As many of our readers will be aware, the Environment Bill (the “Bill”) is currently making its way through the House of Lords, with four sessions of parliamentary debate to take place over the two weeks beginning 6 September 2021. The Bill is currently in a state of “ping pong” between the Houses over Lords amendments which are apparently unacceptable to the Government. These include amendments which would effectively force the Government to accept that there is a Climate and Biodiversity “emergency”, In the light of this, doubt has been cast over whether the Bill will receive Royal Assent in time for the COP. However, since the Bill is at least nearing the end of its journey through Parliament, this article provides a brief remainder of its aims and its potential impacts on UK environmental law.

The Bill proposes to create a legislative framework for the future transformation of the UK’s environment. The Bill aims to put in place powers for the UK to set its own environmental laws following the country’s departure from the EU. The Bill acts as a key vehicle for delivering the UK Government’s 25 Year Environment Plan, which set out goals for significantly improving the environment within a generation.

Once passed, the Bill will give the Government the ability to establish more detailed secondary legislation which may diverge from current EU environmental legislation in the same areas, and impose different or more strict obligations in the UK compared to the position in the EU. On that point, we note that in statements accompanying the Bill the UK Government has previously insisted that the UK will not be bound by future EU green rules and may even ‘go beyond the EU’s level of ambition’ on the environment.

Some aspects of the Bill that we consider to be particularly significant are summarised below.

Part 1: Environmental Principles, targets and improvement plan

TARGETS

Part 1 contains provisions to require the Government to set both long-term and short-term targets in relation to the status of the natural environment and people’s enjoyment of it. It requires the Government to set, by October 2022, at least one long-term target in each of the priority areas of air quality, water, biodiversity, and resource efficiency and waste reduction.

From 31 January 2023, the Government must also set at least one interim target in respect of those same matters (achievable within five years from being set), which must make an appropriate contribution towards meeting the long-term target.

The level that these targets are set at will directly influence the detailed legal requirements that follow the Bill via secondary legislation.

THE OEP

Part 1 also sets out the requirement to create a new, statutory and independent environmental body, the Office for Environmental Protection (“OEP”). The OEP will be able to hold the Government to account on environmental law and its Environmental Improvement Plan (the first one being the 25 Year Environment Plan, referred to above).

Part 3: Waste and resource efficiency

EXTENDED PRODUCER RESPONSIBILITY

Provisions in this part of the Bill allow for producer responsibility obligations to be imposed in relation to the reuse, redistribution, recovery and recycling of products.

These provisions appear set to both reform the existing producer responsibility schemes and introduce schemes for additional products in the future.

RESOURCE EFFICIENCY OF PRODUCTS

The Bill will allow the Government to establish obligations regulating the resource efficiency of products, in a similar vein to the EU Ecodesign Directive and its implementing measures (although the Bill does not limit these provisions to energy-related products).

Future regulations made under these powers may place obligations on manufacturers and producers to provide extensive information about the resource efficiency of their products and/or stipulate resource efficiency requirements that products will need to meet.

WASTE

New rules are proposed for the separate collection of waste through amendments to the Environment Protection Act 1990 (“EPA”). The collection of this waste must meet certain conditions, including that recyclable waste is collected separately from non-recyclable waste, and further that separately, recyclable waste within different “recyclable waste streams” must also be collected separately.

Other proposed clauses under this part of the Bill make provision for the future creation of new obligations in respect of electronic tracking of waste.

Other proposed amendments to the EPA include empowering the relevant authorities to put regulations in place which: restrict activities relating to hazardous waste, allow waste regulation authorities to give directions with respect to hazardous waste, and require registration of hazardous waste controllers or places where hazardous waste activities are carried out.

TRANSFRONTIER SHIPMENTS OF WASTE

In respect of the movement of waste, the Bill allows broad regulations to be made in future prohibiting or restrict waste imports and exports, as well as the loading and transit of waste for export out of the UK.

Part 5: Water

Part 5 of the Bill sets out provisions relating to water resources management. Among other things, these provisions allow for changes to be made to the circumstances in which a licence to abstract water from the environment can be revoked or varied without paying compensation, a statutory duty for water companies to develop long-term drainage and sewerage management plans, and powers to amend the land valuation process for internal drainage board.

Part 6: Nature and biodiversity

Part 6 makes provision for biodiversity net gain to become a new general condition of all planning permissions in England (subject to certain exceptions). The objective is that the biodiversity value, expressed in biodiversity units, attributable to the development exceeds that which existed before development by at least 10%.

This part also contains provisions to address illegal deforestation in supply chains. See our Summer 2021 publication of “Carbon Matters” for more detailed discussion of these “Forest Risk Rules”.

Part 7: Conservation covenants

The Bill provides for Conservation Covenants, which are voluntary, legally binding private agreements between landowners and responsible bodies, designated by the Secretary of State, which conserve the natural or heritage features of the land, enabling long-term conservation. They can bind subsequent owners of the land, so have the potential to deliver long-lasting conservation benefits.

Part 8: Miscellaneous and general provisions (including REACH)

The final provision we wanted to flag gives the Secretary of State the power to amend UK REACH. As with most EU legislation, REACH has for now been retained in UK law post-Brexit, largely unchanged at present. However, part 8 allows for UK REACH to be amended going forward, provided that such amendments are consistent with the aim and scope of UK REACH.

Timing

It is worth noting that not all parts of the Bill will come into force on the day on which the Act is passed, but will instead be phased in over the following months/years. Of the measures highlighted above, only the ability to amend UK REACH is intended to apply immediately. Some other provisions are set to come into force 2 months after the Bill is passed into law, including in respect of responsibility for disposal costs, resource efficiency information and standards, electronic tracking of waste, and water abstraction. All remaining provisions will come into force only upon the passage of regulations appointing a specific day that this should occur.

Even the provisions that come into force quite soon (early 2022 if the Bill still becomes law in the fourth quarter of 2021 as planned) are themselves only framework laws, so for the most part no practical change will be felt until later when secondary legislation is made under those powers.