The long-awaited Environment Act 2021 (the “Act”), was hailed by the Environment Secretary as “the most ambitious environmental programme of any country on earth…setting an example for the rest of the world to follow”. But does it live up to the hype?
The Act is broken down into seven key parts:
Historically, environmental law, standards and principles have primarily derived from European Union (EU) and International law. With the UK exiting the EU it was essential to introduce a legal framework for environmental governance at UK level.
The Act transposes five internationally recognised environmental principles into UK legislation:
The principles are notoriously fluid, making them difficult to enforce. In recognition of that, the Act imposes a statutory duty on ministers (but not all) to have “due regard” to the principles when formulating policy and making decisions.
Whilst the integration of the principles is a step in the right direction, further detail is required to ensure that the Act’s aims are achieved. The secondary legislation consultation by DEFRA closed on 11 March 2022 and further details is expected to follow.
The Act requires the Sectary of State to set at least one long term target in each of the four key priority areas: air quality; biodiversity; water; and waste. This will be achieved by a set of measures targeted at UK businesses and supply chains.
The Act also targets four key areas for the recovery of habitats. Further, it empowers ministers to set legally binding long-term targets, the progress of which they are required to report to Parliament.
A central feature of the Act is the introduction of the Office for Environmental Protection (the “OEP”).
The OEP is independent from government and is, essentially, an environmental watchdog charged with monitoring and reporting on the compliance of government, its agencies and other public bodies in relation to environment laws. In June 2022, the OEP published its strategy and enforcement policy following a consultation in January 2022. The policy emphasises that OEP’s role is to investigate the most serious breaches where it can make the most difference as opposed to investigating every alleged breach.
The OEP also has an enforcement role, which is required to plug the gap of governance in the UK following its exit from the EU and the consequent loss of the enforcement powers of the European Commission. However, the OEP will not replace the Environment Agency, which will continue to regulate private actions.
The Act confers various powers on the OEP against public authorities, including information notices, decision notices and the ability to apply to the Court for an “Environmental Review” or Judicial Review.
Some businesses may seize the opportunity to level the playing field by whistle-blowing to the OEP on competitors that have previously secured market advantages by cutting corners.
The Act has far-reaching implications to the way in which waste is dealt with. This is in line with both the ambition to have more circular economy and the UK’s 25-year plan to improve the natural environment by eliminating avoidable plastic waste by the end of 2042.
New powers are introduced, and existing legislation amended (for example the Environment Act 1995 and the Environmental Protection Act 1990), to ensure that the new commitments in the Resources and Waste Strategy are delivered.
The highlights from Part 3 of the Act include:
It has not been confirmed what changes will be made and when they will take effect. The Act simply provides that national authorities may make regulations relating to the above.
The Act aims to deliver cleaner air by requiring the government to set targets on air quality and by updating its National Air Quality Strategy. The Act set a legally binding duty on the government to bring forward at least two new air quality targets by 31 October 2022. However, the government failed to meet that deadline. No targets have been set within the Act itself.
Local Authorities are required to work more cohesively to tackle air quality issues and action plans are required where local air is in breach of air quality standards.
The Secretary of State has the power to make regulations for the recall of products if they do not comply with environmental standards, for example ensuring that vehicle manufacturers recall vehicles if they do not comply with environmental standards.
The Act clamps down on water companies that discharge sewage into rivers, waterways and coastlines.
A new duty is enshrined in law providing that water companies must secure a reduction in the adverse impacts of discharges from storm overflows.
The Act imposed a requirement on government to publish a plan to reduce sewage discharges from storm overflows by September 2022 and report to Parliament on the progress towards implementing that plan. The plan was published on 26 August 2022.
Part 6 of the Act introduces a mandatory minimum 10% biodiversity net gain requirement for all new developments that are subject to the Town and Country Planning Act 1990. A biodiversity net gain plan must be established and approved at the planning application stage. Developers must established and approved at the planning application stage. Developers must establish that at least a 10% gain in biodiversity value will be achieved.
From 2025, it is also expected that biodiversity net gain requirements will begin to apply to Nationally Significant Infrastructure Projects.
The duty of public authorities to have regard for the conservation of biodiversity under the Natural Environment and Rural Communities Act 2006 extends to both conserving and enhancing. The Act introduces the folowing:
Currently, the Act only restricts forest risk commodities that are produced illegally under producer country laws. There is a concern that this does not capture global tropical deforestation, if considered legal under certain producer countries’ laws. Countries that water down protections for forests therefore have the potential to undermine the very purpose of the Act as it could result in the UK’s supply chains being linked to on-going global deforestation, despite the Act’s ambition to clamp down on it.
The Act introduces conservation covenants: private, voluntary agreements between landowners and a responsible body such as a conservation agency or public body which are intended to provide conservation for the natural environment and assets for the public good.
The agreements can bind successors of the land so have the potential to deliver long-term benefits.
Conservation covenants came into existence as a legal structure on 30 September 2022.
The Environment Act 2021 (Commencement No.3) Regulations 2022 was published on 13 May 2022 to bring into force provisions of the Environment Act 2021. This is the third set of commencement regulations issued under the Act. Some of these provisions came into force on 10 May 2022 and some on 30 September 2022.
The provisions that came into force in September to be aware of include:
The government are also expected to publish various plans and reports in the upcoming year covering topics such as air quality and the reduction of sewage discharges from storm overflows.
Keep an eye out for future articles providing updates as the implementation of the Environment Act 2021 continues.
This article is for general information only and does not, and is not intended to, amount to legal advice and should not be relied upon as such. If you have any questions relating to your particular circumstances, you should seek independent legal advice.
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