Legality and Loopholes in the Environment Bill

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Hannah Blitzer

This post is by Hannah Blitzer (graduate of the LLM International Human Rights Law, and now Doctoral Researcher, at Sussex Law School). Here Hannah evaluates the Environment Bill as it makes its way towards becoming law, and urges ‘cautious pessimism’ with regard to the Bill’s potential to effectively facilitate protection of human rights, adherence to international environmental standards and upholding of environmental justice.

After a prolonged delay, the Environment Bill re-emerged from its 200+ day hiatus in November, just in time to be ushered through Parliament in the final weeks of the Brexit transition period. With the UK’s environmental failures over the last ten years dubbed a ‘lost decade for nature’ due to its inability to meet nearly every global biodiversity target, the onus is on lawmakers to enact stringent legal measures that will restore the state of nature.

Notwithstanding the stream of other ‘world-beating’ policies that have emanated from the British government, headlines of which we are all too familiar with, the Environment Bill presented an opportunity for the UK to become a frontrunner in green leadership. In that sense, the Environment Bill is welcomed as a key legislative opportunity to develop a strong system of green governance and enforcement after the departure from the EU.

This piece will evaluate key provisions of the Environment Bill in relation to the Office for Environmental Protection (OEP) and deforestation. It finds that the revised Bill, released by the Public Bill Committee on 26 November 2020 after extensive Parliamentary debate, has retained low standards and loopholes that not only evidence the weak legislative commitment to long-term environmental quality, but also a flagrant disregard for the principles of environmental justice on a broader level

Enforcement & The OEP

After a decade of deregulation, there is an environmental enforcement gap in the UK. Despite the OEP being lauded as a ‘strong’, independent environment regulator, its independence, budget and enforcement functions (‘teeth’) have been routinely criticised throughout the Bill’s life cycle, including at the most recent Debate Stage.

  1. Who Decides What is ‘Serious’?

The OEP itself has the power to apply to the court for an environmental review (s37), or judicial review or statutory review (s38). However, government amendments limit the OEP’s power to bring such reviews to the most ‘serious’ breaches of environmental law. On its face, the OEP appears to have remit to determine what constitutes ‘serious’ (s22(6)), yet s24 gives the Secretary of State power to issue guidance explicitly on the matters contained in s22(6) and has the ability to revise such guidance at any time.

This veiled threat of the Secretary of State setting potentially arbitrary thresholds through ‘guidance’ is a testament the lack of independence of the OEP and to the government’s apparent refusal to trust experts and science to guide environmental governance. It also signifies an unwillingness to commit to concrete, transparent environmental obligations that will hold governmental authorities accountable for failing to comply with environmental law. The question of what constitutes a serious breach of environmental law is a matter for independent decision-making as opposed to government ministers, as it is the governmental (public) authorities that will be answering for alleged breaches of environmental law. Allowing ministers to influence these matters will inevitably render the OEP a satellite body of the government, not unlike the Environment Agency or Natural England

  1. Where are the ‘teeth’?

To improve the natural environment, the Environment Bill creates an obligation for the government to construct an environmental improvement plan, which must encompass regular reviews and meet both interim and long-term targets. Environmental improvement plans are given a minimum period of 15 years (s7(3)) and includes 5-year, non-binding, ‘interim targets’.

Achieving the mantra ‘building back greener’ after years of missed opportunities and vague commitments will require far more stringent, binding obligations. Greener UK has noted that the UK is at high risk across all of its environmental policy areas including nature protection and waste, and these risks are increasing due to insufficient regulatory action.  Yet, the deadline for setting targets for each priority area (air quality, water, biodiversity, and resource efficiency and waste reduction) under s3(9) isn’t until 31 October 2022. Enforcement is  compromised by s1(6), which states that the specified date of any long-term, binding target is no less than 15 years after the date it is set. Effectively, if the earliest date these targets are created is 2022, it cannot become binding and enforceable until 2037. The only exception to this is air quality, but particulate matter targets cannot sustain the well-being of interconnected, complex ecosystems across the UK over the next 15 years. In the absence of binding interim targets, the long-term targets will be the only binding obligations on the government that the OEP can enforce. Yet, the 15-year period that defines long term targets means there will be enforcement lags until 2037. There is little the OEP can achieve in respect of the priority area targets apart from ensuring that government decision-making complies with environmental law.

Where a public authority fails to comply with environmental law and that failure is serious, the OEP has the power to issue a decision notice and set out the steps it considers necessary for the authority to ‘remedy, mitigate and/or prevent reoccurrence of the failure’ (s35(2)). Once this notice is distributed, the OEP may apply to the court for an environmental review (s37). Yet, the court can only issue a ‘statement of non-compliance’, which doesn’t reflect the validity of conduct for which the statement was given (s37(6)-(7)). Moreover, the remedies available are only those that would be available on an application for judicial review, other than damages (s37(8)). The remedies available under the judicial review process do not allow claimants to challenge the substantive merits of the decisions in question, only whether they are lawful or unlawful. This means that there remains little way of effectively challenging public authorities’ ‘bad’ environmental decisions that are enshrined in law (e.g. inadequate long-term targets), apart from highlighting their non-compliance.

Provisions relating to environmental review could have balanced this injustice. However, an amendment (s37(12)) was inserted in the Debate Stage that the environmental review will be conducted by the High Court in England, Wales and Northern Ireland. Previously, it was expected that the review process should sit within the Upper Tribunal, which could make better use of  environmental experts in these reviews. The lack of specialist oversight in reviews of complex environmental decisions further erodes the adequacy of the enforcement functions of the OEP.

Whilst the High Court is available for the OEP (s38) and the public to bring judicial review to challenge the legality of environmental enforcement decisions, the current, and potentially restrictive ‘streamlined’ future, state of judicial review will impede effective access to environmental justice in terms of the Aarhus Convention. Although the ‘substantially different outcome’ requirement doesn’t apply here (s38(3)), issues of standing, time limits, the complexity of environmental cases and the declining availability of legal aid will make it time consuming and expensive for the average member of the public, who does not have specialist legal expertise, to bring a case. It remains unclear what the best way to challenge government decisions will be. Without the ‘teeth’ it needs to openly criticise and hold the government to account, it is seems implausible that the OEP will be able to enforce anything but a greenwashed ‘business as usual’ approach to environmental governance.

Due Diligence on Forest Risk Commodities

The potential benefits of the Environment Bill’s domestic measures are arguably worthless without tackling imported environmental degradation. The Environment Bill sets out new laws regarding the regulation of forest risk commodities, such as cocoa and palm oil (s107). The supply chains for these commodities require permanent land conversion and contribute extensively to deforestation, biodiversity loss and greenhouse gas emissions. Therefore, the embodied deforestation (i.e. the deforestation that is embodied in the production of these commodities) that the UK is responsible for must be addressed. Accordingly, the requirement in Schedule 16, Part 1 for regulated UK persons not to use specified commodities in their commercial activities in the UK unless they have established a system of due diligence and complied with relevant local laws (s2-3) is welcome. On its face, the Bill provides a layer of protection for ensuring that these commodities are not sourced from sources engaging in illegal deforestation.

However, the obligations appear to only apply to ‘illegal’ deforestation under the relevant laws of the exporting country. This is an issue as national laws often fail to protect the rights of forest communities, who experience injustice and are often subjected to violence, deprived of their free, prior and informed consent, and lack secure customary land tenure in addition to deforestation. Illegal logging does not occur in a vacuum. Whilst protecting biodiversity and improving the natural environment will require deforestation-free supply chains, the low standard loopholes that exist within the current draft of the Bill will allow companies to evade their obligations without effectively protecting human rights, adhering to international environmental standards and upholding environmental justice.

Cautious Pessimism

As it continues to make its way through Parliament, it remains to be seen whether further amendments to the Bill will rectify these issues. For this legislation to truly be ‘world beating’ it needs to incorporate more stringent obligations on the government and corporations to allow for the protection of the environment and human rights, alongside independent and effective environmental governance that holds public authorities to account. A healthy, functioning socio-natural environment requires the government to adhere to and robustly implement the environmental rule of law. In its current state, the Environment Bill does not represent such a commitment.

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