Rob Biddlecombe and Anita Lloyd, from Squire Patton Boggs’ environmental, safety and health practice put the Environment Bill under the microscope
The Environment Bill, which is completing its passage through parliament, represents the government’s vision of a framework for environmental regulation and governance in the UK post-Brexit. The government has promised that the Bill will deliver cleaner air for all, but how will this ambition be achieved and what happens if it is not?
Clean air targets and other protections in the Bill
Clause 1 requires the secretary of state (SoS) to establish a long-term (minimum 15 years) target in respect of air quality for England by 31 October 2022. B
y the same date, under clause 2, the SoS must have also set a target for the annual mean level of PM2.5 in ambient air for England. These targets are in addition to existing requirements, such as under the national air quality strategy (NAQS) and Local Air Quality Management (LAQM) system.
Both of these targets will be legally binding on the SoS, who will be required to report to Parliament on whether they have been achieved. Before setting these targets, the SoS will be required to take advice from independent experts, and must be satisfied that the targets are achievable.
The SoS must also review the targets at least every five years to ascertain whether they significantly improve the natural environment in England.
The targets may be revoked or lowered if the SoS considers either that meeting the existing targets would have no significant benefit compared with not meeting them or with meeting lower targets, or that changes in circumstances since the targets were set mean that the environmental, social, economic or other costs of meeting them would be disproportionate to the benefits.
Clause 7 requires the SoS to prepare an environmental improvement plan (EIP) for England to significantly improve the natural environment. Each EIP must be no less than 15 years long and DEFRA’s current 25 year plan, which has includes clean air goals, will be the first EIP.
The SoS must report annually on progress in implementing the EIP and the extent to which the environment has improved. The EIP must be reviewed every five years and, as part of that review, the SoS must set interim targets, including for air quality. Although interim targets may be revised, the SoS should only do that where meeting the revised target would make an appropriate contribution towards meeting the targets under clauses 1 or 2.
Part 4 allows the SoS to make regulations for the recall of relevant products (for example, vehicles) that do not meet relevant legal emission standards.
Schedule 11 amends the Environment Act 1995 relating to air quality and requires the SoS to review and, if appropriate, modify the NAQS within 12 months of schedule 11 coming into force and, thereafter, at least every five years. The SoS must also report annually to Parliament on progress in delivering air quality objectives in England. Other amendments aim to enable greater cooperation at local level and broaden the range of organisations that play a role in improving local air quality under the LAQM.
Schedule 12 amends provisions in the Clean Air Act 1993 by replacing the criminal offence of emitting smoke from a chimney in a smoke control area with a civil penalty regime. This regime will not include previously available defences, thereby facilitating easier enforcement. Other amendments create offences relating to the purchase and sale of controlled solid fuel in smoke control areas in England.
Replacing the EU Commission in its role as watchdog on matters of environmental compliance after Brexit will be the Office for Environmental Protection (OEP).
The OEP’s duties include monitoring progress under the EIP and towards meeting targets set under sections 1 and 2, and publishing an annual progress report. The OEP will also handle complaints alleging breaches of environmental law by public authorities.
Where it has reasonable grounds to suspect that a public authority has breached environmental law, the OEP may request further information from the authority. Where it is satisfied that the public authority is in serious non-compliance with environmental law, it may serve a decision notice setting out the steps to be taken (which may include steps to remedy, mitigate or prevent reoccurrence of the failure).
In serious or urgent alleged breaches, the OEP may also apply to court for environmental or judicial review. However, one of the main differences between the OEP and the Commission is that the OEP cannot seek damages against the public authority, which clearly limits its effectiveness as a regulator. In addition, concerns have been raised about how independent the OEP will be in practice, given that its budget will be set, and its chair appointed, by the SoS.
In summary, on the face of it, improving air quality forms a central goal of the Environment Bill.
However, air quality improvement requires consistent and concerted long-term action (perhaps over decades) and there is scope within the Bill for ambitious targets and plans to be diluted over the years, perhaps by successive SoS, for political convenience. Furthermore, the ability of the OEP to hold public bodies to proper account for failing to meet air quality requirements may be undermined given its inability to seek damages for breaches and the (at least, indirect) control that the government exercises over it.
This article first appeared in the February Air Quality News magazine which is available to view here.