Victor Anderson finds holes in government plans to replace EU green laws

As a result of Brexit, the European Commission no longer protects the UK environment. Its enforcement of EU laws drove improvements, particularly in air quality and the state of the beaches. The Johnson government tells us not to worry, because the role of the EU Commission is now being transferred to a new body, the Office for Environmental Protection, with updated environmental laws contained in new legislation, the Environment Act 2021.

This act was the outcome of a long, slow and much interrupted parliamentary process, beginning with a draft bill in December 2018. It covers topics such as air, water, nature and waste, and sets up a system of environmental targets and principles. As with most other aspects of Brexit, the act doesn’t really mean that anything is finally “done”: a great deal is going to depend on interpretation, resources and the drawing up of a series of plans the act requires. It is therefore too early to tell what the eventual impact of the act is going to be. However, right from the start it looks like it has some bits missing.

The government’s environmental principles explicitly don’t apply to “taxation, spending, or the allocation of resources within government” (Section 19). Since most measures either cost money or use a system of incentives through the tax system, that rules a lot out. Basically, this is the Treasury getting itself opted out of the new arrangements.

The principles themselves don’t include the most important principle for sustainability: that policies should take into account the interests of future generations; the government opposed a move to add that in. The “precautionary principle” is there, left undefined in the act, although a recent consultation document stated the government’s view that it is about being careful about the likely consequences of a policy – even though the Covid-19 pandemic has surely shown us that what we most need to be cautious about is consequences which appear to be unlikely but in fact will have a very big impact if they ever do occur.

Another term left undefined is “environmental law”, which the Office for Environmental Protection (OEP) has been set up to safeguard and monitor the enforcement of. But a lot of what affects the environment is to be found in planning law and decisions on infrastructure, such as building roads and expanding airports, and of course economic and trade policy, none of which come within a strict understanding of “environmental law”. The OEP has nothing like the autonomy or remit of the old Sustainable Development Commission, abolished by the Tories in 2010, which was able to range across and advise about all areas of policy.

The act does, however, reflect some campaigning achievements. It establishes a system of environmental targets, with plans to be drawn up to achieve them, and a system of annual reporting on progress. It also looks like it will boost the importance of biodiversity conservation in the planning system, although the complicated details make it difficult to tell whether that’s how it will actually turn out. The act ended up with a compromise about discharges of sewage, the issue which galvanised public interest in this legislation just as it was in its very last stages in the House of Lords.

The act establishes a whole set of processes which will enable people concerned about the environment “to fight another day”, for many years to come. There will only be a short break: the fight will resume at the latest in February 2022, when the government will be consulting on its new environmental targets, followed soon after by its proposals for soil health.

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