This post is by Tom West, ClientEarth’s law and policy advisor.
A major lesson from ClientEarth’s air quality challenges is that we cannot always rely on the government’s promises to meet its legal obligations.
It wasn’t that long ago that the UK was known as the ‘dirty man of Europe’ for causing acid rain across the continent, dumping sewage straight into the sea and failing to control pollution from large power stations, cars and industry.
Since joining the EU, the British public have been able to rely on Europe to keep watch over our environmental laws, and take action when necessary.
Around 80 per cent of the UK’s environmental laws originate from the EU, including principles that help pre-empt and avoid environmental damage before it happens. These laws have helped clean up our air and beaches, and protect nature in Britain.
The government has committed to set up a ‘world-leading’ environmental watchdog to hold decision makers to account post-Brexit. Yet, despite overwhelming support for its establishment – including from the environment secretary Michael Gove and the EU – other corners of Whitehall are already expressing doubt about the need for a watchdog with legal powers.
Why the watchdog is vital for environmental law
Environmental law protects people and nature. Rather than settling disputes or preventing harm to specific individuals, instead it defends the habitats of birds and badgers, ensures the resilience of rivers and protects the health of our children’s lungs. For this to work properly, the environment has to be given a legal voice.
As a Supreme Court judge said: “Environmental law … proceeds on the basis that the quality of the natural environment is of legitimate concern to everyone. The osprey has no means of [initiating a challenge] on its own behalf, any more than any other wild creature. If its interests are to be protected someone has to be allowed to speak up on its behalf”.
This is what the environmental watchdog is for. And there are precedents. A number of other policy areas already have their own watchdogs – the Equality and Human Rights Commission, the Information Commissioner’s Office and Ofsted – to name but a few. Until Brexit, the EU monitored and enforced our environmental law. The UK must now build and improve on this.
It would be value for money
Establishing strong environmental protections is a sound investment: economically, socially and ecologically.
A well-designed environmental watchdog would be great value for money. Poor environmental conditions end up costing us all more in the long run: NHS costs from treating patients exposed to air pollution alone is estimated at more than £20 billion a year.
Compare that budget black hole with the economic benefit of meeting emissions targets, which is estimated to create 190, 000 new jobs and leave households £565 better off annually.
Everyone benefits when the environment is clean, healthy, resilient, diverse and beautiful. Spending time with nature improves our physical and mental health, makes us happier and gives us a sense of belonging.
Do we really need another environmental body?
Those who break the law must be able to face the courts. The new watchdog must be independent of government, have meaningful legal powers and be designed to ensure compliance with environmental law. There simply isn’t a body set up to do this at the moment.
Existing organisations, like Natural England, are too close to government and should themselves be under the watchdog’s eye. Existing political bodies like the Environmental Audit Committee do not have the right resources or legal powers. And existing legal processes like Freedom of Information requests and judicial review are simply too limited to ensure that environmental law is being properly complied with.
It cannot be left to charities like ClientEarth to bring costly court cases against the government every time the environment is at risk: we need a specialist body dedicated to defending the interests of people and nature.
How would the watchdog work?
This new body will improve government decision-making by looking at systemic problems in key policy areas and making recommendations that public authorities should follow.
This would mean new housing and infrastructure projects considering the environment much earlier on, protecting the land and complying with the law.
The new watchdog isn’t about having a bad cop to tie the hands of government. Its goal is to make sure we protect our environment by complying with the law: this should always be a top priority for any government.
To do this it must be a forum where experts and communities can come together to review the merits of decisions and develop solutions to environmental problems, in a transparent and rigorous way.
It should be able to agree on detailed ‘action plans’ or issue binding notices that set out what a public body must do to comply with their legal obligations.
The courts should also be empowered to back up the words of the watchdog where necessary. Its credibility will come from its independence, expertise, public engagement and purpose to fight for the interests of people and nature.
This is not about arbitrarily superseding the decisions of an elected government. It is about making sure that legal obligations to protect nature, the countryside and people’s health cannot be ignored.
Image by Saffron Blaze via Wikipedia