This post is by Professor Maria Lee, co-director of the Centre for Law and the Environment at UCL.
Defra’s Draft environmental principles policy statement has finally been published for consultation. This statement is a crucial part of the move from EU law and policy, to the domestic regime set out for England by the Environment Bill. This move involves shifting from a system in which the environmental principles were systemic and legally binding, to one in which they will be creatures of government policy not law, considered only in ministerial policy making rather than across the board, and subject to deep carve outs.
The bill’s no-go zones for the principles should be removed. But if the environmental principles are (sadly) no longer to be legally binding, the policy statement is not only important, but has even more potential. Important because, with the loss of the legal obligation to apply the principles, the statement becomes their primary foothold in English environmental governance. More potential because there is no need for defensiveness and excessive caution; this policy statement can be bold. Its drafters need not be fearful of undue legal compulsion of ministers. They can give the statement the hard edges it needs to set a strong political direction, and to shape a culture of ambition.
The statement reinforces the bill’s weaknesses
So this consultation draft is disappointing. It is full of provisos and qualifications, reinforcing rather than mitigating the statutory loss of the principles’ systemic value. And it suffers from a fundamental structural flaw. In short, the weakness of the statutory framework is reflected, rather than exploited, in the statement.
The initial statement of purpose is revealing. The purpose of the principles is said to be,
“to guide Ministers and policy-makers towards opportunities to prevent environmental damage and enhance the environment, where relevant and appropriate”.
This makes no demands, simply provides some gentle guidance. It invites attention to opportunities, without noting that the principles may point towards uncomfortable decisions in the interests of the environment. It is partial: of course the principles must be relevant, but that need not be at the centre of their purpose. The reference to “appropriateness” is undeveloped, but it sits alongside pervasive attention to economic considerations and proportionality. The approach to proportionality in the draft policy statement is excessively open, apparently requiring ministers simply to “balance social, economic, and environmental considerations”, in the context of costs and benefits, before deciding how “the public interest is best served”. Proportionality so understood smothers the distinctive role of the environmental principles.
There is a fundamental structural flaw in the statement
This brings us to the structural flaw. The statement envisages a minister with a desired policy, to be assessed against the principles. This approach, with the principles as a ‘check’ on policy will no doubt do some useful work; but it should not be the height of the ambition. Better would be an encouragement to use the principles to shape policy from the outset. This structural issue is especially striking with respect to the integration principle, which
“requires proportionate consideration of whether the policy has the potential to cause an environmental impact which could be avoided, minimised or reduced through alterations to the policy.”
An ambitious approach to integration would not start with a pre-defined housing, say, or transport policy, but with a vision for transport or housing that has environmental improvement at its heart. This would be conceptually and practically challenging, and indeed an improvement on EU practice; and so it should be.
The previous quotation’s view of the integration principle as a simple exhortation to “have regard to environmental impacts” is another pervasive characteristic of the statement as a whole. The attempt to indicate, for example, that the secretary of state is “satisfied” that the statement will contribute to “the improvement of environmental protection and sustainable development”, amounts simply to a statement that,
“by considering ways to avoid, minimise or remedy environmental damage, as well as opportunities to enhance the environment, policies will be more likely to have better environmental outcomes.”
This recurring diminishment of the potential of the principles is troubling. The principles are not a quick and dirty environmental assessment; they are distinctive and substantively demanding.
The approach to the individual principles is undemanding
The discussion in the draft statement of the individual principles is, on the whole, undemanding. To return to the integration principle, as set out above, the language of compulsion (“requires”) is positive and, although undermined by the generally permissive approach of the statement as a whole, it hints at the sort of impetus that could be provided through policy. But the scope and ambition are narrow. And bizarrely, rather than being warned of the environmental dangers of failing to integrate, policy makers are warned, presumably superfluously, of the danger of “adopting inappropriate or ineffective policies just for the sake of demonstrating integration.”
The articulation of precaution doesn’t put environmental interests first
The precautionary principle is perhaps the richest and most complex of the principles. Its impact on decisions depends heavily on the legislative or other context in which it sits. The statement takes from the risk regulation strands of EU law both the centrality of risk assessment, often relied on by industry actors seeking to challenge regulation as unduly constraining, and the language of “plausible risk”.
The policy statement neglects the other key strand of EU law on the precautionary principle, where the precautionary application of legislation requires regulatory action if adverse environmental effects “cannot be excluded on the basis of objective information”. Perhaps more importantly, the statement ignores (even reverses, given the approach to “innovation”) the EU law position that the precautionary principle gives “precedence” to the protection of “public health, safety and the environment”, over “economic interests”.
The precautionary principle is conceptually and practically challenging. The policy statement, understandably, smooths off the rough edges, but provides no help and no environmentally positive nudge when difficulties arise. More worryingly, the potential for the principle to be highly protective seems to be a source of anxiety rather than ambition. And, again, the structural approach of the draft statement unduly confines the precautionary principle. It asks the policy maker to identify the environmental impacts of pre-defined pesticides, say, or housing policy, and consider whether any of them is uncertain. It would be better to ask the policy maker to reflect on how taking uncertainty seriously might contribute to the most effective environmental governance of pesticides and housing.
More, not less, ambition is needed
The environmental principles should be rich, complex and dynamic, challenging decision makers, and forcing attention to, and demanding engagement with, the most difficult questions in environmental decision making. They are supposed to be hard.
The quality of the interpretation and application of the principles by the EU institutions is imperfect, and there is real potential to do better. Instead, we are preparing to do worse.
Much of the blame for the post-Brexit impoverishment of the environmental principles lies with the statutory framework. But the policy statement could yet make a virtue of some of the statutory failings. It could choose to set a challenge for policy makers, experimenting with a bold and creative environmental policy at a time when we need it most.