It’s crunch time for the Environment Bill
The government’s landmark Environment Bill is nearing the end of a complex and fraught journey. When Parliament returns on 6 September, Peers will debate and vote on a series of key amendments. The bill is expected to pass in the autumn ahead of the COP26 summit, where we hope that it will help spur successful negotiations.
The bill is also destined to kickstart domestic action to address environmental challenges ranging from toxic air in cities to worsening river pollution to species decline and habitat loss to our throwaway society.
The main question likely to exercise Peers is whether the bill – and the new environmental governance system at its heart – is fit for purpose and equipped to stand the test of time. While the environmental credentials of current Defra ministers are well established, their enthusiasm will not necessarily be shared by their successors, so legal frameworks must be durable, and clarity and ambition embedded rather than assumed.
The environmental NGO community has been working tirelessly on the bill ever since it was a glint in the eye of ministers. The final throes of a bill’s passage are when amendments not initially proposed by the government can be progressed. But this process is far from trivial as changes must be agreed by all government departments.
At this stage in the parliamentary process, a degree of pragmatism must therefore set in. While there are of course many other areas where the bill could potentially be strengthened, these improvements are essential ‘must have’ changes that we hope to see come to pass. They are also necessary to justify the world leading badge that the government craves to pin to this bill.
Environmental governance to stand the test of time
At the heart of the new governance system lie a set of five environmental principles and the new oversight body, the Office for Environmental Protection (OEP). While ministers will have to respect these principles in their policy making, policy relating to two key areas – defence and spending – will largely be carved out. These loopholes must be closed.
The OEP’s independence and powers have been a standout issue in every parliamentary debate. The appointment of Dame Glenys Stacey as the first Chair has been universally welcomed, but her high calibre is no guarantee that future appointments will be made to similar high standards. A greater role for Parliament in the hiring and firing of board members would be a welcome additional safeguard. This would mirror existing arrangements for several other oversight bodies and would not interfere with ministers’ commitment to ensuring prudent use of public resources.
The power of the Secretary of State to instruct the OEP on how to develop and implement its enforcement policy has unsurprisingly come under considerable attack as a slight to the body’s independence. Rethinking this will be essential if the bill is to proceed with the Lords’ blessing.
Concerns that developers and private interests have been given priority over the environment in the new enforcement system have been highlighted in Parliament and by the Bingham Centre for the Rule of Law. Peers have proposed a middle way in which unlawful decisions can be effectively remedied and the interests of third parties considered.
An ambitious targets framework will help drive nature’s recovery
Comparison with the Climate Change Act reveals some key differences in how the government is planning to set and meet environmental targets. Businesses have called for greater certainty to support investment and to drive ambition through binding rather than optional milestones and requiring environmental improvement plans to set out policies and proposals for how the targets will be achieved.
Our wildlife and green spaces are under threat, in some cases existentially. But the glitch in the government’s otherwise welcome target on species abundance risks missing an opportunity to drive and sustain a better future for our wildlife. This could be addressed through the simplest of amendments.
Adding a requirement for habitats created through biodiversity net gain to be maintained for 125 years, not 30 years, would add an intergenerational dimension to this welcome policy. Boosting the role that local nature recovery strategies will play in local planning and spending decisions and guiding the new powers for ministers to revise the habitats regulations towards enhancing site and species protections would complete an ambitious nature package.
On resources and waste, the measures in the bill are designed to move us toward a more circular economy that keeps materials in use for longer. This is very welcome but one of the powers in the bill jars with this holistic approach. Broadening the power to charge for single use plastic items to cover all single use items would better fit with the tenor of government policy and help avoid the risk of unintended and harmful material substitution.
Seizing the opportunity to reduce our global footprint
Ministers have clarified that the powers in the bill can be used to set a target to reduce our global environmental footprint. But such a target is absent from the first tranche and there is no clarity on when it would be brought forward. As research from WWF shows, a 2030 target is necessary but is not possible under the current bill framework.
The government has pledged to tackle global deforestation through a new measure in the bill to require businesses to undertake due diligence on their supply chains and through a prohibition on certain high risk forest commodities. As the new system is based on the eradication of illegal deforestation, there is an inherent risk that producer countries may seek to change or fudge their laws to accommodate the new provisions. The inbuilt review within the bill assumes a greater importance in this context and should be more expansive to enable the due diligence system to keep pace with global change.