Following the relaunch of the Environment Bill by Environment Secretary Theresa Villiers (she has since been replaced by George Eustice) on 30 January 2020, CIEEM has had a chance to further digest the Bill itself. Many of our comments are unchanged from the previous version of the Bill. Alongside the Bill, Government has published a policy statement.
In launching the “flagship” Bill, the Secretary of State said that there “is a clear and urgent scientific case and growing public demand for acting decisively to address biodiversity loss and climate change”. She added that the Bill “continues to form a central part in the Government delivering a step change in environmental protection and recovery and will help deliver the Government’s manifesto commitment to deliver the most ambitious environmental programme of any country on earth. It will also support recent legislation to reach net zero carbon emissions by 2050 by minimising our waste, cleaning our air and water, and restoring habitats to allow plants and wildlife to thrive.”
It has been pleasing to see the Bill’s re-introduction to Parliament and we welcome much of what is in the Bill. However, to be truly transformative, the Bill should:
- Be founded on the Government’s aspirations to have world-leading environmental standards such that it leaves the environment in a better state than it found it.
- Build on the Bill’s current target-setting process, such that they are based on clear criteria and measurable standards. Targets must be ambitious, clearly defined and measurable. There should be clear responsibility and accountability for meeting targets; adequate resourcing to ensure achievability, and robust monitoring to check for sufficient progress.
- Address current concerns over the independence of the Office for Environmental Protection (OEP) and its ability to ensure Government enacts policies which enable the delivery of these legally binding targets. This includes giving Parliament a strong oversight role of the OEP, including influence over its resourcing and funding.
CIEEM has also signed up to the Broadway Initiative’s Assurances document, and we were recently interviewed on BBC Radio 4’s Farming Today programme to give our views on the Office for Environmental Protection.
The Bill sets the groundwork for the Government’s ambition for the environment. However, it is disappointing that there is no overarching objective to the Bill. It enables the setting of targets and the making of plans, but what does it actually aim to achieve? The Bill should have overarching objectives that the targets and plans strive to deliver.
In agreement with others in the environmental sector, CIEEM believes that a new clause at the beginning of the Bill should set out that the objectives of the Bill are to achieve and maintain:
- a healthy, resilient and biodiverse natural environment;
- an environment that supports human health and well-being for all; and
- sustainable use of natural and physical resources.
We are pleased to see the Bill taking a long-term view with requirements on the Secretary of State to set targets with review periods. However, CIEEM believes we can be more ambitious, including more targets and for the short-term as well. There is currently a requirement for one target to be set for biodiversity, and it must be for beyond 15 years into the future. The Secretary of State is however required, in reviewing the 25-Year Environment Plan, to set at least one interim target for biodiversity. It is pleasing to see that the SoS must seek advice from independent experts in setting the targets.
In setting targets, we believe that there needs to be a duty on the Secretary of State to set targets that will:
- lead the country to achieving the above overarching objectives; and
- ensure that there is a significant improvement of the natural environment in the course of their delivery.
For the biodiversity target, we believe there needs to be at least two: one target to increase the number of protected sites in favourable condition; and another target to halt and then reverse the decline in individual species. This latter target could, for example, be linked to an aggregate of data already collected for the State of Nature reports, although this will need to be carefully considered so that improvements for some species do not hide declines in others.
Monitoring and Evidence
There are requirements on the Secretary of State to make arrangements, as he or she considers appropriate, for the purposes of monitoring:
- whether the natural environment is, or particular aspects of it are, improving in accordance with the current environmental improvement plan;
- the progress being made towards meeting any set targets; and
- the progress being made towards meeting any interim targets.
Beyond the Environment Bill, it is disappointing to see that the UK has withdrawn entirely (no longer a member, nor a cooperating country) from the European Environment Agency (EEA). The EEA gathers data and produces assessments on a wide range of topics related to the environment, enabling it to provide sound, independent information on the environment for those involved in developing, adopting, implementing and evaluating environmental policy.
The Bill includes provision for the Secretary of State to prepare a policy statement on environmental principles that explains how ministers should interpret and “proportionately” apply the principles.
The five principles to be included in the policy statement are:
- the principle that environmental protection should be integrated into the making of policies;
- the principle of preventative action to avert environmental damage;
- the precautionary principle, so far as relating to the environment;
- the principle that environmental damage should as a priority be rectified at source; and
- the polluter pays principle.
However, the Bill conspicuously excludes the non-regression principle, and application of the principles has some notable exemptions that provide considerable scope to bypass the principles. These exemptions include:
- the armed forces, defence or national security; and
- taxation, spending or the allocation of resources within government.
The new Office for Environmental Protection (OEP) will have climate change included in its remit, as CIEEM has championed. It will be based in Bristol and will have a staff of 60-120. CIEEM has been consulted by Defra on recruitment for the new body.
CIEEM believes the watchdog needs to be further removed from Government to make it truly independent. As currently presented in Schedule 1 of the Bill, the Secretary of State will appoint senior staff and determine its funding. The Bill should be amended to give greater power to Parliament in these regards.
Legal opinion seems to suggest that the powers conferred on the OEP do not equal those that have been lost from the UK exiting the EU.
CIEEM CEO Sally Hayns recently gave a speech on what we would like to see the OEP prioritise when it starts operating from 1st January 2021. Her talk concluded that we need the OEP to be looking at the UK’s capacity and capability to deliver the environmental improvement that is so desperately needed. We will need to truly invest enough to have any prospect of achieving our obligations, let alone our ambitions. The effectiveness of the OEP as a watchdog and an enforcer will underpin the UK’s ability to become a global leader in environmental protection in a post-Brexit world.
Resources and Duties on Public Bodies
The Bill strengthens the duty on public bodies to not just protect but also enhance biodiversity, and that local authorities must have regard to relevant local nature recovery strategies.
The Bill empowers local authorities, which will require funding and expertise. Appropriately competent biodiversity professionals must be at the heart of delivering the ambition and duties set out in the Bill.
The Bill makes no provisions for funding, or otherwise resourcing, the Government’s ambition for “thriving plants and wildlife”.
Local authorities, Natural England and the Environment Agency are currently critically underfunded to achieve this ambition.
One of the first tasks that we would like the OEP to address, is to determine whether the resourcing of public bodies charged with delivering environmental improvements is sufficient to meet their obligations.
Biodiversity Net Gain
On Biodiversity Net Gain (BNG), the Bill makes the approach mandatory to ensure that new developments enhance biodiversity and help deliver thriving natural spaces for communities.
There are two broad exceptions. The first is development for which planning permission is granted by a development order, or urgent Crown development under section 293A of the Town and Country Planning Act 1990. The latter applies to development that is of national importance (i.e. nationally significant infrastructure projects) and to development that is needed as a as a matter of urgency. The second exception is “development of such other description as the Secretary of State may by regulations specify”.
The Bill obliges the Secretary of State to produce and publish a biodiversity metric and a biodiversity gains site register.
Irreplaceable habitats are not specifically excluded from the provisions, instead the Bill allows the Secretary of State, by regulations, to make provision for the exclusion of irreplaceable habitats. “Irreplaceable habitats” are however yet to be defined.
In relation to any development for which planning permission is granted, the Bill states that the biodiversity gain achieved will be the “projected value of the onsite habitat at the time that the development is completed”. The pre-development biodiversity value is determined as being on the day that the planning application is submitted. This potentially creates a loophole for unscrupulous developers to clear a site of its biodiversity interest prior to submitting an application, however the person submitting the application and the planning authority may agree to an earlier date.
The Bill sets the requirement for gain at 10% but which may be amended by the Secretary of State.
Biodiversity gains will need to be maintained for at least 30 years after the development is completed.
In this ‘Super Year’ for the environment, the Government need to take on a global leadership role in relation to the climate emergency and biodiversity crisis. This leadership will be critical in the lead up to setting new global targets for both issues at international forums – UNFCCC COP26 and CBD COP15 – in late 2020.
CIEEM continues to push for better outcomes for society and the planet through ongoing engagement with parliamentarians, civil servants and other stakeholders through both unilateral activities and in partnership with, for example, the Environmental Policy Forum, Greener UK, and the Broadway Initiative.