The Bill proposes a post-Brexit system of environmental governance to oversee new powers and regulations in four environmental law areas.

By Paul A. Davies and Michael D. Green

On 15 October 2019, the UK government published the final draft of Environment Bill 2019–20 (the Bill), which aims to set out the government’s environmental priorities post-Brexit. The Bill covers a broad range of topics ― from air quality to England’s future environmental governance — and gives a legal footing to several policy commitments that the government has made in recent years. This blog post will consider the Bill’s content, and the potential impact that the Bill may have on environmental regulation in England.

The Bill
The Bill’s content has been under consideration for some time, beginning with a period of consultation that began in May 2018 (see Post-Brexit Environmental Principles and Governance Bill Consultation Launches in UK). Subsequently, the government produced a draft bill in December 2018, a second policy paper in July 2019, and now the final draft of the Bill.

The Bill enacts changes in two complementary ways: firstly by creating a new system of environmental governance within England, and secondly by introducing new powers and regulations in four specific areas of environmental law.

Environmental Governance
Part 1 of the Bill introduces a framework for legally binding environmental targets. This creates a statutory footing for the government’s 25-year environmental plan, and the annual environmental improvement plans that underpin that 25-year plan. The government’s intention is that the legally binding nature of these targets will help to not only ensure success in achieving them, but also demonstrate the UK’s global leadership on environmental issues at a time when such issues are becoming increasingly politically important.

Part 1 also provides a legal basis for a number of principles intended to protect the environment from harm by making environmental considerations central in governmental decision-making. These principles include “polluter pays” and the “precautionary principle,” both of which have applied in the UK to date as principles of the EU.

Finally, the Bill creates a new organisation, the Office for Environmental Protection (OEP), which is to be the independent watchdog tasked with holding the government and other public bodies to account on fulfilling environmental targets and obligations. To ensure accountability, the OEP will advise these institutions on environmental matters, as well as scrutinize the institutions’ decisions and take enforcement action if the OEP finds those decisions incompatible with government targets. The OEP’s enforcement powers are broader than those initially proposed in December, and the OEP will now be able to challenge decisions on climate change grounds, including whether the government’s actions are consistent with meeting the UK’s target of net zero greenhouse gas emissions by 2050.

Environmental Areas of Focus
In addition to introducing structural changes to environmental governance, the Bill includes a number of specific regulations and powers. These fall into four main categories, which are as follows:

Air Quality
The Bill’s air quality provisions include: a requirement that the government make regulations that set a legally binding target to reduce fine particulate matter (PM2.5) in ambient air; a duty for the government’s air quality strategy to be reported on annually and reviewed at least every five years; and the power for the government to make regulations for the recall of products (such as vehicles) that do not meet relevant legal emissions standards.

Nature and Biodiversity
The Bill introduces a number of requirements relating to biodiversity, including a new general condition to all planning permissions in England (which requires that a biodiversity gain plan must be approved before any development can commence), and an enhancement of the duty of public authorities to conserve biodiversity to further include a duty to “enhance” biodiversity.

A number of provisions in the Bill attempt to ensure long-term security with regard to water and wastewater services, such as giving more robust information-gathering powers to Ofwat. A particularly noteworthy new power is the government’s ability to direct water undertakers to prepare joint proposals, in order to identify how water undertakers can work together to improve their ability to meet current and future demand for water. This power has been specifically called for to ensure that the water industry is able to deal with the potential effects of climate change, which has been predicted to have a significant impact on water supply in England.

Waste and Resource Efficiency
The Bill provides a framework for the government to deliver on its commitments in its Resources and Waste Strategy, published in December 2018, and gives the government powers to effect the implementation of a variety of waste-reduction schemes. These include the power to introduce charges for single-use plastic items, as well as to create deposit return schemes, whereby consumers pay a deposit upon the purchase of an item (such as a bottle), which is then reimbursed on return of the used item.

Alongside the specific proposals in these four areas, the Bill also introduces a new requirement for the government to set at least one long-term target in each area. Draft legislation in this regard must be laid before Parliament before the end of October 2022.

The Bill will likely take on a vital role in environmental governance post-Brexit, both by enshrining environmental principles and specific targets into law, and by creating the necessary structure and institution (in the form of the OEP) for enforcement and implementation of those principles and targets. Whilst the Bill will only directly apply to England (with the exception of a small number of provisions that apply to Northern Ireland), the government envisions that, with the consent of the devolved governments of Scotland, Wales, and Northern Ireland, over half of the Bill’s provisions will apply throughout the UK.

Latham & Watkins will continue to monitor developments in this area.

This post was prepared with the assistance of James Bee in the London office of Latham & Watkins.