26 October 2021
The current climate and biodiversity emergencies demand bold and effective government action. So far, the UK has promised to take steps to address environmental harm and promote environmental enhancement, but is it ready to follow this through?
As it prepared to leave the EU, the Government committed to protecting and prioritising environmental issues. This includes the 25 Year Environment Plan, which describes how new UK policy will make the UK “the leading global champion of a greener, healthier, more sustainable future for the next generation.”
However, increasingly there are warning signs about the UK’s lack of ambition as it develops environmental regulation. These include, for example, recent Government proposals that could:
In response, ClientEarth lawyers have laid out key areas where environmental regulation should be defended and improved upon for the UK to be world-leading in addressing the climate and biodiversity crises.
There is no time to waste – as the latest IPCC report on global warming made clear, the scale of the crisis means we are facing a “code red for humanity.”
In its recent “Reforming the Framework for Better Regulation” consultation, the Government proposes to increase reliance on administrative guidance, like policy statements, rather than legislation to achieve important public outcomes.
Such guidance, however, is not subject to Parliamentary scrutiny or sufficient public transparency and engagement in decision-making.
ClientEarth is concerned that expanding reliance on administrative guidance instead of law could result in less accountable decision-making, and ultimately worse outcomes for the environment.
The Environment Bill currently being debated in Parliament is a good example of this trend. It is a framework legislation, but most of the detail is proposed to be implemented through an “Environmental Principles Policy Statement.”
Authorities are under no obligation to apply these principles, and need only have “due regard” to the principles before deciding whether or not to apply them. There are also a number of wide-ranging exemptions to the application of the policy statement, including for Treasury and the Ministry of Defence.
“Vital environmental provisions should be enshrined in law, so that regulators have clear duties and can be held to account,” said ClientEarth Head of UK Kyle Lischak.
“Otherwise, it will be more difficult to rely on regulators to maintain effective environmental standards at this pivotal moment for the environment.”
The Government is also considering a new ‘proportionality principle’ which would apply to all UK regulation. Under this proposal, regulation must be proportionate “to the scale of the risk being mitigated”, and “to the capacity of the organisation being regulated”.
If applied to environmental regulation, this could mean that small individual activities are poorly regulated, without considering the cumulative impact that these activities could have on the environment.
For example, if a river is polluted from many small individual sources, none of which is effectively regulated on its own, this can lead to an overall negative impact on water quality and biodiversity: the so-called ‘death by a thousand cuts’.
Instead, a more holistic approach to environmental risks and impacts must be considered. ClientEarth lawyers have stressed that the “precautionary principle”, which is at risk from the Government’s latest proposals, provides a much stronger framework for regulation.
The precautionary principle means that development should not proceed in a way that negatively affects the environment, including with reference to many small individual impacts that have a cumulative effect.
“Maintaining a precautionary principle in law is critical to ensuring we stay on the front foot in addressing complex, multi-sourced environmental threats,” said Kyle.
“We are worried that the UK might be watering down protections for environmental law by introducing a new proportionality approach that could ultimately undermine this important legal safeguard.”
Judicial review is an important way for people to seek access to justice in the UK – in line with its international obligations under the Aarhus Convention, which allows people to defend the environment effectively in court. Judicial review is a process for individuals and organisations to bring court challenges against public bodies.
Just last week, the UN found that the UK is not complying with its commitment under the Aarhus Convention. And yet the Government is planning on weakening access to justice even further, by limiting the ability for the public to seek an effective solution after a finding of unlawfulness.
This proposed change going through Parliament could severely impact not just environmental protection, but also the rule of law more broadly. It means that even if a court finds that a public body has behaved unlawfully, they might still have to allow the decision in that case to stand – even if it has negative environmental consequences.
The UK should be developing laws and regulation that enhance the democratic process and offer more safeguards for the environment. Instead, it is doing the opposite.
The Government has said it wants to leave the environment “in a better state than we found it”. But in order to do this, environmental regulation and enforcement cannot be watered down, but should instead be maintained and strengthened.
ClientEarth lawyers believe that in order for society to successfully address the complex nature of climate change, biodiversity loss and other negative environmental impacts, a strong, clear – and suitably precautionary - regulatory framework must be defended and improved upon going forward. This is complementary to UK efforts to ensure sustainable development as we transition to a net zero economy.
And finally, the UK should be improving public access to justice so that people can challenge public bodies in court, and actually expect changes when an unlawful decision is found.
In light of the UK’s ambition to lead the world into a greener future at COP26, these improvements must be urgently made. Otherwise, the Government will be largely touting empty promises.
Photo credit: Sebastian Pichler / Unsplash