Delivering effective environmental governance

Posted by Alistair Taylor and Martin Casey on 8th August 2018

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In May this year CEMEX and RSPB published a joint blog welcoming the launch of the Government’s delayed consultation on it proposals for “a new, world leading independent statutory body to hold Government to account and give the environment a voice”.

We highlighted the need for clear and consistent regulation, and the importance of securing the effective, independent and adequately resourced regulator that business and conservationists have been calling for.

Now the proposals have been published, do they support the ambitions of business and conservationists for the environment and for sustainable business in a post-Brexit UK?

  • Watchdog must be independent of government and transparent

The Consultation confirms the government’s intentions for the new body, but there is scant detail on how these intentions will be achieved. Statements within the Consultation that the new body will be set up in primary legislation, alongside statements recognising the importance of securing its independence, are welcome, but without additional details, in particular on funding, it is difficult to understand how it will be truly independent.

The Consultation also proposes that the watchdog should be able to balance environmental protection against other priorities, but no information is provided on which other priorities will be considered, and why this level of discretion is needed given that environmental legislation already provides for relevant considerations (economic, human health, cultural) to be taken into account. If the Government is to meet its ambition to leave the environment in a better state than it inherited, it will require a robust watchdog to ensure that environmental protections are adhered to in all circumstances, giving certainty for business and ensuring a level playing field for all economic operators.

  • Watchdog must be properly resourced with necessary expertise to fulfil role

A lack of capacity within Statutory Nature Conservation bodies to deliver key functions in relation to nature conservation, environmental assessment and permitting has been a bugbear for business and conservationists. As well as undermining effective conservation action, inadequate capacity can cause costly delays for business and significant uncertainty. It can also result in flawed decision-making, leaving these decisions open to legal challenge, and further undermining confidence in government agencies and the policy framework.

It is disappointing that the Consultation does not address this key issue in any detail.

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  • Watchdog must ensure proper implementation of rules and compliance with regulatory requirements (including environmental law, policy and international agreements)

The Government’s stated ambition is to consult on “a new, world-leading, independent, statutory body to give the environment a voice, championing and upholding environmental standards as we leave the European Union”, but the proposals in the Consultation fall short of this.

Many of the roles and responsibilities currently performed by the EU institutions are not addressed by the proposals, in particular the European Commission’s role in compiling and publishing reports on implementation and compliance that are vital for transparency, and in applying robust enforcement mechanisms backed up by criminal and financial sanctions.

Climate change and planning decisions are entirely excluded from the new body’s remit, despite there being many instances where these issues overlap with biodiversity interests (for example, the overlap of climate, biodiversity and planning relating to air pollution emissions).

This also risks leaving climate legislation weaker than the rest of our environmental legislation, as while the Committee on Climate Change (CCC) plays a vital advisory role in the effective implementation of the Climate Change Act (CCA), it lacks enforcement powers.

Similarly, if the new body has no role in challenging planning decisions then the only recourses available are judicial review and statutory challenges. These are not comparable to the current role of the EU Commission complaint regime and recourse to the European Court of Justice.

Giving the body a role in advising government on its implementation of existing environmental law obligations, while being no substitute for robust enforcement powers, would contribute to the body’s enforcement functions by pre-empting problems and clearly setting out what the body considers to be best practices for meeting environmental obligations.

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  • Watchdog must have powers to investigate breaches and take effective enforcement action where necessary.

To ensure the compliance of all public bodies with environmental duties and requirements the watchdog will need robust enforcement powers, including; the ability to issue fines, stop orders, remediation notices, binding notices, the power to initiate proceedings against public bodies, and the power to compel the rescinding of permissions, consents and licences.

The new proposals fall short of this, providing only the power to hold central government to account, not the full range of public bodies, and without the power to refer cases to court.

The sanctions available to the new body where wrong doing is proven are also inadequate; most cases will result in a non-legally binding declaration and either an advisory notice requesting compliance, a binding notice or environmental undertakings. These measures do not equate to the enforcement powers of the EU institutions and are unlikely to constitute an effective deterrent. No further enforcement mechanisms are proposed in the consultation documents.

Whilst significant and robust enforcement processes (including recourse to the courts) should be used as a last resort, it is often the knowledge that such a robust backstop exists that prevents the action (or inaction) that might otherwise trigger its being used.

  • Watch dog must have power to review and report on implementation of environmental regulation.

The monitoring and reporting functions currently performed by the EU institutions are essential to enabling compliance with requirements and targets to be checked, as well as monitoring the state of the environment. As the UK currently achieves most of its obligations under international environmental agreements through its membership of the EU, these reporting mechanisms are also the main way of ensuring that the UK Government openly and clearly reports on the achievement towards international agreement goals.

The proposed new watchdog will not replicate these functions, potentially undermining transparency and the coordination of conservation action within the UK and internationally.

  • The Westminster and devolved administrations must work together, in a transparent way, to develop new arrangements for environmental governance.

The UK’s exit from the European Union will result in the loss of the broad application of our environmental principles and create a governance gap in all four countries of the UK. While these proposals only concern governance arrangements in England and for UK reserved matters, unless the governance gap is addressed across the UK, both the application of our environmental principles and compliance with and enforcement of environmental legislation will be weakened.  This poses a challenge not just for conservation, but also for business.

As the majority of our environmental legislation is devolved, there is therefore a very real need for the four countries of the UK to ensure the governance gap is addressed through new arrangements that must be co-designed and co-owned if they are to be effective.

RSPB and CEMEX are not alone in highlighting these concerns around the new watchdog. Other businesses have supported these points in a joint statement published here on the RSPB website.

Alistair Taylor is Senior Policy Officer, Nature Directives at RSPB and Martin Casey is Director of Public Affairs & Communications UK & EU Public Affairs at CEMEX.