Ushering an Age of Green with the Environmental Act

By Tan Wei Heng

woman carrying earth
Source: https://www.independent.co.uk/extras/indybest/house-garden/world-environment-day-2021-theme-un-b1859570.html

Dubbed “the most ambitious environmental programme of any country on earth”,[1] will the Environment Act 2021 live up to expectations?


What Does the Law Include?

The Act seeks to protect and safeguard the environment for future generations by, inter alia:

  • Improve air quality by reducing PM2.5 concentrations (s.2)

  • Imposing legally binding target on species abundance for 2030 (s.3) to reverse to decline of quintessential British species such as the red squirrel and water vole

  • Enforcing a duty on water companies to progressively reduction of pollutant discharge

  • Extending producer responsibility by pushing 100% of disposal costs of products onto producers

Of note is the statutory effect given to 5 environmental principles: precautionary principle, the polluter pays principle, the integration principle (that environmental concerns should be accounted for in all policy-making), the prevention principle and the rectification at source principle.[2] Further, the new Office for Environmental Protection will be tasked with monitoring and reporting compliance.


Analysis

Previously, much of the UK's environmental laws and standards had been dictated by the European Union (EU) institutions. Post-Brexit, the UK/EU Trade and Cooperation Agreement merely requires a “level playing field” - “non regression” in the level of protection. This means that past targets remain binding should the target date be after Brexit.[3] However, the agreement similarly gives the UK the freedom to adopt its own policies as it is not required to harmonise with EU standards. The Environment Act therefore establishes a framework to govern how future environmental policies will be created. The Act focuses on forward-looking measures rather than changing the substantive law.


The Act does this by empowering ministers to set legally binding long-term targets and to report to parliament on progress (s.1-7). Further, they are vested with the power to create and change environmental law through secondary legislation, allowing the government to adapt to new scientific insights and keep pace with the fast-moving policy agenda. However, this might allow the government to set unambitious goals to ensure realistic prospects of attainment. Even so, it allows the industry to conduct targeted advocacy to receive a faster response from the government.


However, the success of the legislation would depend on government initiative in materialising these targets.



[1] Simon Tilling, Darren Abrahams, ‘The UK’s Environment Act 2021: A vehicle to “deliver the most ambitious environmental programme of any country on earth”’ (Steptoe, 2 December 2021) <https://www.steptoe.com/en/news-publications/the-uks-environment-act-2021-a-vehicle-to-deliver-the-most-ambitious-environmental-programme-of-any-country-on-earth.html> accessed 2 December, 2021

[2] ibid

[3] Jacquelyn MacLennan, ‘Environmental law after Brexit’ (White & Case, 9 March 2021) <https://www.whitecase.com/publications/alert/environmental-law-after-brexit> accessed 2 December, 2021