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Leaving the European Union creates the opportunity to reform the UK’s environmental governance. It is likely that, as part of any withdrawal agreement, the UK will not be able to regress on our existing environmental standards. This is due to the UK Government committing to a ‘non-regression’ clause in its white paper proposals on our future relationship with the EU.

The Government shed more light on environmental governance post-Brexit late last year through the Environmental (Principles and Governance) Draft Bill. Within this, there is a list of nine environmental principles to guide future legislation, such as the polluter pays, the precautionary principle, and rectifying environmental damage at source. There is also the promise of the creation of an independent ‘Green Watchdog’, to be fully formed in the final Environment Bill later this year. Known as the Office for Environmental Protection (OEP), this organisation would effectively replace the role of the European Commission in regards to environmental governance, which currently has the power to take governments to the Court of Justice of the European Union (CJEU) over breaching environmental rules.

The Environment (Principles and Governance) Draft Bill provides some details over what the OEP’s remit will be – namely, to “scrutinise environmental policy and law, investigate complaints, and take action where necessary to make sure environmental law is properly maintained”. It also includes policy areas that will be within the OEP’s remit: air quality; water, marine, coastal and nature conservation; waste management; pollution; and contaminated land. In addition, it outlines what will not be included, which includes forestry, town and country planning, climate change, and the public’s access to nature.

Currently, there are at least two main concerns about the OEP: its powers and independence.

Powers

There have been a wide variety of concerns voiced over what the OEP’s ‘teeth’ will look like to properly enforce environmental law, from the third sector, industry and academia.

Under European law, which the UK is currently still party to, the European Commission has the authority to both propose new environmental laws as well as enforce existing ones through referrals to the CJEU. The Commission was created in the 1950s, but did not have a unit dedicated to environmental issues until the 1970s, and no full Directorate General for the environment until 1981.

The European Commission uses a process of infringement proceedings to investigate member-states’ compliance with EU laws, referring cases of breaches to the CJEU and, if actions are not taken to become compliant by a certain deadline, the European Commission can ask the CJEU to impose fines on the respective government in breach. For example, in May 2018, the European Commission referred the UK to the CJEU for “failure to respect limit values for nitrogen dioxide (NO2), and for failing to take appropriate measures to keep exceedance periods as short as possible”.

In the Environmental (Principles and Governance) Draft Bill, the OEP’s powers are proposed to be similar to the European Commission’s. Specifically, a complainant would be able to approach the OEP for a breach of environmental law by an authority. Then, an ‘information notice’ to the violating authority over their suspected breach will be issued, as well as the possibility of the OEP recommending remedial steps that the authority can take. The authority that has breached environmental law would be required to respond, but it would not have to comply with any of the advice of the OEP. The OEP may, if it’s advice has not been adhered to, apply for judicial review from the High Court.

Whilst the OEP’s final set of powers are to be decided in the full Environment Bill due later this year, some enforcement powers are needed to provide the OEP with the ‘teeth’ it requires. For instance, there have been calls for it to be able to impose its own fines on authorities that breach environmental law. If the OEP were given fining powers, it would in fact be made more powerful than the European Commission, which has to rely on the CJEU to impose fines.

Independence

Another area of the OEP that is alluded to in the Environment (Principles and Governance) Draft Bill, but is not set in stone as of yet, is who will be appointed within it and how it’s funding will be decided.

Currently, the European Commission is independent from the UK Government. But, according to the Environment (Principles and Governance) Draft Bill, the Environment Secretary will appoint the OEP’s Chair and two to five non-executive members. The Environment Secretary will, at present, also determine the funding for the OEP, and is required to be consulted prior to the Chair appointing a Chief Executive.

The accountability body for UK environmental policy, then, is set to be less independent. Indeed, the Environmental Audit Committee yesterday called for the OEP’s establishment to be decided more by the UK Parliament, in terms of its budget, performance and governance.

Conclusion

The Environmental Audit Committee’s scrutiny of the Environment (Principles and Governance) Bill yesterday concluded the OEP, in its proposed form, equates to “weaker enforcement” and “no threat of fines to force government action”. For the OEP to be effective, it needs the ‘teeth’ and independence to uphold environmental standards in the future.