Environment Act will have cross-sector and fundamental impact

The new Environment Act is a landmark piece of legislation that is approximately five years in the making and which has attracted significant scrutiny and debate during this time.

Robbie Owen of Pinsent Masons, the law firm behind Out-Law, who specialises in infrastructure projects and economic development generally, said: “The impact of the Environment Act 2021 will certainly be fundamental and far reaching. It is a detailed and considered response to climate change and biodiversity loss and its provisions are without doubt going to be felt right across the piece – in government, the wider public sector generally and the private sector – touching on many aspects of life and in ways yet to be widely appreciated. We have only just seen the start of its implications and how we go about responsible and sustainable infrastructure provision and economic development.”

Owen highlighted, in particular, the ground-breaking new legal duty on ministers to be guided by five internationally recognised environmental principles when making policy – the integration principle, the prevention principle, the rectification at source principle, the polluter pays principle and the precautionary principle.

Fiona Ross, an expert in environmental law at Pinsent Masons, the law firm behind Out-Law, said: “The government ended up in a tussle with the House of Lords over amendments in relation to protection of the water environment from sewage pollution, eventually resulting in a new legal duty on water companies to ‘progressively reduce the impacts of sewage pollution from storm overflows’. However, this did not go as far as amendments tabled by peers, and the reference to ‘progressively reducing impacts’ is argued by critics to undermine the protections derived from EU law which place an obligation on water companies to avoid spills from storm water overflows save for in exceptional circumstances.”

“The Act enshrines the government’s flagship ‘biodiversity net gain’ proposals in law, representing a significant change in approach in the context of development planning and major infrastructure projects, with developers no longer simply being required to mitigate their biodiversity impacts but also to deliver at least a 10% biodiversity net gain compared against the pre-development biodiversity value of the development site. We are already seeing developers seeking to use their land banks for the purposes of providing biodiversity net gain units for third party developments and expect this to ramp up significantly in preparation for the new provisions taking effect,” she said.

The biodiversity net gain provisions were extended to apply to nationally significant infrastructure projects during the passage of the Environment Bill through parliament.

The purpose of much of the new Act is to serve as enabling legislation for future regulations and policymaking. For example, it requires the government to set a series of new long-term environmental targets in the areas of air quality, water, biodiversity, resource efficiency and waste reduction informed by the five environmental principles. The government is obliged to propose the targets before the end of 2022. The specified date for achieving the target must be no less than 15 years after the date on which the target is initially set.

Other powers that could be exercised under the Act include the imposition of charges on single-use plastic, the implementation of a new electronic waste tracking system, and the specification of new “resource efficiency” requirements that will impact how products are designed.

Automotive manufacturers face new obligations under the legislation too. They could face a compulsory order to recall vehicles in cases where they are found not to not adhere to environmental standards.

Powers for the government to amend existing regulations concerning the protection of rare habitats and species are also written into the new Act, raising concerns over the erosion of these EU law-derived protections.

A new regulator, the Office for Environmental Protection, will be responsible for upholding environmental law in England under the Act.