What does ‘Brexit’ mean for the protection of our environment?

The main concern is that post-Brexit, environmental legislation may be transferred into UK law without the enforcement, reporting and policy development functions currently carried out at EU level. To date the European Commission and the European Court of Justice (ECJ) have played a significant role in protecting the environment. The European Commission has the ability to take member states who do not comply with environmental law to the ECJ; this will cease post-Brexit

New legislation and oversight body proposed

In December 2018 the government published its first draft Environmental Bill since 1995. It is designed to maintain environmental standards and to create an independent oversight body, the Office for Environmental Protection (OEP). The role of the OEP is to scrutinise environmental law, investigate complaints, and take enforcement action. The Bill proposes a pioneering new system of green governance, placing the government’s rather vague 25 Year Environment Plan on a statutory footing, enhancing environmental standards and delivering a ‘green Brexit’ as a result.

The government has recently announced a new UK target of cutting net greenhouse gas emissions to zero by 2050. It is a grand statement that has been welcomed generally but is it achievable, and at what cost? How much investment will be required in new technologies, in housing improvements and to what extent will everyone have to change their behaviour and the way they live? The Chancellor says it could cost £1trillion by 2050. Some say it is not good enough, and that the target date should be much earlier to avoid a climate change catastrophe.

Environmental organisations, parliamentarians and a wide range of leading industry and business voices are calling for significant improvements to the draft Bill. The proposed protections for the environment outside of the EU structure are weak. Some of the main concerns are that the new legal framework lacks firm objectives, fails to place a duty on ministers to impose environmental principles and does not allow for the necessary independence of the OEP:

In order to achieve a high level of environmental protection to guide the application of the principles, the Bill should state clear objectives at the outset, but this is not the case at the moment. This would make it more difficult for them to be modified or weakened in the future.

Currently, the Bill states that it is a requirement to ‘have regard to’ the policy statement on principles. This is so vague that every decision could potentially lead to litigation.

The Bill does not impose a duty on all public bodies to apply the principles (as is currently the case under EU law). Michael Gove has recommended that it should be amended so that all public authorities will act in accordance with it. This will provide clarity and certainty. Exclusions should be narrowly defined so that ministers across the government are required to act in accordance with the environmental principles when determining national policy.

While the government has stated that the OEP would be independent, it has provided insufficient evidence to support this in its proposals. The biggest criticism is that it will struggle to act as an independent body without fear of impacting future government decisions on its budgets and board appointments. It has been suggested that the OEP should report to Parliament and that a statutory body of parliamentarians, modelled on the Public Accounts Commission, should set its budget, scrutinise its performance and oversee its governance.

The real estate sector response

In the real estate sector, property consultancy firm Jones Lang LaSalle has signed an open letter addressed to the Chancellor of the Exchequer, urging the government to set legally binding targets within the Bill that will help to achieve environmental objectives including tackling biodiversity loss, improving water and air quality and cutting down resource use and waste.

Major players in the real estate industry are increasingly aware of the potentially harmful effects of constructing and operating buildings. They want the government to be clear about what the property industry needs to do.

The Oxford perspective

Oxford and Oxfordshire still have significant environmental issues, with high levels of air pollution and flood risks continuing to pose a threat to health, risks of uninsured property damage and the devaluing of asset values for many people, as well as presenting challenges for development proposals and the attractiveness of the city and county.

Although solutions to environmental, transport, housing and economic growth issues are being addressed by groups such as Oxfordshire Voice and the Oxfordshire Local Enterprise Partnership, there remains a need for clear, unambiguous policy and legislation from central government if changes are to happen at the pace required.

Air quality continues to be a serious matter. Earlier this year a nationwide survey by Friends of the Earth revealed that 22 places across Oxfordshire were above the legal limit for nitrogen dioxide (NO2), with locations in Banbury and Botley categorised as the most dangerously polluted ‘red’ zones. Oxford City Council has declared a ‘climate emergency’ in the City and is planning to have an Emissions Free Zone, but there are calls for greater county-wide action.

Challenges ahead

Business and professional communities are coming together to call for greater assurances that the Environment Bill can deliver on its stated ambition. The government faces a big challenge in delivering a ‘watchdog’ that can ensure the environment is not neglected. Much more is required before the environmental enforcement powers bear comparison with those currently held by the European Commission and the ECJ.

We will be following closely the development of the new legislation and commenting on how central and local government address the urgent action that is needed.

The real estate, planning and environmental law team at Penningtons Manches Cooper, led by Richard Smith (richard.smith@penningtonslaw.com) advises business and private clients on a wide range of real estate, property development and environmental law issues from its offices in Oxford.

Penningtons Manches Cooper – specialists in real estate law

Penningtons Manches Cooper’s award winning real estate team has over 100 people. Richard Smith manages the Thames Valley team, which includes four partners in its Oxford office. The team advises clients from a variety of sectors on a wide range of real estate transactions, disputes, construction projects, planning and environmental law.