Introduction
The combination of COP26, the Government’s Net Zero Strategy (and ancillary strategy documents) and the long-awaited Environment Act 2021 (seeking to bring into effect the 25 Year Environment Plan) mean that 2022 is likely to be a busy year in policy development.
Look back on 2021
Greenwashing
September 2021 saw a clamp down on misleading greenwashing claims by two regulators – the Advertising Standards Agency (ASA) and the Competition and Markets Authority (CMA). On 20 September, the CMA published its ‘Green Claims Code’, helping businesses to check their environmental claims are genuine. On 23 September, the ASA announced it will set out industry guidance to ensure adverts are not misleading.
COP26
In November 2021, COP26 was hailed as the most important Conference of the Parties (COP) since COP21, which produced the Paris Agreement. Under the 2015 Paris Agreement, countries committed to limiting the global temperature increase to 2°C, with an ambition of keeping it to 1.5°C. Notably, the UK COP26 presidency did not meet its own target to consign coal to history. However, the parties to the Paris Agreement agreed to 'revisit and strengthen the 2030 targets in their nationally determined contribution by the end of 2022'.
Successes at COP26 include the agreement of new rules on disclosure and transparency for the private sector and green finance for the net zero economy. There are new requirements for all listed companies in the UK to produce net-zero transition plans by 2023. Furthermore, the newly established Glasgow Financial Alliance for Net Zero announced $130 trillion of private capital to accelerate the transition to a net-zero economy.
Environment Act 2021
On 9 November 2021, the Environment Act (the Act) finally gained Royal Assent and became UK law. The stated aims of this wide-ranging 'flagship' legislation are 'to make provision about targets, plans and policies for improving the natural environment; for statements and reports about environmental protection; for the Office for Environmental Protection; about waste and resource efficiency; about air quality; for the recall of products that fail to meet environmental standards; about water; about nature and biodiversity; for conservation covenants; about the regulation of chemicals; and for connected purposes'.
What to look for in 2022
Most significantly, in 2022, we will see further legislation in relation to many aspects of the Environment Act. The Act predominantly serves as an environmental framework, giving the government and relevant national authorities the power to make further regulations. The detail as to how these operate in practice will need to be enshrined in secondary legislation.
Environmental Targets
The Act requires the government to set long-term environmental targets, of no less than 15 years, relating to air quality, water, biodiversity, resource efficiency and waste reduction. These targets must be laid before Parliament by 31 October 2022.
Environmental Principles
The Act makes certain EU environmental principles central to policy development. The five principles comprise the integration principle, prevention principle, precautionary principle, rectification at source principle and the polluter pays principle. The Act obliges the government to prepare a policy statement on these principles, explaining how they should be interpreted and proportionately applied when making policy. A draft policy statement was consulted on in spring 2021 and we are still waiting on the government’s response.
Office for Environmental Protection
The purpose of the Office for Environmental Protection (OEP) is to take on the role of environmental watchdog in the UK (replacing the European Commission in that role following Brexit) and will function as an independent body, investigating failures in the application of environmental law, enforcing compliance and holding the government and public authorities to account for the host of obligations enshrined in the Act. The OEP was legally formed on 17 November 2021, and it is expected that the functions and powers of the OEP will be made available to it early in 2022 and, at this stage, the OEP will achieve 'functional independence'.
The OEP has been one of the most controversial subjects of the Act, with ongoing debates throughout the Act’s passage through parliament addressing the level of ministerial influence to be granted over the body. It will be interesting to see, when the OEP obtains its functions and powers and starts acting on its enforcement role in earnest, how in practice it manages to function independently.
Water Pollution
Another controversial part of the Act has been the way it proposes to tackle water pollution. The Act contains a duty on the government to produce a statutory plan to reduce discharges from storm overflows and to produce a report which addresses the action needed to eliminate these discharges. Both the plan and the report must be published by 1 September 2022.
Following immense public pressure, the government included a duty in the Act that obliges sewerage undertakers to secure a 'progressive reduction' in the adverse impacts of sewage discharges. Furthermore, the Environment Agency (EA) and Ofwat have launched a major investigation into sewage treatment works. Companies caught breaching their licences are likely to face a range of possible enforcement action, including prosecution.
Water Resources
Two consultations closed on 22 December 2021 and we expect to hear the government’s responses in due course. The first consultation relates to changes to the regulatory framework for abstraction and impounding licensing in England. The aims of integrating the regulation of abstraction and impounding licensing into the Environmental Permitting Regulations include a 'streamlined regulatory landscape' and 'proportionate, risk-based regulation'. The second consultation relates to amendments to the Environmental Permitting Regulations as applied to groundwater activities and related surface water discharge activities. The amendments aim to 'provide an improved hierarchy of regulatory controls for groundwater activities, to provide controls for a greater range of potential pollutants and to improve existing control measures for protecting groundwater from site-based activities'.
Clean air
The government faced pressure to include a target in the Act to reduce fine particulate matter (PM2.5) pollution in line with WHO guidelines of 10 micrograms per cubic metre by 2030. However, whilst the Act does contain an obligation on the government to set a target in relation to particulate matter, there is no requirement that this target meets WHO guidelines. DEFRA is instead planning to base the target via the long-established route of cost-benefit assessment, a process that contributed to the UK missing the EU air quality limit for nitrogen dioxide. The target must be laid before Parliament by 31 October 2022 and it will be interesting to see where the government lands on this.
Furthermore, it is expected that more cities will implement Clean Air Zones in 2022. Bath, Birmingham and Portsmouth already have Clean Air Zones and it is expected that Bradford will start charging in 2022, Bristol in summer 2022 and Greater Manchester on 30 May 2022. A Clean Air Zone is an area in the United Kingdom where targeted action is taken to improve air quality.
Plastic and Packaging
The Act contains a provision that allows for charges to be levied against sellers of single use items, both plastic and non-plastic. This inclusion recognises the need to move away from a “throwaway culture” more widely, as well as the importance of taking into account the use (and impact) of replacement non-plastic single-use products.
Single-use plastic items remain a primary concern and a consultation is currently underway seeking views on proposals to ban commonly littered single-use plastic items in England. DEFRA has set out its plans to ban single-use cutlery and plates, balloon sticks, and polystyrene cups and food containers in England. Responses to the consultation are due by 12 February 2022. Scotland has already announced a ban from June 2022 on the use of plastic cutlery, drink stirrers and food containers made from expanded polystyrene.
Through the Act, the government is bringing in a wide range of further measures to tackle plastic pollution and litter, including introducing a Deposit Return Scheme for drinks containers, where a small deposit placed on plastic bottles is intended to incentivise people to recycle. Furthermore, the Extended Producer Responsibility scheme will oblige packaging producers to cover the full cost of recycling and disposing of their packaging, and plans for Consistent Recycling Collections for every household and business in England will ensure more plastic is recycled.
The government is also introducing a plastic packaging tax from April 2022, set at £200 per tonne, on plastic packaging which doesn’t meet a minimum threshold of at least 30% recycled content.
Waste Exports
In its 2019 manifesto, the UK government promised to ban plastic waste exports to non-OECD countries. From 1 January 2021, the EU banned the export of all plastic waste to developing countries but the UK continues to allow these exports under a system of 'prior informed consent', under which the importer can refuse the waste.
DEFRA has said it will consult on banning the export of plastic waste to non-OECD countries during 2022.
Biodiversity
The government is required to set at least one long-term target relating to biodiversity and this must be laid before parliament by 31 October 2022. Not only this, but new developments must, by 2023, deliver a minimum of 10% increase in biodiversity, and this extends to nationally significant infrastructure projects, such as energy and major road projects. The Government is expected to consult on the format of the secondary legislation necessary to implement this.
In addition, the Act gives the government the power to amend the Habitats Regulations, which are regulations that provide key habitats and wildlife protection in England and Wales. This new power has caused concern amongst environmental activists and we are still awaiting the government’s Nature Recovery Green Paper which, among other things, will set out the changes it is likely to propose to the Habitats Regulations.
Forest Risk Commodities
DEFRA is consulting on plans to address the UK supply chain’s links to illegal deforestation, including due diligence requirements for 'forest risk commodities' such as cocoa, beef, soy, coffee, maize and palm oil. Measures outlined in the Act will make it illegal for large companies in the UK to use these forest risk commodities if they have not been produced in line with local laws on forest use. DEFRA is seeking views on which forest risk commodities and businesses the regulations will apply to and the best method of conducting due diligence exercises. Responses are due by 11 March 2022.
Chemicals Policy
UK REACH is the government’s regulatory tool for achieving risk control of chemicals in the UK. Chemical businesses operating in Great Britain should already have provided initial information under the UK REACH transitional provisions. However, the government has announced that the deadlines for providing the full registration data under UK REACH are to be extended and a consultation on such deadlines will take place in 2022.
We are also expecting the government to launch its second UK National Ecosystem Assessment in 2022, in line with its 25 year Environment Plan adopted in 2018. The first such assessment completed in 2011, was the first comprehensive assessment of the state of ecosystem services in the UK and has been hugely influential in the development of natural environment policy at home and abroad. The second assessment to be started in 2022 will update the picture after Brexit, evaluate in detail the effectiveness of current policies and measures and, accounting for scientific progress, explore future scenarios and policy options. The assessment will then be repeated towards the end of the 25 year period covered by the plan, to assess outcomes and inform future planning.
Conclusion
There is a great deal of change happening in relation to Environmental Law as the Government seeks to deliver 'the most ambitious environmental programme of any country on earth'. This is likely to have an impact on all organisations. We help organisations understand the changes that are taking place in environmental law and navigate such changes to ensure that they are managing any risks that arise and maximise any potential opportunities.