Certainty is important in the legal profession. Principles have to be established and rules cemented for the law to hold integrity. Solicitors and barristers need to have a requisite degree of confidence when advising clients on their issues otherwise the legal system is reduced to nothing more than unhelpful guesswork. We hear that property and commercial lawyers itch for certainty so that proprietary rights can be properly analysed and apportioned.
And so too does environmental law lend itself to the hallowed principle, which is obvious when we think about the subject matter of environmental disputes. Particulate matter in the air, noise nuisance and water contamination, all ripe subjects for litigation, can be measured with precision in terms of micrograms per cubic meter, decibels and parts per million respectively. A family solicitor cannot quantify the grief of divorcing spouses, but the objective nature of environmental subject matter can usually be determined by the environmental practitioner, albeit one expert’s results may differ from another’s.
Referring to what would become the post-Brexit Environment Bill (2019-21) (the “Bill”), in the 2019 Queen’s Speech, Her Majesty said: ” … to protect and improve the environment for future generations, a bill will enshrine in law … legally-binding targets, including for air quality.” Here we saw a governmental commitment to put binding, measurable environmental targets on a statutory footing. To put it another way: articulated in the form of targets, we saw a promise of environmental certainty.
The Environment Bill
On 30 January 2020 the present Bill underwent its first reading. The Committee stage followed on 10 March 2021 but a carry-over motion on 26 January 2021 saw it kicked into the next parliamentary session. After all this, in spite of the Queen’s Speech, the Bill in its current state unfortunately contains no binding targets. So where are they?
Instead, clause 1 of the Bill gives the Secretary of State discretion to make regulations setting targets in respect of the natural environment, or the enjoyment thereof. A target must be made in respect of air quality, water, biodiversity, resource efficiency & waste reduction, and particulate matter. Targets must be objective, measurable and specify a date by which they are to be achieved. Therefore, the criticism may sound like one of form over substance: aren’t objective targets simply deferred to secondary legislation?
The problem with this approach, rather than having them contained within the Bill itself is, as a group of barristers at 39 Essex Chambers have noted, “that much of the emphasis in the draft provisions is unsurprisingly on targets being ‘met’. The effect of this might be that unambitious targets are set precisely with this outcome in mind, so that targets will tend to be less progressive or protective of the environment than many hope for.” The omission of targets in the Bill itself is therefore a real missed opportunity.
The Climate Change Act 2008
After all, they are not a new phenomenon. Section 1 of the Climate Change Act 2008 (as amended) provides that the Secretary of State must “ensure that the net UK carbon account for the year 2050 is at least 100% lower than the 1990 baseline”. Helpfully, many of the terms in the Act are defined. ‘1990 baseline’ is defined, as are other lower-level terms which results in a clear and measurable environmental target. The Bill could have mimicked this. Moreover, the 2008 Act was subject to the full legislative process and the target is legitimised by the parliamentary scrutiny that that entails. Regulations under the Bill, on the other hand, will be produced using the affirmative procedure. In theory, this gives Parliament greater power than other modes of creating secondary legislation; although in reality the last time the House of Commons failed to pass an affirmative instrument was over 40 years ago.
The Bill represents a missed opportunity to enshrine into primary legislation more binding environmental targets. The lack of them is suggestive of a government not committed to the environment. The barristers quoted above have noted that the current state of the Bill’s target provisions “will leave the door wide open to the regressive weakening of environmental standards where the politics of the day support such a course.” Let us hope the Coronavirus pandemic does not guide decision makers towards weakened environmental standards as focus turns to reviving affected industries.