Comment: Environment law after Brexit Published on: 6 February 2019 Writing for The Conversation, Dr Ole Pederson comments on how the government's draft environment bill is a laudable but disappointing attempt to rewrite the law after Brexit Savo Ilic / shutterstock , Behind the scenes, away from the Commons chamber and the TV cameras, the UKās parliamentary committees continue to debate and scrutinise the mountain of legislation needed in order to secure an orderly exit from the EU. Among the legislation currently under consideration is the governmentās proposed . The bill itself is an attempt to fill some of the that will inevitably emerge in UK environmental law once the country leaves the EU. For instance, the European Commission currently has the ability to take member states to the EU Court of Justice, as it has threatened to do with the UK, which is not presently not complying with limits. After Brexit, the EC would have no such power. Overall, there are several encouraging aspects to what is the first general environmental bill before parliament in more than 20 years. They include, for example, the first explicit incorporation into UK law of the that have shaped EU environmental law. The UK has been referred to Europeās highest court for failing to tackle illegal levels of air pollution. Melinda Nagy / shutterstock Another positive initiative is the proposal to create a new āwatchdogā in the form of an office for environmental protection whose job it will be to monitor the implementation of environmental law. On closer scrutiny, though, the bill is a missed opportunity. āPrinciplesā do not guarantee certain outcomes First, the incorporation of environmental principles into UK law is unlikely to provide the safe harbour that hope they do. The bill does require the environment secretary to prepare a statement setting out his or her interpretation of the principles. But, while other government ministers must then take the statement into consideration ā they do not necessarily have to obey it. The duty also applies only to central government ministers and not public authorities more widely. In any case, environmental principles are rarely able to dictate a specific eco-friendly outcome. This is because they do not āestablishā but instead invite a decision maker to consider competing interests through procedures such as risk assessments. For example, the UKās National Planning Policy Framework (NPPF) contains a presumption in favour of the principle of , which at first glance sounds important from an environmental perspective. In reality, however, the principle and the NPPF still allows planning authorities lots of scope to decide what constitutes sustainable development in their local area, whether it is housing developments or protecting the greenbelt. Sustainable development? Itās not clear from āprinciplesā alone. Neil Mitchell / shutterstock The environment āwatchdogā needs more teeth Though the creation of an āoffice for environmental protectionā represents a potentially bold step by the government, its scope is too limited. The bill proposes that the office must āmonitor the implementation of environmental lawā. However, this doesnāt mean much as there is no reference to any standard to measure this implementation against. The reference to āimplementationā does make sense if the UK develops environmental law in response to EU or international obligations. But the whole point of Brexit is to do away with EU law and, as it stands, the bill contains no powers for the proposed office to monitor the implementation of international environmental law. Its lack of legal enforcement powers are also disappointing. The office would be limited to issuing so-called ādecision noticesā where a āseriousā breach of the law has taken place. But what āseriousā means is not defined in the bill. A ādecision noticeā also has little legal power as the recipient is merely obliged to respond in writing, explaining whether they agree with it and whether they intend to take any steps in response. A public authority handed a ādecision noticeā by the office for environmental protection could simply answer āno and noā, and the office would have little power to enforce its findings. We need more innovative enforcement Many experts had hoped the proposed office would be given . The air pollution cases brought against the UK government nicely highlighted the importance of fines, when the government conceded that it hoped to be compliant with EU emissions standards by 2020. That year was chosen not by science or policy plausibility, but because 2020 was likely to be the earliest point when the European Commission . However, a conscious decision has been made not to give the office for environmental protection any powers to fine the government. In light of this, the failure to include more innovative methods of enforcement is a disappointment. The bill ought to include provisions for the office to negotiate so-called with the government, for instance. These are written agreements between a regulator and offender. The offender must agree to take specific steps to remedy the illegal activities, including restoring the environment to its previous state, and compensating any third parties who have suffered harm. Enforcement undertakings are by the UKās Environment Agency and have proved to be cost effective and efficient. In sum, the governmentās proposal for a new post-Brexit environmental regime is laudable and disappointing in equal measures. Consequently, the bill is much like the governmentās attempt to deliver Brexit itself: it is difficult to please everyone. , Reader in Environmental Law, This article is republished from under a Creative Commons license. Read the . 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