Authors: Michael Nicholson and Ben Reynolds (IEEP UK)

Yesterday saw Defra publish a report highlighting what it sees as the most significant environmental protection legislation from around the world from the last few years. Michael Nicholson and Ben Reynolds explore what we can learn from what is (and isn’t) included and about what it means for where the Government may be looking for inspiration for future environmental policy. 

It is not without reason why many have flagged that this publication of this report was significantly overdue – and more importantly later than was legally due (as mandated by section 21 of the Environment Act 2021). This of course was due in part to the delays stemming from elections and the incoming Government getting its feet under the desk, and taking the red pen to anything the last Government didn’t get across the line. But the insider reports of a change in steer from explicitly avoiding examples from the European Union in previous drafts, means that what is now included – and as we speculate below, why it has been included – is telling. But it raises the question of what the political sensitivities of a report like this might be. Are they linked to the question of how much prominence to give to EU developments, which were numerous during the time period being covered? 

Despite being legally obligated to produce this report, the report is welcome for taking a broad and sweeping view across the globe at developments in significant environmental protection legislation and speaks to the Government’s aims that it wants to take global leadership on the environment. To lead, you need to look up and see what is going on elsewhere in order to understand where we can adopt and adapt to enhance our legislative framework. After detailing many innovative and inspirational policies from around the world, what is less directly communicated is what the Government might do next following these case studies. But the report’s authors (or editors) have consciously included and excluded certain policy examples.  

Let’s start with what is included, and what might we draw from this. 

Air Quality  
It is helpful that the report highlights major revisions to the EU’s Ambient Air Quality Directive and the Industrial Emissions Directive – both of which tighten and improve upon the legacy EU rules that the UK put in place while it was a member. These however beg the question: will the UK look to these significant areas of policy and look to replicate or go beyond the higher standards set by our friends in the EU, for example if the Government produces a new Air Quality Strategy, and will this have the legislative clout to provide a robust equivalent to the EU’s new directives? 

Deforestation  
We are also particularly pleased that the report features the EU’s deforestation legislation. Despite concerns and delays in its implementation, the EU’s approach goes further and is more ambitious than legislation planned under the UK’s 2021 Environment Act. Moreover, is its inclusion a sign that the Government is interested in the EU approach? We hope so. Due to the complex and interwoven nature of the supply chains into both the EU and UK, and the effect of both delayed and promised legislation respectively, how will the reset talks influence the UK’s plans – might it align, and does it have the legislative mandate to do so? Article 116 and Schedule 17 of the Environment Act indicate that if the Government wanted to follow the EU’s approach, then a new law would be required because it refers explicitly only to illegal deforestation (where, in contrast, all deforestation is in scope of the EU’s new legislation). With Labour’s majority, parliamentary approval might be a formality, but it would be required and would take time.

And what might we take from the omission of some key pieces of EU legislative development in recent years? 

Water
We are, however, disappointed that the report does not include reference to the EU’s new Urban Wastewater Treatment Directive – a significant improvement upon the last directive that the UK implemented when a member of the EU. The new EU directive introduces stricter provisions on collection and treatment of wastewaters and introduces new provisions such as the introduction of extended producer responsibility for medicine and cosmetic producers. This omission is surprising considering Government’s most prominent environmental issue has been championing improvements to the state of our water, and specifically sewage discharges and wastewater management. Perhaps it is an indirect concession that there are more fundamental problems to fix with the UK’s water system to even meet existing commitments before looking to raise the bar further. If so, this would be a disappointing lack of ambition on what is a flagship issue for the Government. 

Chemicals, pesticides and harmful substances  
This section focuses too much on global frameworks, whereas key developments in Europe through EU REACH for example, the leading regulatory control regime in the world for harmful substances, are not mentioned.  This is an odd omission, as the EU REACH is arguably the most influential on the UK’s chemical regime, due to our proximity and close trading relationship (which is likely to get closer following the reset – if we can take anything from Chancellor Reeves’ statements to date).  

Climate 
On mitigating and adapting to climate change, the EU has been particularly busy over the last few years revising and strengthening earlier pieces of legislation including its Renewable Energy Directive, Energy Efficiency Directive, and Energy Performance of Buildings Directive – all pieces of legislation that the UK had previously implemented prior to Brexit but is now of course no longer obligated to introduce.

Most significantly though, is the omission of the EU’s Social Climate Fund legislation. The fund, which uses some of the revenue from the Emissions Trading Scheme and recycles these funds back into emissions reduction efforts and home energy efficiency improvements, particularly for the poor and disadvantaged, really should have been included in this report. The level of coverage around potential UK alignment with the EU ETS as part of the reset would suggest this is highly possible, so why wouldn’t the Government seek to mirror a key part of the EU scheme? What better way is there to gain support for climate measures than to recycle revenues back into, say insulating people’s homes or helping people to pay for the switch away from fossil-fuel boilers?   

In conclusion

It is highly possible that we are reading far more into this – considering the report doesn’t explicitly make any recommendations around those areas of policy it is seeking to explore further – but it would be politically naive to expect this, or any, Government to leak its intended new direction in the small print of a report it is obligated to put out, rather than save such announcements for a time that suits it strategically. 

For those interested in the interplay between EU and UK environmental policy, we will be releasing the update to last year’s divergence state of play report this June. Sign up to our newsletter to make sure you’re the first to receive a copy and invite to the launch event.  

Photo by Bob Brewer on Unsplash