Risks of a Smoke-filled Brexit

Kate Harrison

The EU (Withdrawal Agreement) Act maintains EU law and protection until the end of 2020. After this point, EU laws governing air quality will become part of domestic regulation and ministers will be allowed to depart from EU interpretations of the law. Unfortunately, the government’s newly published Environment Bill 2019-20 will prove no substitute for our current level of protection when it comes to clean air.

In brief, the Bill outlines powers for new environmental targets, introduces a list of environmental principles, sets up the Office for Environmental Protection (“the OEP”) and includes some additional measures in relation to Air Quality. The Environment Bill amends the local Air Quality management framework, providing that national AQ strategies are to be reviewed every five years with a Secretary of State duty to report to parliament every year on progress. (1)

While it is the duty of the Secretary of State to set long term targets and ensure that targets are met, the targets them-selves could be expressed in ways which are easy to meet and difficult to enforce.

The Secretary of State is allowed a 15-year time span for targets to be achieved: (2) this period of time is little comfort for those who believe there are only 10 years within which to act to save a habitable planet. (3) The latest mortality estimate of 64,000 deaths annually from air pollution, for instance, means that 15 years at current levels of exposure would result in almost a million premature deaths in the UK alone. (4)

Worse still, there is nothing in the Bill that prevents Air Quality from deteriorating despite calls for a commitment to non-regression. Although the Bill states that targets should improve the natural environment this aim is a cumulative test of all the targets together.

Technically speaking, the environment could be improved with targets that are weaker than those we have now because air quality is so often below the required standard . In addition, Targets may be revoked or loosened if the Secretary of State is satisfied that meeting the target would ‘have no significant benefit’ or when, because of changes in circumstances … the environmental, social, economic or other costs of meeting it would be disproportionate to the benefits.’ (5), (6)

The government has claimed that for the first time it is enshrining Environmental Principles in law. But the environmental principles listed in the Bill (integration, prevention, precautionary principle, source principle, polluter pays principle) were already enshrined in (environmental) law through EU treaties. They bind all public authorities under EU environmental law and apply to administrative decisions.

By contrast in the Environment Bill what were legal principles become policy. In short, the power of environment law in the UK will be weakened. The Bill includes measures to set up an Office of Environmental Protection through which members of the public can make complaints when environment standards are not met.

However, enforcement powers are limited to those connected with a ‘failure to comply’ with environmental law. (6) The Secretary of State can remove any law from the definition of “environmental law” and ‘Failure to comply’ doesn’t mean straightforward non-compliance but ‘unlawfully failing to take proper account of environmental law when exercising … functions’. (7) Rather than requiring public bodies to obey environment law; instead they must take account of the law during their decision making processes.

The Bill does not propose the immediate action necessary to address the urgent problem posed by emissions that risk human health and the environment. It may be that we should look to Human Rights Law as a means of holding the government and public authorities accountable when Air Quality limits are breached. In a recent case, the Netherlands Supreme Court has decided that where environmental hazards exist Articles 2 and 8 of the European Convention obliges the government to take urgent and suitable steps to protect its citizens’ health and the environment. (8)

The Environment Bill does not meet these criteria.

Kate Harrison is a solicitor at Harrison Grant, London.