Environment & Climate Change Laws And Regulations 2024

• Published date: 18 March 2024
• Law Firm: Steptoe LLP
• Author: Mr Darren Abrahams and Tom Gillett

1. Environmental Policy and its Enforcement

1.1 What is the basis of environmental policy in your jurisdiction and which agencies/bodies administer and enforce environmental law?

The environment is a devolved policy competence, which means that England, Scotland, Wales and Northern Ireland have powers to make their own legislation within the environmental sphere and have increasingly taken divergent legislative and policy routes.

In England, the Department for Environment, Food and Rural Affairs (DEFRA) is responsible for developing environmental policy and leads on negotiations internationally. Other government departments also contribute to environmental policy; for example, the (new) Department for Energy Security & Net Zero (DESNZ) leads on energy supply, energy efficiency and meeting the UK's legally binding commitment to reduce emissions of greenhouse gases to 'net zero' by 2050, and the Department for Transport (DfT) has responsibility for reducing transport pollution by promoting lower-carbon transport and new technology.

The introduction of the Environment Act 2021 made a significant change to the way environmental policy is developed across the UK, driven by the UK's exit from the EU. One of the objectives for the Environment Act 2021 is to establish a framework to govern how environmental law will be created and modified in an independent UK. The focus is on the mechanisms for shaping future environmental law rather than changing the substantive laws. See section 12 (Updates) for a detailed analysis of the Environment Act 2021.

The Government's 25-year plan for the environment (11 January 2018) in England set out longer-term plans for the environment, and committed to refresh the plan every five years. This commitment was enshrined in the Environment Act 2021 and the first review was published in February 2023 as the Environmental Improvement Plan 2023. The Office for Environmental Protection (OEP) was created in November 2021, under the Environment Act 2021, to hold Government and other public authorities to account. Its work primarily covers England and Northern Ireland., as well as 'reserved matters' across the UK (i.e. matters on which only the UK Parliament in Westminster can make legislation).

Each of the nations of the UK has a public body for administering and enforcing environmental law, and each is structured slightly differently. The Environment Agency (EA) is the executive, non-departmental public body for England, and regulates (among other things) major industry and waste, the treatment of some contaminated land, water quality, flooding, and some aspects of conservation. The EA's counterparts are Natural Resources Wales (NRW), the Scottish Environment Protection Agency (SEPA), and the Northern Ireland Environment Agency (NIEA).

Local authorities also administer and enforce certain aspects of environmental law, including aspects of the contaminated land regime, regulation of certain industrial activities and statutory nuisance.

Other national agencies/bodies that enforce and administer environmental law include: the Health and Safety Executive (HSE), which regulates chemicals; the Water Services Regulatory Authority in England and Wales (Ofwat); Natural England; NatureScot in Scotland; the Department of Agriculture, Environment and Rural Affairs (DAERA) in Northern Ireland; and the Office for Nuclear Regulation (ONR) in the UK.

1.2 What approach do such agencies/bodies take to the enforcement of environmental law?

The EA takes an 'outcomes focused' approach under its Enforcement and Sanctions policy (last updated on 11 December 2023) (Policy). The four key outcomes in the Policy are: stopping illegal activity from occurring or continuing; putting right environmental harm or damage; bringing illegal activity under regulatory control; and punishing and deterring offenders.

The EA applies core principles to its enforcement approach: proportionality; having regard to the 'growth duty' (the statutory obligation on regulators to have regard to the desirability of promoting economic growth, alongside the delivery of protections set out in relevant legislation); consistency; transparency; targeting enforcement action; and accountability.

1.3 To what extent are public authorities required to provide environment-related information to interested persons (including members of the public)?

All public authorities must, on request, provide public access to environmental information, under the Environmental Information Regulations 2004 (EIR). They must disclose information unless one of the exceptions in the EIR applies. Even then, information can be withheld only if the balance of public interest favours withholding disclosure: the presumption is in favour of disclosure. The definition of 'environmental information' under the EIR is broad and can include information on measures and activities likely to affect environmental elements and substances as well as the state of the environment and factors likely to impact on it.

2. Environmental Permits

2.1 When is an environmental permit required, and may environmental permits be transferred from one person to another?

The Environmental Permitting (England and Wales) Regulations 2016 (as amended) (EP Regulations) govern environmental permitting in England and Wales. The EP Regulations combine a number of (historic) permitting and licensing regimes, and introduced a more coherent permitting regime.

An 'environmental permit' (EP) may be required for activities that: pollute the air, water or land; increase flood risk; and/or adversely affect land drainage. A single EP can cover multiple activities.

An EP is required for: 'installations' (one of a defined list of industrial facilities, manufacturing sites or other business premises that may produce or emit potentially harmful substances); waste operations; mining waste operations; combustion plant; small waste incineration plant; mobile plant; and solvent emissions activity.

EPs can be transferred from one holder to another, in whole or in part, subject to conditions. The process for making a transfer varies depending on the type of EP. Transferring an installation permit is, for example, more onerous than the application to transfer an EP concerned solely with water discharge.

2.2 What rights are there to appeal against the decision of an environmental regulator not to grant an environmental permit or in respect of the conditions contained in an environmental permit?

The EP Regulations set out the grounds of appeal. These include the right of appeal for a person whose application has been refused (Regulation 31(a)) and where conditions have been imposed (Regulation 31(b) and (c)).

Appeals are made to the Secretary of State for Environment, Food and Rural Affairs (SoS) and heard by the Planning Inspectorate. The (Planning) Inspector will normally act as a delegate of the SoS for the purposes of the appeal hearing; however, the SoS may become involved where a case is particularly controversial or significant. Potential outcomes include the quashing of EP conditions, or directing the granting or variation of an EP.

2.3 Is it necessary to conduct environmental audits or environmental impact assessments for particularly polluting industries or other installations/projects?

The EP Regulations impose specific requirements on different types of activity, and the relevant regulator is obliged to inspect regulated facilities frequently to ensure compliance with those requirements.

For new projects, the local planning authority may perform Environmental Impact Assessments (EIA), which are required under the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (EIA Regulations). This is to ensure that the authority accounts for the relevant environmental information and the effects of a proposed development before giving consent. An EIA must be carried out if a development falls within Schedule 1 of the EIA Regulations. These are generally developments over a certain size, such as power stations and motorways.

2.4 What enforcement powers do environmental regulators have in connection with the violation of permits?

Environmental law in England is predominantly a matter of criminal law, with the ultimate sanction being a prosecution before the Courts.

The regulator may also use civil sanctions as an alternative to prosecution in certain situations. For example, there is an option for an enforcement undertaking to be given by an operator who has committed an offence. Enforcement undertakings are a unique form of enforcement action because, rather than waiting for the regulator to impose sanctions, the business comes forward with an offer, undertaking to put in place certain measures (to put right the effects of their offending and the impact on third parties, and make sure the offence cannot happen again). If the enforcement undertaking is accepted, the regulator can no longer prosecute for the breach in question.

Variable Monetary Penalties (VMPs) are another form of civil sanction used by regulators as an alternative to pursuing a criminal prosecution. From December 2023, the EA can impose VMPs for offences under the EP Regulations. The existing cap on VMPs of '250,000 was also removed, meaning that potential penalties are unlimited.

3. Waste

3.1 How is waste defined and do certain categories of waste involve additional duties or controls?

'A substance or object which the holder discards or intends or is required to discard' will be 'waste': this definition comes from the EU Waste Framework Directive 2008/98/EC (WFD) and is implemented in England and Wales by section 75 of the Environmental Protection Act 1990 (EPA 1990), as amended following the UK's exit from the EU. It is a definition that has generated a great deal of litigation over the years, and continues to do so. Once something is waste, it is subject to regulatory control, with the level of control becoming more onerous with the...