Environment Act 2021

Policy background

Exiting the European Union (EU)

12. On 1 January 1973, the UK joined the European Economic Community, now the European Union. The European Union Referendum Act 2015 made provision for holding a referendum in the UK and Gibraltar on whether the UK should remain a member of the EU. The referendum was held on 23 June 2016.
13. Following the outcome of the referendum, the European Union (Notification of Withdrawal) Act 2017 received Royal Assent on 16 March 2017. On 29 March 2017, the then Prime Minister Theresa May gave notification of withdrawal of the UK from the EU under Article 50(2) of the Treaty on European Union. The European Union (Withdrawal) Act 2018 received Royal Assent on 26 June 2018. Its purpose was to give effect to withdrawal and to provide a functioning statute book upon the UK’s departure from the EU. Section 16 of the Withdrawal Act required the Secretary of State to publish a draft Bill to make provision for a new environmental governance body and a requirement for Ministers of the Crown to have regard to a new policy statement on environmental principles when making policy following the UK’s withdrawal from the EU.
14. The Withdrawal Agreement negotiated by Prime Minister Boris Johnson was agreed by European leaders at the European Council on 17 October 2019. In addition, the government made a unilateral declaration concerning the operation of the ‘Democratic consent in Northern Ireland’ provision of the Protocol on Ireland/Northern Ireland, which was published on the same day. The European Union (Withdrawal Agreement) Act 2020 received Royal Assent on 23 January 2020, ratifying the EU-UK Withdrawal Agreement.
15. On 31 January 2020, the UK left the European Union and the Withdrawal Agreement concluded with the EU entered into force.
16. On 2 March 2020, the first round of negotiations began. A EU-UK Trade and Cooperation Agreement was agreed by the UK and EU on 24 December 2020. The European Union (Future Relationship) Act 2020 received Royal Assent on 30 December 2020. The Transition Period provided for in the Withdrawal Agreement ended at 11pm on 31 December 2020.

Part 1: Environmental Governance

17. The Draft Environment (Principles and Governance) Bill 2018 was published for parliamentary pre-legislative scrutiny on 19 December 2018, fulfilling requirements for publication of a draft Bill under section 16 of the European Union (Withdrawal) Act 2018. Part 1 of this Act updates that Draft Bill in light of pre-legislative scrutiny reports by the Environment, Food and Rural Affairs Select Committee and Environmental Audit Committee in the previous parliament, which were published on 30 April 2019 and 24 April 2019 respectively. The government of the day responded to these reports when it introduced its Environment Bill, which the current Act largely takes forward, in October 2019.
18. Most of the UK’s environmental law and policy has derived from the EU, and EU structures and processes have provided for oversight and enforcement. The Act sets out the measures needed to ensure that there is no environmental governance gap now that the UK has left the EU. The Act will require the setting of long-term, legally binding and joined-up targets tailored to England, embed consideration of environmental principles in future policy making and establish the independent Office for Environmental Protection.
19. The Act places a statutory requirement for the government to prepare and maintain an Environmental Improvement Plan (EIP), the first being the 25 Year Environment Plan published in January 2018, and creates a new statutory cycle of monitoring, planning and reporting to ensure continuing improvement to the environment. It also establishes a new framework for setting long-term, legally binding and joined-up targets (covering at least air quality, resource efficiency and waste reduction, water and biodiversity). As part of the framework for setting targets, the Act includes a specific duty to set a target for annual mean concentrations in ambient air of the air pollutant of greatest harm to human health: fine particulate matter (PM2.5). The Act also includes a specific duty to set a separate target to halt a decline in species abundance by 2030.
20. The Act legislates for environmental principles to protect and enhance the environment by making environmental considerations central to the policy development process across government. The principles work together to legally oblige Ministers of the Crown to ensure nature and the environment are proactively considered in the policy-making process. The Statement on Environmental Principles will set out how the principles should be interpreted and applied by policy makers.
21. The Act also creates a new public body – the Office for Environmental Protection (OEP) – as a domestic independent body that will be responsible for taking action in relation to serious breaches of environmental law. Through its scrutiny and advice functions, the OEP will monitor progress in improving the natural environment in accordance with the government’s domestic environmental improvement plans and targets. It will be able to provide government with written advice on any proposed changes to environmental law. Through its complaints and enforcement mechanisms, the OEP will take a proportionate approach to managing compliance issues relating to environmental law.
22. Ministers will be required to make a statement to Parliament setting out the effect of new primary environmental legislation on existing levels of environmental protection provided for by environmental law. These statements will be published and open to scrutiny by Parliament, environmental stakeholders and the broader public as the proposed new primary environmental legislation passes through Parliament.
23. The Act also includes a commitment to review the biggest developments in environmental legislation from around the world every other year and use the findings from that review when considering the UK’s own environmental plans.

Part 2: Environmental Governance: Northern Ireland

24. Under the Northern Ireland Act 1998, the Northern Ireland Assembly has legislative competence for a number of areas of law. The Act allows the Office for Environmental Protection (OEP) to exercise its functions in Northern Ireland, subject to the approval of the Northern Ireland Assembly.
25. The Environment Act sets out measures that would provide the OEP with equivalent powers in England and Northern Ireland, and ensure that operationally it can function across both administrations. In some cases, this has meant providing for slightly different processes that reflect the different legal and policy frameworks. In others, it has meant ensuring appropriate Northern Ireland representation, for example on the board of the OEP.

Part 3: Waste and Resource Efficiency

26. In the 25 Year Environment Plan, the government committed to using resources from nature more sustainably and efficiently, and to minimising waste. In December 2018, the then government published its Resources and Waste strategy, Our Waste, Our Resources: A strategy for England , to help move towards a more sustainable, circular economy. Resources and waste management is based on a ‘waste hierarchy’, which sets a priority order when shaping waste policy and managing waste. It gives top priority to preventing waste in the first place. When waste is created, it gives priority to preparing it for re-use, then recycling, then recovery, and last of all disposal (for example, landfill). The Act will provide the legislative framework needed to deliver on many of the commitments in the Resources and Waste Strategy, by introducing new powers and amending existing legislation such as the Environment Act 1995 and Environmental Protection Act 1990.
27. New powers in this Act allow for obligations to be placed on producers in relation to the re-use, redistribution, recovery and recycling of products. These powers replace and update producer responsibility measures in sections 93 to 95 of the Environment Act 1995 and Producer Responsibility Obligations (Northern Ireland) Order 1998 (S.I. No. 1998/1762 (N.I. 16)), which are repealed by the Act. These changes also clarify that producer responsibility obligations can include prevention of waste and redistribution of products, making it clear that action can be taken on food waste. Producer responsibility schemes are already in place for four waste streams (including packaging waste), putting a level of financial responsibility on producers for their goods at end of life. The Act allows the government to require producers to pay the full net cost of managing their products at end of life and to incentivise them to design their products with sustainability in mind, with the aim of ultimately reducing consumption of raw materials.
28. The Ecodesign for Energy-Related Products and Energy Information (Amendment) (EU Exit) Regulations 2019 (S.I. No. 2019/539) amended the Ecodesign for Energy-Related Products Regulations 2010 (S.I. No. 2010/2617) on IP completion day to allow for mandatory product standards (which may relate to energy efficiency and resource efficiency) to be set by the government for energy-related products. The Act complements these provisions by enabling resource efficiency standards to be set for non-energy-related products. The Act will also allow for clear provision of information to enable consumers to identify products that are more durable, repairable and recyclable. These measures are aimed at reducing consumption of materials.
29. The Climate Change Act 2008 makes provision for charging for the supply of single-use carrier bags. The introduction of a 5p plastic bag charge in England in 2015 has resulted in a 90% decrease in plastic bag sales by main supermarket retailers . The Act allows for the introduction of charges for any single-use item in England and Wales and any single use plastic item in Northern Ireland.
30. The Environmental Protection Act 1990 underpins local authorities’ duty to collect household waste in England from domestic properties. Current arrangements ensure that every local authority collects some recyclable materials. Local authorities, however, do not all collect the same range of materials, which has caused confusion as to what can be recycled. The Act stipulates a consistent set of materials that must generally be collected individually separated from all households and businesses in England, including food waste.
31. The Act also allows for the introduction of deposit return schemes where consumers pay an up-front deposit when they buy an item (such as a drink in a bottle or can), which is then redeemed on return of the used item. These schemes can increase recycling and reuse, and reduce littering.
32. The rules for transporting, storing or disposing of waste include the general requirement to have an environmental permit if disposing of or recovering waste and the requirement for carriers, brokers of or dealers in waste to register with the Environment Agency. Illegal waste activity was estimated to have cost the English economy over £600 million in 2015. The Act helps prevent waste crime by modernising the regulatory framework; deter waste crime by ensuring regulators can take effective enforcement action; and detect waste crime by allowing for electronic waste tracking.
33. The Act also contains measures to improve the proportionality and fairness of enforcement against littering, as part of the continued delivery of the Litter Strategy for England .
34. The Act expands powers in the Environmental Protection Act 1990 to prohibit or restrict waste imports and exports, so that regulations can make provision about, or in connection with the regulation of imports and exports of waste, and the transit of waste for export. This replaces powers previously available in the European Communities Act 1972 to regulate imports and exports of waste.
35. The Act also amends the Environmental Protection Act 1990 and, the Waste and Contaminated Land (Northern Ireland) Order 1997, to provide the Secretary of State, Welsh Ministers and the Department of Agriculture, Environment and Rural Affairs with powers to make regulations on hazardous waste. This replaces powers previously available in the European Communities Act 1972 and ensures that existing legislation can continue to be updated to provide controls on the management of hazardous wastes.

Part 4: Air Quality and Environmental Recall

36. The UK has legally binding targets to reduce overall national emissions of five air pollutants (fine particulate matter, ammonia, nitrogen oxides, sulphur dioxide, and non-methane volatile compounds) by 2020 and 2030. The previous government committed to delivering clean air in the 25 Year Environment Plan, and consulted on a draft Clean Air Strategy (CAS) in May 2018, which received 711 responses. The final CAS was published in January 2019. It sets out the comprehensive actions required across all parts of government to improve air quality, at both the national and local levels, including by setting new and ambitious goals, bringing forward targeted legislation, investment and policies. This Act implements key proposals outlined in the CAS, enabling greater local level action on air pollution, to tackle key sources of pollutants, which will help the UK achieve its overall national emission obligations.
37. The Environment Act 1995, the Clean Air Act 1993 and the Environmental Protection Act 1990 establish frameworks for local authorities to address air quality. In its manifesto, the Conservative Party committed to introducing strict new laws on air quality, and introducing new environmental targets, including for air quality.
38. The Environment Act 1995 establishes the Local Air Quality Management Framework, under which local authorities have obligations to assess and manage the quality of the air in their areas. Where specified standards and objectives are not being met, authorities are required to declare Air Quality Management Areas and then prepare action plans. Amendments made to the 1995 Act by this Act strengthen these duties by giving greater clarity on the requirements of action plans enabling greater collaboration between local authorities and all tiers of local government, as well as with Relevant Public Authorities, in the creation and delivery of those plans. It also requires the Secretary of State to regularly review the National Air Quality Strategy, which specifies the standards and objectives that local authorities need to achieve.
39. Part 3 of the Clean Air Act 1993 is the UK’s main legislative framework for the control of pollution from domestic solid fuel burning, a main contributor to fine particulate matter emissions in the UK. It gives local authorities the power to make an order designating parts of their area as Smoke Control Areas (SCAs), in which it is an offence to emit smoke from chimneys of buildings and chimneys that serve the furnace of any fixed boiler or industrial plant. The amendments in this Act enable local authorities to issue civil financial penalties instead of criminal prosecutions, with the aim of making enforcement quicker, simpler and more proportionate. It removes current statutory defences (including the use of an exempt appliance or an authorised fuel) which currently hinder enforcement. It strengthens the existing penalties for the sale of controlled solid fuels in SCAs, and ensure consumers are aware that it is an offence to buy these fuels for use in SCAs. It also gives local authorities the power to broaden the scope of their SCAs to include moored vessels, subject to local consultation.
40. Part 3 of the Environmental Protection Act 1990 stipulates what can constitute a statutory nuisance. This includes smoke from premises, except private dwellings in SCAs which are exempt. The amendment of the 1990 Act by this Act removes this exemption in England so that a local authority will be able to pursue somebody who emits smoke from private dwellings in SCAs where it is prejudicial to human health or causing a nuisance.
41. In late 2015, the government became aware that vehicles on the road in the UK were emitting more NOx (a controlled pollutant) than their emission test results would suggest. This was a result of software fitted to the vehicles. The situation highlighted the limits of the government’s powers to compel a recall of vehicles or engines for non-road mobile machinery (NRMM) for reasons of environmental non-conformity or failure. This is in contrast to the government’s power to compel a recall of any product (including road vehicles and NRMM) on the basis that it is a "dangerous product" (or "not a safe product") pursuant to the General Product Safety Regulations 2005 (S.I. 2005/1803).
42. Measures in this Part also enable the Secretary of State to compel manufacturers of vehicles, vehicle components and NRMM to recall their products for reasons of environmental failure.

Part 5: Water

43. The water industry was privatised in 1989 pursuant to the Water Act 1989. The regulatory regime for the privatised water industry is principally set out in the Water Industry Act 1991, and amendments made to that Act (notably in 2003 and 2014). Water abstraction licensing was introduced in the 1960s; the licensing regime is principally set out in the Water Resources Act 1991 and enables regulators to act to protect the environment and the needs of water users. The legislative regime providing for flood risk management by the government and other public authorities is set out in various pieces of legislation; the principal primary legislation relating to the powers and duties of internal drainage boards is the Land Drainage Act 1991.
44. The government committed to delivering clean and plentiful water and reduced risk of harm from environmental hazards in the 25 Year Environment Plan.
45. The Act sets out measures to provide for policy outcomes for water resources, drainage including storm overflows, and flood management through:
    • improved water resources planning, which facilitates collaborative regional planning and considers the needs of all sectors of water users, including the environment;
    • placing on a statutory footing drainage and wastewater planning to assess risks to sewerage networks and network capacity;
    • adding a new chapter on storm overflows to water industry legislation places new legal duties on the government, sewerage undertakers wholly or mainly in England and the Environment Agency. The chapter requires government to produce a plan to reduce discharges from storm overflows and their harm to the environment and to report on the plan. It also places a requirement on government to prepare a report on the actions needed to eliminate storm overflows. It also places new duties on sewerage undertakers to report on storm overflows in near real time, monitor the water quality above and below a discharge and to progressively reduce the harm of storm overflows. It also requires both sewerage undertakers and the Environment Agency to report annually on storm overflows;
    • modernising water regulation by reforming elements of the abstraction licensing regime to link it more tightly to the government’s objectives for the water environment; and
    • enabling updates to be made to the valuation calculations relevant to the apportionment of internal drainage board (IDB) charges in secondary legislation, allowing for the creation of new or expansion of existing IDBs where there is a local desire to do so.

46. It also includes measures to protect water quality in surface and groundwater, by enabling updates to the lists of priority substances that pose a threat to water bodies in line with the latest scientific knowledge, in the absence of powers under section 2(2) of the European Communities Act 1972.

Part 6: Nature and Biodiversity

47. Nature is currently in decline and much of England’s wildlife is deteriorating. The UK has a number of international and legislative commitments to take urgent and effective action to halt the loss of nature or biodiversity.
48. Since the 25 Year Environment Plan set the ambition towards embedding a broad ‘environmental net gain’ principle in the planning system, this government has focussed on embedding the principle of biodiversity net gain. In July 2018, the revised National Planning Policy Framework strengthened planning policy on biodiversity net gain by making it clearer that all development in scope should deliver biodiversity net gains.
49. Section 40 of the Natural Environment and Rural Communities (NERC) Act 2006 requires all public authorities carrying out functions in England (together with HMRC carrying out functions in Wales) to have regard to conserving biodiversity when delivering their functions. The existing wording does not adequately reflect the aspiration or language of the 25 Year Environment Plan. Shifting the focus of the duty to an active requirement to seek the further conservation and enhancement of nature should better align public authorities’ action on biodiversity with the government’s ambition.
50. Spatial plans enable the public, private and charity sectors to direct investment in nature to where it can best benefit the natural environment, and have an important role to play in delivering the government’s commitment to nature recovery. Although such plans do exist in some areas of England, they are often produced by a variety of bodies working at different spatial scales. Local Nature Recovery Strategies (LNRSs), created under this Act, will put spatial planning for nature on a statutory footing, and will support local action by consistently mapping important existing habitats and opportunities to create or restore habitat. For example, the biodiversity net gain consultation identified a need for local plans for nature to target biodiversity increases. Developed through a collaborative approach, LNRSs will also support the delivery of a Nature Recovery Network by acting as a key tool to help local partners better direct investment and action that improves, creates and conserves wildlife-rich habitat.
51. A Species Conservation Strategy is a new mechanism to safeguard the future of species at greatest risk. By undertaking surveying, planning and zoning, and developing measures to mitigate or compensate for any impact on the species up front, local populations can be secured. A Protected Site Strategy will seek to achieve a similar purpose in respect of protected sites. There will be a variety of solutions that a strategic approach can lead to, depending on the factors affecting the site’s condition and the local circumstances. These Strategies will improve the protection and conservation of the most vulnerable species and habitats, whilst also reducing delays to development.
52. Much of the wildlife-rich habitat of the UK has been lost over the last century and many species are in long-term decline. The Environment Act will introduce powers to amend the Conservation of Habitats and Species Regulations 2017 (S.I. No. 2017/1012) and improve the Habitats Regulation Assessment to ensure legislation adequately supports the government’s strategy for nature while maintaining and, where possible, enhancing existing environmental protections.
53. To tackle deforestation in supply chains, new provisions will place requirements on larger businesses operating in the UK that use agricultural commodities associated with wide-scale conversion of forest, referred to as ‘forest risk’ commodities. These new provisions will prohibit businesses in scope from using forest risk commodities that were produced on land that was illegally occupied or used. They will also require regulated businesses to establish, implement, and report annually on a due diligence system that assesses and mitigates the risk of illegally produced commodities entering their supply chain. The Secretary of State will have powers to enforce these requirements, and will be required to report to Parliament every two years on the law’s effectiveness and any steps they intend to take to ensure that this policy is delivering as intended.
54. This Act also includes measures covering forestry and street trees, including amendments to the Forestry Act 1967 to tackle illegal felling, and measures requiring local highway authorities to consult the public before felling any street trees. Current regulation on tree felling include felling licences in the Forestry Act 1967, provisions in the Highways Act 1980, Tree Preservation Orders (TPOs) under the Town and Country Planning Act 1990. Part 7: Conservation Covenants.
55. This Part provides for a legal tool that landowners can use to secure conservation benefits when land is sold or passed on. Conservation covenants are private, voluntary agreements between a landowner and responsible body, such as a conservation charity or public body. They provide for the conservation of the natural environment and heritage assets for the public good. They can bind subsequent owners of the land, so have the potential to deliver long-lasting conservation benefits.
56. In the 25 Year Environment Plan, the government set out its plan for recovering nature. Individual landowners can play an important role in conservation efforts, but under the current law it is difficult to ensure that legal obligations for conservation survive once the land has been sold or passed on. As a result, conservation opportunities are missed or fail to secure long-term, sustainable outcomes. Complex legal workarounds have sometimes been used but these can be costly and do not always appeal to landowners. Conservation covenants are used in other countries including New Zealand, the USA, Canada and Scotland.
57. The Law Commission examined the case for conservation covenants and concluded that legislation should be introduced, preparing a draft Bill in 2014. The key changes to the Law Commission’s draft Bill are to allow for-profit bodies to apply to become responsible bodies and to require that conservation covenant agreements are executed as deeds.

Part 8: Miscellaneous and General Provisions

58. The use of chemicals in the EU is regulated by Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency (the "REACH Regulation"). The REACH Regulation forms part of retained EU law by virtue of the European Union (Withdrawal) Act 2018 ("the Withdrawal Act"). The REACH Enforcement Regulations 2008 (S.I. No. 2008/2852) provide for the contravention of various provisions of the REACH Regulation to be a criminal offence and set out which domestic bodies enforce those offences. Part 8 and Schedule 21 give the Secretary of State the power to amend the REACH Regulation and the REACH Enforcement Regulations 2008 (S.I. No. 2008/2852) as they apply in the UK at the end of the transition period, in order to keep them up to date and respond to emerging needs or ambitions for the effective management of chemicals. They also give the Devolved Administrations the equivalent power to amend the REACH Enforcement Regulations 2008.