At the end of January, we’re expecting the Welsh Government to publish a White Paper setting out its proposals for a bill to address accountability and enforcement gaps in environmental governance that resulted from leaving the EU. So, what does it mean and what are we expecting it to cover?
Context
For environmental law and governance in Wales and the UK, leaving the European Union had significant implications. The environment is a devolved matter in Wales, with a few exceptionsincluding nuclear, oil, gas and coal, but the majority of environmental law and policy in the UK derives from the EU. European law and policy had a central role in regulating and managing both the marine and terrestrial environment, including the regulation of chemicals, pesticides, air and water quality, the protection of our natural environment and environmental impact assessments.
EU environmental law and governance
The overall aim of European environmental policy is to achieve a ‘high level of environmental protection’, and EU law ensures that environmental requirements are embedded in primary legislation. Specialist environmental agencies such as the European Chemicals Agency and the European Environment Agency (EEA) deliver many functions such as providing independent environmental data, monitoring and evaluation, interpretation of law and guidance on implementation.
As a member of the EU, the UK had access to the European Court of Justice (CJEU), which interprets law, enforces law through infringement proceedings and settles legal disputes between national governments and EU institutions. Crucially, the architecture of European environmental governance allows for citizens, companies or organisations to take legal action against an EU institution on legal breaches. In its analysis the Institute for Government found that environmental cases were the most likely to see the UK end up in the European Court. Leaving the EU meant that these structures and frameworks would no longer be accessible or applicable for the UK, creating a significant environmental governance gap.
Implications for Wales and the UK
Despite pledging to retain environmental standards back in 2017, the Welsh Government has been slow to address this. As a result, Wales is the last of the UK nations to take the necessary steps to fill the environmental governance gap. The UK and Scottish Governments legislated in 2021, incorporating EU environmental principles in law, and establishing independent environmental governance bodies intended to replace the EU’s scrutiny and enforcement role. The Office for Environmental Protection (OEP) was set up by the UK Government and covers England, Northern Ireland and reserved matters across the UK, and Environmental Standards Scotland (ESS) operates in Scotland.
Since its establishment the OEP has considered a wide range of issues such as the effectiveness of environmental assessments and the regulation of combined sewer overflows (CSOs), where it identified possible compliance failures by the Department for Environment, Food Rural Affairs (Defra), the Environment Agency and Ofwat in England. In November 2023 it launched a call for evidence on Good Environmental Status (GES) for UK marine waters.
Environmental Standards Scotland has considered matters such as NatureScotl’s compliance with its duty to protect and promote the sustainable use of natural resources, the impact assessment regime associated with planning/ development control in respect of Special Protection Areas, and the delivery of climate change targets by local authorities.
Interim environmental governance arrangements in Wales
The Welsh Government did establish non statutory interim environmental governance arrangements in Wales after the end of the Brexit transition period. The role of the Interim Environmental Protection Assessor Wales (IEPAW) was created with a remit to oversee the functioning of environmental law and to advise Welsh Ministers. But unlike the OEP and ESS the IEPAW does not have the powers to investigate breaches of environmental law. Dr Nerys Llewelyn Jones was appointed to the role.
The Assessor’s functions include a mechanism for members of the public to make submissions on the functioning of environmental law. The Assessor produces an annual report of work undertaken as well as publications on specified matters submitted for consideration. Matters considered by the Assessor from 2021 to 2023 include air and water quality, forestry and hedgerows, Sites of Special Scientific Interest (SSSIs), land contamination, waste, and access to environmental information.
Equivalent Legislation for Wales
The Welsh Government is expected to publish a White Paper setting out proposals for an environmental governance bill at the end of January 2024.
The bill will include:
EU Environmental principles
- The four EU environmental principles (rectification at source, polluter-pays, prevention and precaution). These principles should support an overarching objective, which sets out environmental ambitions in Wales, including the connections between environmental policy and other policy areas (integration);
- A duty on the Welsh Ministers to apply the principles in the development of policy and legislation.
The Aarhus Convention
The Aarhus Convention on Access to Information, Participation in Decision Making, and Access to Justice in Environmental Matters should be articulated in the bill.
An independent environmental governance body for Wales
A Commission for the environment, independent from the Welsh Government to oversee the implementation of environmental law in Wales. The Commission’s functions will be to receive and respond to complaints from citizens in Wales, to carry out inquiries where systemic issues have been identified through investigations and scrutiny. It will have powers to escalate matters where necessary to stop or prevent environmental damage.
Cross party support at the Senedd
The proposed environmental governance Bill for Wales has long been called for by the Senedd Climate Change Environment and Infrastructure Committee and opposition parties., indicating cross party support.
The publication of the White paper at the end of January will kick start the legislative process. We look forward to the Bill finally being out for feedback and urge for Welsh Government to ensure it truly is passed before 2026, or we may lose the opportunity altogether.
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