The Truss Agenda: what does the Government’s new direction mean for the environment?

At the centre of controversy on recent policy developments is the proposed Retained EU Law (Revocation and Reform) Bill. The core goal of the legislation is to end the influence of EU legislation in UK law unless it is otherwise retained. Specifically, “all retained EU law contained in domestic secondary legislation and retained direct EU legislation will expire on [31st December 2023], unless otherwise preserved.”

The implications of that proposal are more than wide-reaching. In environmental policy alone, there are hundreds of pieces of legislation which could be revoked by the Bill, with nearly 600 sitting under the Department for Environment, Food & Rural Affairs (DEFRA). If not otherwise replaced or explicitly retained in UK law, those rules and regulations would cease to apply at the end of next year.

Whilst the Government has not yet given full clarity on its plans, one of several possibilities is likely to be its chosen approach:

1. Carefully replace each piece of law with an equivalent UK-made piece of law, preserving all the functions of the existing environmental protections, which would require round-the-clock review of complex regulations and their wider effects, as well as an express legislative drive to pass replacements through Parliament;
2. Approve EU-made legislation on a case-by-case basis, with broad frameworks created to replace EU equivalents on each issue where environmental regulation is required, necessitating a significant investment of time and attention into multiple complex environmental issues, with the potential that some regulations slip through the cracks;
3. Regulate only on some issues, leading to substantial deregulation of other environmental issues, which could be regulated on in subsequent years, with serious environmental consequences in the interim; or
4. Take no (or limited) action, in which case hundreds of laws will be repealed with no effective replacements, leading to mass deregulation and widespread environmental degradation.

The Government has not yet tipped its hand on the specifics of how it intends to deal with environmental laws, and the final scenario is likely to look like a blend of different approaches presented here, depending on specific portfolios and the Government’s objectives. Questions remain about whether any of these options is preferable to the current status quo of environmental regulations, and if the time and effort needed to uproot environmental law will be worth it.

Meanwhile, a great vista of doubt has been painted over the regulatory landscape, leaving environmental professionals, businesses, and the general public without the certainty they need to plan ahead. The Prime Minister's challenge will be to make that uncertainty worth the wait in the long-term.

Where the Retained EU Law Bill poses the possibility of deregulation, the Government’s Growth Plan explicitly confirms it. The Growth Plan sets out proposals for new planning legislation, with the goal of significantly increasing the pace of developments. Part of the plan involves the streamlining of environmental assessments.

The specifics have still not fully materialised, but the Government has made clear that it intends to create 38 “investment zones” where planning regulations will be loosened, potentially with consequences for Habitats Regulations and similar environmental protections (or whatever equivalent rules are in place by the end of 2023). The outcome could be a serious deviation from historic protections for nature, and a move away from a systemic approach to the use of land in the UK.

Tried and tested environmental rules such as the Habitats Regulations typically intercede in planning only when there is a genuine cause for concern, so the commitment to faster developments could pose a serious challenge to efforts to protect nature, raising further questions about the role of rules such as Biodiversity Net Gain, nutrient neutrality, and other key environmental rules.

At the heart of the uncertainty remains a question about the future of EIA which has hung in motion for months now, since the proposed introduction of Environmental Outcomes Reports. Once the newly-announced Planning Bill passes through Parliament, a clearer picture will be available to EIA professionals about what role they will play in the new system, and whether or not their expertise will be properly considered in future developments, particularly in the new investment zones.

In the context of increasing domestic and international energy prices, largely due to Russia’s invasion of Ukraine, the Government has recently announced plans to support consumers. Amid measures to address consumer energy prices, the Government has also removed the ban on ‘fracking’ in the UK, which is likely to create significant social and environmental challenges.

Fracking – which concerns oil and gas extraction from shale – poses many of the same environmental risks as other forms of extraction. The substantial time lag between the drilling operations beginning and the start of energy production means that fracking is unlikely to have a any effect on current energy prices.

Once production has begun, fracking may not even have a positive effect on household energy prices, with limited production capacity in the UK and a high degree of price equivalence between the EU and UK gas markets, which suggests that the influence on consumer energy prices would be minimal. In that context, the potential for environmental harms and other threats, such as increased earthquakes, means that the decision to encourage new fracking comes with a number of challenges for the new Prime Minister.

The key challenge will be to carefully manage the Government's overall approach to energy, favouring a composition that is beneficial to consumers not only in the next few months but also for the long-term, avoiding the need to reinvest multiple times during the transition to a sustainable energy supply. 

One of the more ambiguous policy shifts in the last month has been the implication that the Government’s Environmental Land Management Schemes (ELMS) could be subject to review or cancellation. ELMS are set to serve a major role in the future of how farmers are supported for the way that they use their land.

Historically, under the EU’s Common Agricultural Policy, farmers were paid money for the area of land that they farmed, encouraging productivity-led approaches to food production, often at the expense of environmental benefits. Following the UK’s exit from the EU, one of the potential positives for the environment could have been the chance to reward environmental approaches to agriculture. ELMS was one step towards achieving that goal.

While a review has been announced, media reports and official statements have pushed back and forth on whether the Government aims to return to land area based payments for agriculture, or if the review is merely a sense-check on the current implementation, which has seen a number of challenges in achieving the desired uptake from farmers. 

The result is a great degree of uncertainty, further threatening the extent to which farmers are likely to take the risk of moving towards environmental land management practices. The Government’s challenge will be to find a solution which increases confidence for farmers while ensuring the adoption of environmentally-beneficial land use.

Another policy beacon has been lit by the Government’s freshly launched Review into plans to deliver ‘net zero’, which has come alongside a consultation into current delivery plans. 

The Review, which seeks to ensure that net zero policies are maximising economic growth, comes at a time that the Government already needs to review the extent of its net zero delivery plans, following a legal decision that the Net Zero Strategy provides insufficient detail to meet commitments set out in the UK’s Sixth Carbon Budget. If the Government takes the opportunity for a serious review of its approach to net zero, it could fill the gaps in its current approach to climate change while also ensuring positive social and economic outcomes for society. 

Despite the serendipitous timing, the Review may bring challenges for the environment as well as benefits. The heavy focus on economic growth represents a significant change in direction for the Government on climate change, where previously the UK has sought to take a leading role in raising ambitions to tackle climate change at COP26.

A shift in focus towards the economic benefits of the transition could be seen as a distraction, with the potential to threaten the scientific coherence of the Government’s plans. It may embed an approach which removes smaller contributions to climate mitigation in favour of short-term economic gains. The challenge for the Government will be to ensure that attempts to maximise economic inclusion do not come at the expense of the robustness of climate commitments.

Amid the policy proposals and legislative reviews, the Government cannot lose track of the key milestones for environmental governance which were already in motion before the change in Prime Minister. Chief among them are two crucial frameworks: the long-term environmental targets set under the Environment Act and the refresh of the Government’s Environmental Improvement Plan (EIP).

The final environmental targets framework is due to enter law through Parliament by the end of October 2022 at the latest. That follows from a two-year scoping process, including an in-depth consultation on the proposed targets. You can read the IES’s response to the consultation to find out more about the current proposals. 

The upheaval caused by the change in Government has left a gap where the final proposals ought to be, raising concerns about the limited timeframe to pass the final targets through Parliament, and questions about whether or not there will be sufficient scrutiny to meaningfully assess them.

Meanwhile, the Government’s updated EIP is due in January 2023. This vision-level document, which would be the successor to the 25 Year Environment Plan, will be crucial for setting out the next decade of environmental policy, as well as for coordinating the complex and myriad components of English environmental policy. While attention is drawn to other matters, such as the review of retained law, the specifics of that forward view are naturally subject to less attention and scrutiny.

In both instances, scrutiny serves the important function of sense-checking, improving, and approving proposals. For the IES, it is also necessary to ensure a science-led approach to policy. With limited scrutiny, serious challenges for environmental governance have the potential to arise, with repercussions across environmental policy for years to come.

Though many environmental and planning issues are devolved matters where the nations of the UK can set their own policy, the proposals still have significant implications for the whole of the UK, and not just England.

Reacting to the announcements, two Scottish Ministers raised their concerns in a letter to their equivalents in Westminster. The Scottish Government highlighted the challenges for aligning with the EU on environmental protections posed by the Retained EU Law Bill, as well as the potential for a regressive signalling effect to the COP15 negotiations in Montreal, which they believed could undermine efforts to negotiate a new framework for biodiversity.

Regulatory alignment may be an issue more broadly as well. Northern Ireland shares a land border with the EU, while England, Scotland, and Wales are all connected by land as well. Nature doesn’t consider the political boundaries we place on it, and the consequences of the approach to land in England and across the UK are likely to have effects more broadly than our own borders. 

To that end, the new proposals pose a challenge for attempts at environmental improvement across the UK, and where they apply more broadly than just England, they may also pose challenges for the UK’s global partners.