It’s not often in life that we get a completely fresh start. Instead, we normally have to make do and muddle, trying to work in the margins of whatever we’ve already got.
That’s especially true for the big things: people decorate more than they move house, and restructure organisations rather than close them down. The same can be said for environmental law, where technical updates happen much more often than new constitutional frameworks. Brexit, whatever you think of it, has created a chance to build environmental law differently. We should embrace that.
The Environment Bill will be a key part of the UK’s post-EU legal landscape. It will restructure the environmental law we are inheriting from decades of EU membership. It will set the tone and the trajectory for a new ambition to protect and enhance our natural world.
We’ve seen part of what this new bill will do – and the public, civil society and legal experts have been working to feed back on how those aspects need improving. Strengthening the bill to both firmly enshrine the environmental principles and establish an environmental watchdog that is actually world-leading is crucial. But there is much more this legal framework could do.
Despite the fact that the environment is, by definition, everywhere, it is too often a secondary consideration in the everyday decisions of public bodies and businesses. The bill provides a vehicle to rectify this – integrating environmental matters into the decisions we make, and the priorities underpinning them. Our relationships with the environment must be made more visible, meaningful and urgent to those with power.
Improving environmental conditions will require new binding objectives and the co-operation of government. Ultimate responsibility to actually reach these objectives should lie with the minister, but the other arms and legs of government must not be allowed to act in ways that are incompatible with their achievement.
Compliance is key
New binding and ambitious goals should be established – for instance, new laws requiring compliance with World Health Organization standards for air quality. We also need new mechanisms and processes that mean target-setting is done in line with ecological realities, future generations’ interests, planetary boundaries, global best practices and best available science.
Our new regulatory framework will also require new duties on private actors to reduce their impact. Requirements to identify how business activities affect the environment, and the steps needed to prevent, assess and mitigate these, could trigger a shift in thinking about where responsibility sits. Examples from health and safety law, or existing and emerging ‘duty of vigilance’ laws in France and Switzerland, set the bar.
The bill must empower people to fulfil their right to a healthy environment, to enjoy nature in its full wonder, and and re-establish an intrinsic connection to it. The new measures above would go some way towards this – we must construct a framework that helps to ensure our environment is clean, healthy, diverse and beautiful, while also providing people full access to justice and remedies for when the law is broken.
The Environment Bill must be forward-looking, inspiring, and paradigm-shifting. Those writing it must hold 2072, not 1972, in their imagination.
Tom West is UK environment lead at the environmental law charity ClientEarth.
This article is adapted from a piece that appeared in the May 2019 issue of EHN.