Will the new Office of Environmental Protection be able to enforce environmental law?

Will ‘environmental review’ be a toothless remedy?

Read PLP’s House of Lords Report Stage Briefing

Read PLP’s response to the DEFRA consultation to establish ‘environmental review’

The Environment Bill, currently in Report Stage in the House of Lords, establishes a new Office for Environmental Protection (OEP) which will be responsible for oversight and enforcement of environmental law following the UK’s departure from the European Union.

The Government’s continued commitment to ensuring environmental protection is welcome. There are, however, concerns as to the adequacy of the enforcement mechanisms involved, particularly in respect to environmental review, and the resulting implications for the rule of law.

PLP’s briefing focuses on the following issues:

  • The environmental review process enables the OEP to bring a public body before the High Court if a “serious” breach of environmental law has occurred. While similar to, but separate, from traditional judicial review, if the court conducting environmental review finds a breach of environmental law, it must issue a so-called “statement of non-compliance”. The public body must publish a response to any such statement but no further substantive action is required. This is a toothless remedy.
  • Prohibitive remedies: the bill prohibits judges from issuing stronger remedies such as quashing orders (the norm in judicial review), where doing so would “be likely to cause substantial hardship to, or substantially prejudice the rights of, any person other than the authority” or would otherwise be “detrimental to good administration”. This approach stands in stark contrast to the discretion available to judges in judicial review and no adequate justification for this reversal of the normal presumption in favour of relief has been provided.
  • The restriction on the OEP’s ability to use judicial review seriously undermines its ability to meet its principal objective of contributing to environmental protection through enforcement.

For these reasons, we support Amendments 27 and 28 per the marshalled list due to be heard on Wednesday 8 September and encourage Peers to carry these amendments as the Bill returns to the House of Commons.  

Civil Procedure Rules Committee Consultation

PLP has also submitted a response to the Department of Environment, Food and Rural Affairs (DEFRA) consultation on amending the Civil Procedure Rules to establish environmental review.

Amendments to the Civil Procedure Rules (CPR) will be required to establish environmental review in the High Court. In PLP’s consultation response, we consider the role of interveners as a positive utility in upholding an environmental review procedure that seeks to promote transparency, accountability and good governance. We say that the proposals unnecessarily burden interveners with new requirements for submitting evidence and believe this will be detrimental to the quality, timing and positive impact that interventions can make.

If you would like to get in touch with PLP about the Environment Bill, please contact Anna Sereni