LLM ENVIRONMENTAL REGULATION and GOVERNANCE 2010/11

1. LLM ENVIRONMENTAL REGULATION and GOVERNANCE 2010/11 Seminar I Legal development and institutional structures Richard Macrory

2. UK Environmental Law Strands of Development • Pollution control • Nature conservation • Land Use Planning • Public engagement • Internationalization • Environmental Integration

3. Pollution control • 1863 first regulation by licencing of specific industrial works. • Extended 1875 to other works and “best practicable means’ concept introduced • Licencing system with specialized inspectorate constant core concept in pollution law

4. Pollution control • 1875 Public Health Act (focus on human protection, and preventative infrastructure) • 1956 Clean Air legislation (domestic smoke) • 1974 Control of Pollution Act - consolidates licencing systems for waste disposal and water discharges but separate legal regimes - public access rights

6. Nature Conservation • First national NGOs - Commons Preservation Soc (1865) and National Footpaths Preservation Soc (1884) • Largely based on rights to access and recreation • Hunting laws

7. Nature conservation • National Parks and Access to Countryside Act 1949 (note UK approach on national parks contrasts with many other countries) • 1949 Acts provides for establishment of SSSIs • 1981 Wildlife and Countryside Act - ‘voluntary’ system for protecting SSSIs from agricultural operations • 2000 Countryside and Rights of Way Act extends right to roam and strengthens protection of SSSIs

8. Land Use Planning • Controls of new land development could be introduced in selected areas from 1909 • 1947 first comprehensive land use planning legislation - new developments require permission and set against land use plans • Land use planning not exclusively about environmental protection but clearly preventative tool. Formal environmental assessment not introduced until 1988 • Land use planning controls largely in hands of local authorities. Relationship between specialized environmental regulatory controls still problematic

9. Public engagement • Specialized pollution controls did not provided for public participation until mid 1970s. Registers of consents not open to the public • Land Use Planning system the major exception. Environmental groups in 1970s/1980s use system to open up debates • 1970/80s saw first sustained challenged to expert regulators but little litigation

10. Internationalization • 1973 UK joined European Community. EC environmental policies began to be developed • EC often challenged UK traditional practice - more explicit legal standards, greater prevention etc. • 1972 first major UN Conference on Environment Stockholm - UK caught in international acid rain controversy - dilute and disperse policies challenged

11. Environmental integration • RCEP 1975 Report on Air Pollution identified weaknesses in distinct legal pollution control regimes - advocated integrated system BPEO • Environment Protection Act 1990 introduces IPC system for selected industries. 1995 Act creates Environment Agency • RCEP 2002 Report on Environmental Planning identifies weaknesses in linking environment and land use planning systems • Integration implies deeper linkages in government policy but governmental structures and change fail to reflect this

12. Formation of Key UK Environmental NGOs • 1865 Commons Preservation Society • 1884 National Footpaths Preservation Soc • 1898 Coal Smoke Abatement Society (becomes NSCA and in 2007 Environment Protection UK) • 1899 Garden City Association (becomes Town and Country Planning Association 1941) • 1926 Council for Preservation of Rural England (becomes Council to Protect Rural England 1969) • Friends of the Earth Ltd 1971 • Greenpeace UK 1977

13. ENVIRONMENT DEPARTMENTS • What factors should drive the design of government structures for dealing with environment?

14. Government Structures - Environment Department • Department of Environment 1970-1997 • Transport separated 1976 • Department of Environment, Transport and Regional Affairs 1997-2001 • Department of Environment, Food and Rural Affairs 2001 -

15. Current Key Government Departments England and Wales • Environment, Food and Rural Affairs (agricultural, food, marine and fisheries, pollution, nature conservation) • Energy and Climate Change • Transport (roads, air, railways) Business Innovation and Skills (business regulation, consumerism) • Communities and Local Government (local government, land use planning, housing including building regulation) • Cabinet Office • Treasury

16. NORTHERN IRELAND GOVERNANCE

17. Non-Departmental Public Bodies • Designed to deliver policy free from day to day political interference • Legally separate from Government Departments - employees not civil servants • Statute establishes functions and roles • Formally consists of Members appointed by Secretary of State • Resourced by Government though increasing proportion of income from licence fees

18. Environment Agency • Established under Environment Act 1995 • 13000 employees plus board of members • 8 Regions and 22 Area Offices • Flood management, waste regulation, water management, integrated pollution and prevention control from core industries, emissions trading angling, radioactive waste

19. ENVIRONMENT AGENCY FUNDING 2009/2010 • Flood and coastal protection £715m grant in aid • Environmental protection, fisheries £119 grant in aid • Environmental protection, fisheries etc £381m charges • Misc sources £3.5 m

20. AGENCY as REGULATOR • Licences, supervises, and investigates many areas of environmental regulation • Enforces and carries out own prosecutions (contrast with Scotland, Northern Ireland and many other countries in Europe)

21. NATURAL ENGLAND • Combines English Nature, Countryside Agency and Rural Development Service - from Oct 2006 • Nature protection, biodiversity, recreational development, rural strategy • 2006/7 £225m grant in aid - expenditure £224m • 2500 staff

22. How Independent is an NDPB? • Appointment of chair, chief executive and board by Government • Statute generally gives power to S of S to direct • Grant in aid may be critical to activities • But statute or statutory guidance may recognize role as independent policy adviser • Board meetings now open as matter of practice • Generally operate a ‘no surprises’ policy

23. Parliamentary Select Committees as Policy Influence • Commons Select Committees shadow government departments and their associated NDPBs • Aim to be non-party political • Select Committees choose subject areas for inquiries (5-6 a year) • Reports non-binding but Government must respond

24. Select Committee on Environment Food and Rural Affairs • Some recent inquiries • Waste Strategy for England 2007 • Dairy Farmers of Britain • National Forest • Appointment of Chair Natural England

25. House of Lords Select Committees • Do not shadow government departments but more cross cutting • Select Committee on Science and Technology • Select Committee on European Union • Select Committee on Regulators?

26. H of L Select Committee on EU Sub Committee D Current and recent inquiries • The EU's Renewable Energy Target and the Revision of The Emissions Trading System: Follow-up Report • Review of the Less Favoured Area Scheme • Adapting to Climate Change: EU Agriculture and Forestry • Directive on the Protection of Animals used for Scientific Purposes

27. Policy Influence - Royal Commission on Environmental Pollution • Create 1970 - Standing Royal Commission • Commission of Experts rather than Expert Committee • Broad terms of reference • Longer term reports (every 18 months) - big issues from scientific, policy legal, and admin perspective • Not binding but highly influential • Around 12 members part-time plus secretariat of 11 £1.5m a year

28. Role of RCEP “We do not have the competence or the resources to act as environmental ombudsman, dealing with appeals against local or central government decisions about specific cases of alleged damage to the environment where there are already channels through which such appeals may be made; what we are able to do is to give advice on the general principles which should guide Parliament and public opinion.” Extract First Report of RCEP

29. RCEP inquiries Recent inquiries (from 2007) Urban Environment Crop spaying and bystander health (2005) (special study) Novel materials (nano-technology) Adaptation to Climate Change Light Pollution (special study) Current: Demography and the Environment

30. RCEP to be abolished in 2011 - • Resolving disputes between government and groups (eg lead in petrol) • Knowledge broker between research and policy makers (eg Soil) • Policy entrepreneur (GMOs) • Make respectable the radical (eg Transport) • Enlightenment function (change framework of debate) (eg Energy)

31. SUSTAINABLE DEVELOPMENT COMMISSION • Founded in 2000 - advisory and advocacy role • Reports to PM as independent watchdog on sustainable development • 19 commissioners plus 46 staff - mixture of expert and stakeholder • 10 policy areas: climate change, consumption, economics, education, energy, engagement, health, housing, regional & local government and transport.