The Environment Act 2021

This Environment Act 2021has two main functions:

1. To give a legal framework for environmental governance in the UK.
2. To bring in measures for improvement of the environment in relation to waste, resource efficiency, air quality, water, nature and biodiversity, and conservation.

The vast majority of this Act does not make any immediate changes for organisations other than regulators. Changes to duties for businesses and other organisations are expected in subsequent legislation made under this Act. 

Legal framework

The first part of the Act puts duties on the Government in relation to environmental governance. This includes requiring the Government to:

• put in place measures to allow the Government to set and meet long-term targets related to the natural environment and people’s enjoyment of the environment;
• set at least one long-term target each related to priority areas of air, water, biodiversity, resource efficiency and waste by October 2022;
• set and meet an air quality target for fine particulate matter;
• set and meet a target related to the abundance of species;
• review environmental targets periodically to consider if meeting them would significantly improve the natural environment in England;
• put in place the processes for setting and amending long-term targets;
• have an Environmental Improvement Plan containing steps it intends to take to improve the natural environment. The plan must be for at least 15 years. ‘A Green Future: Our 25 Year Plan to Improve the Environment‘ published by the Government in 2018 can be treated as such a plan; and
• collect and publish data related to measuring progress for improving the natural environment and meeting targets.

The Department of Agriculture, Environment and Rural Affairs (DAERA) in Northern Ireland is required to make an Environmental Improvement Plan in line with the requirements in Schedule 2.

It also establishes a new body, the Office for Environmental Protection (OEP).

The Office for Environmental Protection (OEP)

The OEP’s function is to hold the Government to account on environmental legislation and its Environmental Improvement Plan. It was determined to be required following the UK leaving the EU which previously held the UK Government to account on environmental issues. The OEP’s principal objective is to contribute to environmental protection and improvement of the natural environment. The OEP must act objectively and impartially.

Full details regarding the OEP and its duties can be found in Chapter 2 and Schedule 1 of the Act. More can also be learnt about the OEP via its website.

The OEP only covers England currently.The OEP may exercise its functions in Northern Ireland, subject to the approval of the Northern Ireland Assembly. A decision is awaited regarding this. The OEP’s intended function in Northern Ireland is given in Schedule 3.

Where does the Act apply?

The Act applies across the UK; however, parts of it only apply in one or more jurisdiction. Reference has been made to this throughout the summary.

New environmental law

Any proposed environmental law that is introduced into the House of Parliament must be accompanied by a statement confirming that the Minister in charge of it believes the proposed law will not reduce the level of protection given by any existing environmental law. This does not apply to planning law, unless it is specifically environmental, e.g. environmental impact assessments (EIAs).

Reporting on international environmental protection

The Secretary of State is required to make a report every 2 years on the significant developments in international environmental protection legislation.

Waste and resource efficiency

Part 3 of the Act relates to waste and resource efficiency.

Producer responsibility

The relevant Ministers in England, Wales, Scotland or DAERA in Northern Ireland may make regulations about producer responsibility obligations. Such regulations could be made to prevent a product or material becoming waste, reduce the amount of a product or material that becomes waste, or sustain a minimum level of reuse, redistribution, recovery or recycling of products or materials. Further detail on this can be found in Schedule 4.

Regulations can also be made that require payments from those involved in the manufacturing, processing, distributing or supplying of specific products or materials to contribute to the disposal costs of those products or materials. Requirements about what these regulations must or may include is given in Schedule 5.

Manufacturers and producers may also be required through subsequent legislation to provide information about the resource efficiency of their products. Detail of what may be required is given in Schedule 6. Schedule 7 gives detail on what regulations may require in relation to durability, reparability and recyclability of products.

Deposit schemes

The relevant Ministers in England or Wales, or DAERA in Northern Ireland may make regulations about deposit schemes. These may require a person supplied with an item to pay a deposit which is refunded when that item is collected (e.g. a deposit paid on a drinks bottle that is refunded when the drink is consumed and the bottle returned). Schedule 8 gives detail on these schemes.

Single use items

The relevant Ministers in England or Wales, or DAERA in Northern Ireland may make regulations requiring sellers of goods or services to charge for single use items. The goods this will apply to and how it will operate will be specified in subsequent legislation. Schedule 9 gives detail on charges for single use items.

Separation of waste

Measures are introduced regarding the separation of waste in England. These are made through amendments to the Environmental Protection Act 1990. Details of the changes can be seen in the Updates section of the 1990 Act.

Waste tracking

The Act allows for future regulations to be made, to introduce an electronic waste tracking system. The system may require information about waste to be entered onto an electronic system by waste controllers (e.g. anyone who imports, produces, keeps, treats, manages or disposes of waste), or waste regulation authorities (e.g. the Environment Agency) about the processing, movement or transfer of waste. These changes are made through amendments to the Environmental Protection Act 1990, or for Northern Ireland, via The Waste and Contaminated Land (Northern Ireland) Order 1997.

Hazardous waste

The Environmental Protection Act 1990 is also amended to allow further regulations to be made to strengthen restrictions regarding hazardous waste for England and Wales. Equivalent regulations may be made for Northern Ireland under The Waste and Contaminated Land (Northern Ireland) Order 1997.

Import and export of waste

The Environmental Protection Act 1990 is also amended to allow further regulations to be made in order to prohibit or restrict waste imports and exports.

Charging schemes

Changes are made to the Environment Act 1995 to allow charging schemes to be made in relation to producer responsibility schemes. This would require the relevant agency to recover costs incurred by running a scheme from its participants. Similar changes are also made in relation to The End of Life Vehicles (Producer Responsibility) Regulations 2005 and The Waste Electrical and Electronic Equipment Regulations 2013.

Charging schemes may also be established to allow the Environment Agency and Natural Resources Wales to recover costs incurred in relation to preventing the unauthorised or harmful deposit, treatment or disposal of waste under The Environmental Permitting (England and Wales) Regulations 2016. This would allow fees to be charged to those in breach of a waste permit, or that operate a waste site without holding the relevant permit. Similar changes are made through amendments to The Waste and Contaminated Land (Northern Ireland) Order 1997 andThe Waste Management Licensing Regulations (Northern Ireland) 2003, for Northern Ireland.

Air quality

Changes are made to the Environment Act 1995 to require the Secretary of State to review the National Air Quality Strategy at least every 5 years. Reports must also be made annually to Parliament on the progress made to deliver air quality objectives in relation to England. Changes are also made in relation to Air Quality Management Areas (AQMAs).

Smoke control areas

Local authorities are given power under the Clean Air Act 1993 to give fines for emission of smoke in smoke control areas in England. A smoke control area is an area designated by a local authority in which only authorised fuels or certain furnaces or boilers can be used, with the aim of reducing air pollution. Emission of smoke from chimneys is also not allowed in these areas.

Vehicle recalls

The Secretary of State may make regulations to allow for products that do not meet relevant environmental standards to be recalled. The types of products this will apply to will be clarified in future legislation, but may include vehicles or non-road mobile machinery. Such recalls will be issued using a compulsory recall notice.

Water

The majority of changes described below are made by amending the Water Industry Act 1991.

Resource management

Water undertakers in England and Wales may be required to prepare and publish joint proposals to identify measures they can take jointly to improve water resource management and development. The content the proposals must cover can be specified by Ministers. The Secretary of State and the Welsh Ministers are also given power to make regulations for the preparation and publication of water resource management plans and drought plans.

Drainage and sewerage

Sewerage undertakers are required to prepare, publish and maintain a drainage and sewerage management plan under the Water Industry Act 1991.

Storm overflows

New duties are added to the Water Industry Act 1991 for the Secretary of State, Environment Agency and sewerage undertakers to reduce storm overflows and the harm they can cause. This includes making storm overflow discharge reduction plans and giving progress reports on the plan. Reports must also be given by sewerage undertakers to report when any discharges start and stop and to monitor the water quality of water affected by storm overflows and sewerage treatment works.

Water quality

Regulations may be made about the substances that should be taken into account when assessing the chemical status of surface or groundwater. Standards may also be specified for water quality.

Nature and biodiversity

A new general condition is added to the Town and Country Planning Act 1990 so that planning permission granted in England requires a biodiversity gain plan to be submitted and approved.

Nationally Significant Infrastructure Projects must improve the natural local environment through a new biodiversity net gain requirement. This is implemented through changes to the Planning Act 2008.

Biodiversity net gain register 

Regulations may be made to require the establishment of a public register of biodiversity net gain sites. These are sites where someone is required to carry out habitat enhancement work under a conservation covenant or planning obligation and are required to maintain the enhancement for at least 30 years.

Biodiversity credits

The Secretary of State is given powers to allow a scheme to be set up which would allow biodiversity credits to be sold. The scheme would apply in England only and a credit would be equivalent to a specified gain in biodiversity and could be used by developers of land towards the biodiversity net gain objectives they must meet. Proceeds from the credits would contribute to strategic ecological networks.

The Secretary of State must give annual reports on the operation of the biodiversity credit system.

Public authority duties

The Natural Environment and Rural Communities Act 2006 (‘2006 Act’) is amended to make it more explicit that public authorities in England must assess how they take action to conserve and enhance biodiversity. Specified public authorities are also required under the 2006 Act to produce biodiversity reports on how they have conserved and enhanced biodiversity.

Local nature recovery strategies

Local nature recovery strategies (LNRSs) are to be created for areas in England. The location of these LNRSs is to be determined, but together they must cover all of England. A local authority’s area must not be split between different LNRSs.

LNRSs must be made and published by the responsible authority; this may be the local authority, the Mayor of London, the combined authority mayor, a National Park Authority, the Broads Authority, or Natural England. The LNRS must include:

• a statement of biodiversity priorities for the strategy area; and
• a local habitat map for the area.

The Secretary of State is required to publish a national habitat map for England. The map must contain national conservation sites and other areas considered to be of particular importance for biodiversity.

Species conservation strategies

Natural England is allowed to make and publish a strategy to improve the conservation status of any specified species. Such strategies are known as a species conservation strategy and can be made for any part of England.

A species conservation strategy may:

• identify areas or features in the strategy area that are important to the conservation of the species;
• identify priorities for creation or enhancement of habitats;
• set out how Natural England proposes to improve the species’ conservation status;
• give opinions on how other public authorities giving approvals or consents could affect the species conservation status; and
• give opinions on appropriate measures to avoid, mitigate or compensate for any adverse impact on the species’ conservation status.

Local planning authorities or specified public authorities are required to cooperate with Natural England to prepare and implement these strategies.

Protected site strategies

Natural England may make and publish protected site strategies to improve the conservation and management of a protected site in England, and manage the impact of plans, projects or other actives on the conservation and management of that site.

A protected site is:

• a European site;
• a site of special scientific interest (SSSI); or
• a marine conservation zone.

A site can be checked to see whether it has any of these designations using Magic Map.

A protected site strategy may:

• include an assessment of the impact the plan, project or other activity may have on the conservation of the protected site;
• give Natural England’s opinion on appropriate measures to take to avoid, mitigate or compensate for any adverse impact on the conservation or management of the protected site; and
• identify any plan, project or other activity Natural England consider necessary for the purposes of conservation or management of the protected site.

Local planning authorities or specified public authorities are required to cooperate with Natural England to prepare and implement these strategies. Natural England is required to consult with these authorities where they are located in their area, or where they may be affected by the strategy.

Tree felling

Changes are made to the Highways Act 1980 that puts duties on highway authorities for steps they must take before felling a tree on a street or road.

Use of forest risk commodities

Forest risk commodities are agricultural commodities whose production is associated with wide-scale conversion of land from forest to agricultural use.The commodities this applies to will be specified in future regulations but may include soy, cattle, wood fibre, cocoa, coffee, rubber and palm oil.

Schedule 17 gives the requirements for businesses using forest risk commodities in their UK commercial activities. It aims to tackle illegal deforestation in supply chains. N.B. Secondary legislation is required to implement these requirements and those summarised below. 

Anyone using a forest risk commodity or a product derived from a forest risk commodity in UK commercial activities must have complied with any relevant local laws in relation to that commodity in the country or territory where the organism was grown, raised or cultivated. This does not apply if the commodity is waste and is being used to make renewable transport fuel for which a renewable transport fuel certificate has been issued under The Renewable Transport Fuel Obligations Order 2007.

Those using a forest risk commodity or product derived from that commodity in UK commercial activities must establish and implement a due diligence system to:

• identify and obtain information about that commodity;
• assess the risk that any relevant local laws were not complied with in relation to that commodity; and
• mitigate that risk.

Annual reports are required to be made on the action taken to establish and implement a due diligence system. The reports must be provided to the relevant authority no later than 6 months following the end of each reporting period.

Exemptions from these requirements may apply if the organisation using the commodity or product derived from the commodity:

• notifies the relevant enforcement authority giving a declaration that they are satisfied the amount of commodity they use in their UK operations will not exceed the prescribed threshold; and
• the amount the person uses remains under the threshold for the reporting period.

A consultation on implementing due diligence on forest risk commodities is currently running until 11th March 2022. 

Conservation covenants

A conservation covenant is an agreement between a landowner and a responsible body (e.g. a public body or local authority) to do or not do something on their land for a conservation purpose. For example, the agreement could be to maintain a woodland, or to not use certain pesticides on the vegetation.

The responsible body has the ability to enforce compliance with the landowner’s obligations in the conservation covenant.

Each conservation covenant must be for a specified duration. If this is not specified in the covenant, it will be for indefinite duration in the case of freehold estates, or the remainder of the term in the case of leasehold estates. Further details on the management of conservation covenants can be found in Part 7.