1. The State of Environmental Law in 2011-12 – Final Report Launch The Dickson Poon School of Law With the kind support of

2. EVENT PROGRAMME 17.45 UKELA/King’s/BRASS project team presentation: 'The State of Environmental Law in 2011-12’ With questions 19.00 Steven Gleave (Better Regulation, DEFRA) in response Further discussion 19.30 Drinks reception with Defralex display (Somerset Rooms: turn right out of Theatre, follow the staircase up one level and take a right at top of stairs) 21.00 Close

3. The State of UK Environmental Law 2011-2012 Begonia Filgueira begonia@eric- group.co.uk

4. The Report The State of Environmenta l Law Interim Report Members Consultation Industry Report

5. 2009 Frustration amongst UKELA members –Complaint – ineffective legislation –Consequences – cost, delay, piecemeal interpretation, rule of law Charitable aims of UKELA –Make the law work for a better environment –Make environmental law accessible

6. Effective meaning? Effective Environmental Law CoherentIntegratedTransparentScrutinised

7. Coherence Issues Frequent amendments and lack of consolidation “I think its really badly put together…lots of it is archaic, it’s in little pieces that don’t always match each other” (industry professional) Key concepts are too difficult to understand –Waste –Habitats

8. Integration Issues Overlapping regimes and obligations applying to the same set of facts causes: –Duplication of legislation –Confusion as to which regime applies –Contradictions –Multiple enforcement options and appeal mechanisms

9. Transparency Issues Accessible –If not coherent and/or not integrated ? Concerns –Unclear who regulator is (to industry) –Key requirements‘hidden away’in guidance documents issued by different regulators –Referential drafting UK Government Aarhus infraction

10. Scrutiny Issues Not one body in charge – aim unclear Parliamentary scrutiny more political than qualitative Consultation good tool – too much and not enough feed back Committee scrutiny – narrow and policy focused Post-legislative scrutiny – rarely occurs

11. Word on guidance Role of non statutory guidance “Democratic deficit”

12. Specific Recommendations Streamlining –Consolidating legislation more routinely –Simplifying overlapping legislation –Rationalising appeals mechanisms and enforcement powers Communication of information –Updated and accessible websites, with consolidated legislation, and all legislative information gathered for a single topic –Alert users to legislative changes

13. Specific Recommendations Further Government efforts to influence of EU developments to minimise coherence problems Guidance should be: –up-to-date, consistent and comprehensive –drafted in a way that is appropriate to its function and audience Consultations –Improved communication with stakeholders

14. Broader Recommendations We covered tip of iceberg More work for the future: –On understanding the systemic problems with the quality and effectiveness of UK environmental legislation – is the system fit for purpose? –Is wider institutional reform required, boosting scrutiny? –Is there a role for environmental principles in improving legislative quality?

15. Quality Legislation The principle is not about de-regulation Principle is about improving regulation in the 21st Century

16. Methodology, Institutional Collaboration and Environmental Principles: Findings and Lessons Dr Eloise Scotford King’s College London

17. Project Methodology Challenges: –Thinking about legislative problems in an area of law with porous, contested (limitless?) edges –Across a number of jurisdictions: UK and its administrations –Where multiple causes of legislative quality Challenge but also strength of project: working with variety of environmental law perspectives –Practitioners, government, industry, academics, students, judges, NGOs

18. Methodological Choices Research limits adopted –Confined subject-matter, somewhat arbitrary –Focus on legislation (including guidance), not enforcement or policy outcomes, institutional and administrative matters only as relevant Driven by purpose: to better understand problems of legislative quality in the UK –To put issue on agenda, identify typology of problems, their causes and avenues for reform Stages and variety of research methods –Datasets limited, range of methods developed

19. Methodological Findings Systemising issues of legislative quality told us about the nature of the problems, including how they are caused and how to find them –Coherence, integration (substantive, administrative), transparency –Importance of mapping Range of perspectives showed that: –Problems for some users of environmental law might not be for others (eg expert practitioner vs industry) –Solutions need to focus on users’ needs/knowledge Devolved administrations need particular and different attention

20. Institutional Collaboration Method of project in bringing together perspectives also reflects an accomplishment/experiment of institutional collaboration Lessons learned: different kinds of institutional expertise (variation on Fisher; Collins + Evans) –Interactional issues (different terminology, objectives, timeframes, resources) – need to find common ground, maximise resources –Contributing knowledge across institutional contexts – value of different viewpoints and cultures, rigorous research methodology to build coherent project, with communication challenges Importance for UKELA, as well as this project

21. Environmental Principles Eg sustainable development, precautionary principle, polluter pays principle, intergenerational equity, integration Solution to problems of legislative quality if inserted explicitly into legislative scheme? –Hard to know, will have legal effects, not looking like a total solution Obstacles/influences in UK legal system –Generality of principles: not determinative, open for interpretation (waste definition, NPPF) –UK legal/regulatory culture (cf EU/NSW law)

22. Role for Environmental Principles? Depends how you introduce them into UK legislation… –As legislative objects that act as interpretive tools for courts and those acting under legislation – an alternative is more bespoke objects clauses as an interpretive device to reduce coherence problems –As general duties on public decision-makers –Into policy documents, still legally influential Resulting improvement in legislative quality?

23. Future of Environmental Principles Report recommendation: further work to monitor, map, predict the legal effects of environmental principles –How they might influence ongoing UK legal developments, particularly in implementing and interpreting regulatory obligations –Differently across the DAs? - see WAG planned Sustainable Development Bill experience –FTT (Environment) jurisdiction?

24. Environmental Law Across the UK Bridget Marshall Scottish Environmental Protection Agency

25. Introduction Capturing environmental law across the UK key part of project Increased size of project Introduced additional methodology problems and significant analytical complexity But worth it!

26. Methodology Consultants used with relevant experience provided reports on key issues of legislative quality in each devolved administration Reports covered: –Political context –Key issues in legislative quality –Scale of activity going on in devolved administrations in 2011/12

27. Significant Developments 2011/12 History of devolved competence Legislative reform on the environment

28. History of Devolved Competence “Yes vote” Wales referendum- March 2011 SNP majority in Scottish Parliament and announcement to hold a referendum in 2014 about independence-May 2011 Discussion paper on “Environmental Governance” including options for an independent environment agency for Northern Ireland-September 2011.

29. Legislative Reform on the Environment Consultations in Wales on “Sustaining a Living Wales” and “Arrangements for Establishing and Managing a New Body for the Management of Wales’ Natural Resources”-February 2012 Consultation in Scotland on “Proposals for an Integrated Framework of Environmental Regulation”-May 2012

30. What Does this Mean for UK Environmental Law? No single unitary environmental law in the UK Devolution has resulted in a complex legislative picture across the UK Individual administrations improving own quality of legislation Issues for coherence, integration and transparency across the UK

31. Does it Matter? Cross border differences in law can cause difficulties for regulator and regulated Can put industry at an economic disadvantage/advantage Can be a burden on industry to understand environmental law in different administrations

32. Report Recommendation Further work should be done, both within and between UK Governments and by external organisations (including universities), to research, analyse and explain the emerging picture of fragmented environmental law across the UK administrations

33. Robert Lee and Radoslaw Stech ESRC Research Centre for Business Accountability, Sustainability and Society (BRASS), Cardiff University

34. Methodology  Sample 38 on-line respondents 13 interviews  Issues Timescale Sample size and contours Representation by SIC codes Reading mixed methods research

35. Access to Legal Information  Main Survey Findings: Most respondents work with UK environmental legislation and statutory guidance and many with EU law Non ‐ statutory newsletters and guidance are most frequently accessed sources of environmental information Respondents most often use statutory bodies' websites to access environmental legislation but such websites are said to be difficult in terms of access  Interview findings: When interviewed respondents rarely refer to accessing legislation or other sources of law directly Respondents heavily rely on free sources of environmental law from trade associations and statutory bodies Large companies educate smaller ones about environmental requirements through supply chain relationships

36. Coherence  Main Survey Findings: Respondents' perceptions of the UK environmental legislation is largely negative with vast majority wishing the legislation was simplified For the majority of respondents environmental legislation lacks clarity, is not well structured and consists of conflicting concepts Many respondents have problems in understanding key concepts in environmental legislation resolved to some extent by statutory guidance  Interview findings: Lack of clarity was the single most stated reason for concerns about the coherence of environmental legislation The ideal piece of legislation for respondents would have to be 'clear‘ Respondents have fairly negative perception of guidance complementing environmental legislation

37. Integration  Main Survey Findings: About one third of respondents had experienced working with more than one piece of legislation to find an answer to their question Environmental legislation should be more regularly consolidated There is too much 'red tape' in respondents' work arising out of environmental legislation  Interview findings: There is a need for consolidation stemming from earlier perceptions of the complexity and the lack of clarity in legislation Large companies can deal with the problems of integration; smaller ones will struggle Respondents were critical as to the lack of uniformity in the Environment Agency's handling similar issues in different regions of England and Wales

38. Transparency  Main Survey Findings: There is the accessibility problem for business users as many of them do not know where to find environmental legislation Over half do not know why and when environmental legislation is altered  Interview findings: In contrast with the survey results respondents did not report any major problems in accessing environmental legislation

39. Environmental Principles  Main Survey Findings: Sustainable development, the polluter pays principle, the preventive principle, the rectification of pollution at source principle and the precautionary principle broadly acknowledged by respondents Majority never heard of principle of integration and the principle of inter ‐ generational equity Respondents more reserved about the usefulness of environmental principles  Interview findings: Respondents’ focus on sustainable development principle but some see environmental legislation hindering sustainability Organisations who embraced sustainable development principle and include it in their culture are positive about its long ‐ term effects

40. Consultations  Main Survey Findings: Majority of respondents are aware of the parliamentary processes involved in drafting and reviewing environmental legislation Respondents who have taken part in government consultations rated their experience predominantly as ‘average’  Interview findings: SMEs are less likely to receive invitations to take part in government consultations There are too many consultations taking place and respondents often perceive that they are ineffective in terms of consultation responses actually being taken into account or making any real difference

41. The State of Environmental Law in 2011-2012 Reforming Environmental Regulation A Defra Perspective Steven Gleave Head of Better Regulation Team, Defra steven.gleave@defra.gsi.gov.uk

42. Defra’s Approach to Regulatory Reform Aim to achieve environmental and other public policy objectives in ways that encourage sustainable growth whilst minimising the burden of public and private sector interventions on those affected. An end-to-end approach across core Defra and delivery partners: development of policy, implementation on the ground, evaluation. Not just about legislation but guidance and data reporting too. Increasing focus on reducing the burden on SMEs/micro-businesses. Better evidence to underpin choice of policy options and whether/how to intervene. Improved and more transparent information for policy makers and the public. Developing a common approach across Whitehall Departments and Devolved Administrations. Improving EU regulation.

43. Defra Regulation Assessment 2011 435 sets of regulations or Acts, of which 227 derived from EU. Includes 258 sets of environmental regulations or Acts together with more than10,000 pages (?) of associated guidance. Total net cost to business of £3.6bn (£5.4bn costs and £1.8bn benefits). Wider economic, environmental and social benefits (where assessed) of £8.4bn. Weighted average benefit:cost ratio of 2.4:1. Average administrative burden of 8% (range of 1%-65%). EU accounts for 81% of costs to business. http://www.defra.gov.uk/publications/files/pb13623-costs-benefits-defra- regulatory-stock110816.pdf

44. Red Tape Challenge - Environment Theme A package of reforms to protect the environment in a more effective and efficient way that puts fewer burdens on businesses. Once implemented, estimated benefits to business of more than £1bn over 5 years. 132 regulations to be improved, mainly through simplification or consolidation; 70 to be kept unchanged; repeal of 53 that are obsolete. Main areas covered: waste, chemicals, air quality, biodiversity, landscape, noise/nuisance and inspections. Identifying areas of EU legislation for reform. A review of the overall framework of environmental regulation, guidance and data collection to assess the scope for further action to help businesses comply with their obligations. Proposals to be supplemented by RTC water and marine theme in hand.

45. Defra’s Smarter Environmental Regulation Project Six month project. A commitment from RTC environment theme. Addressing the ad hoc and piecemeal way that environmental regulation has developed since the 1970s. A complicated landscape of domestic and EU legislation, guidance and data reporting. Comprehensive assessment of the current situation by summer. Proposals to Ministers by autumn on a) options for reform of guidance and data reporting and b) identification of principles for longer term regulatory reform (including legislation). Drawing on external stakeholder Sounding Board (including UKELA).

46. Improving Enforcement and Compliance Providing strategic oversight and direction for Defra and delivery partners. Improving guidance and forms to make them simpler and clearer. Developing Enforcement and Compliance Plans. Developing a National Intelligence Model. Reviewing appeals processes. Contributing to Government’s regulatory reviews programme and powers of entry review.

47. Defra’s Environmental Appeals Project Richard Macrory’s report on environmental appeals. Accepted the strong arguments for making greater use of the environment jurisdiction of the FTT. Working assumption that environmental appeals to be routed to FTT but each case to be considered on its merits. Users of appeals services to be consulted. Guidance for Defra policy officials.

48. The State of Environmental Regulation in Five Years? A significantly simplified legislative and administrative landscape. Better information on costs and benefits leading to better quality public policies. More sophisticated regulator/court interventions, with focus on serious/persistent criminals. Improved compliance by business/Higher environmental standards achieved overall. Continuing domestic drive for regulatory reform. EU? International convergence?

49. EVENT PROGRAMME 17.15 Registration/tea and coffee 17.45 UKELA/King’s/BRASS project team presentation: 'The State of Environmental Law in 2011-12' 19.00 Steven Gleave (Better Regulation, DEFRA) in response 19.30 Drinks reception with Defralex display (Somerset Rooms: turn right out of Theatre, follow the staircase up one level and take a right at top of stairs) 21.00 Close