The Dickson Poon School of Law
The State of Environmental
Law in 2011-12 – Final Report
Launch
With the kind support of
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
The State of
UK
Environmental
Law 2011-2012
Begonia Filgueira
begonia@ericgroup.co.uk
The Report
Interim Report
The State of
Environmental
Law
Industry Report
Members
Consultation
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
Effective meaning?
Coherent
Effective
Environmental
Law
Integrated
Transparent
Scrutinised
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
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
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
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
Word on guidance
• Role of non statutory guidance
• “Democratic deficit”
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
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
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?
Quality Legislation
• The principle is not
about de-regulation
• Principle is about
improving
regulation in the
21st Century
Methodology, Institutional
Collaboration and
Environmental Principles:
Findings and Lessons
Dr Eloise Scotford
King’s College London
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
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
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
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
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)
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?
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?
Environmental Law
Across the UK
Bridget Marshall
Scottish Environmental
Protection Agency
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!
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
Significant Developments 2011/12
• History of devolved competence
• Legislative reform on the environment
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.
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
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
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
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
Robert Lee and Radoslaw Stech
ESRC Research Centre for Business Accountability, Sustainability
and Society (BRASS), Cardiff University
Methodology

Sample
 38 on-line respondents
 13 interviews

Issues
 Timescale
 Sample size and contours
 Representation by SIC codes
 Reading mixed methods research
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
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
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
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
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
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
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
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.
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-defraregulatory-stock110816.pdf
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.
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).
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.
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.
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?
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