Our Head of Climate, Environment and Sustainability, Stephen Sykes, recently participated in a Westminster Forum event on environmental governance in Wales, contributing to a session which was chaired by Dr Nerys Llewelyn Jones, the Interim Environmental Protection Assessor for Wales.
By asking too much of the proposed new, permanent, independent, environmental governance body for Wales, is there a risk it will do too little?
For many years, Wales has been leading the way amongst the four UK nations with forward-thinking environmental policies. We only have to think about policies that enabled supermarkets to charge 5p for new plastic bags which dramatically reduced the amount of plastic going to landfill and the introduction of the world’s first Future Generations Commissioner to embed long-term thinking across governmental policies in support of sustainability.
However, when faced with the conundrum of setting up a new, independent environmental governance body to oversee the environmental performance of bodies such as NRW and local authorities, Wales has been uncharacteristically slow off the mark. England, Northern Ireland and Scotland have all introduced environmental governance bodies. Wales appointed an Interim Environmental Protection Assessor for Wales three years ago with limited responsibilities and resources. Welsh Government has now promised a Bill during the current legislative session to introduce a permanent, new independent environmental governance body, but there are concerns that it might not be up and running until 2026. There is certainly a case for setting up the new body at the same time as the implementing legislation passed, as happened with the Office of Environmental Protection. There is no time to waste.
We should bear in mind that the purpose of the new environmental governance bodies across the UK really should be to plug a governance gap which was created by Brexit. Prior to the UK’s departure from the EU, Member States were kept in line by the risk of court action and indeed significant fines from the European Court of Justice for breaching environmental laws. The European Commission could also take enforcement action against Member States. After Brexit, this environmental governance mechanism was lost. Hence, the principal purpose of the new governance bodies – Environmental Standards Scotland, the OEP and the new Welsh body when it comes – ought to be no more and no less than replicating these lost functions.
However, following recommendations in a recent White Paper, the new governance body for Wales is set to have a much wider remit with a broad range of responsibilities, including enforcement and investigation, but also: monitoring and reporting, providing advice, dealing with complaints and making representations and partnering.
In addition, instead of focusing on overseeing the main bodies with environmental responsibilities – e.g. Welsh Government, NRW, local authorities, Welsh Water etc – it will be the environmental watchdog for the entire public sector across Wales. That is a daunting and arguably unnecessarily wide responsibility.
It is not yet clear what the new body’s budget will be or how much or what type of resources it will have to do its job, but the White Paper suggests maybe 6-8 commissioners. Given the breadth of the proposed new body’s responsibilities and that these may extend to environmental oversight of every public body in Wales, there is a real risk that the new commission will be overextended. To mitigate this risk it might wish to set up a College of Experts as its English counterpart has recently done, with scientific and other experts available to assist with its work.
Even so, the new governance body will never have the bandwidth to tackle every environmental challenge or shortcoming with environmental laws in Wales. It cannot do everything so, as an independent body, it will need to set its own priorities. Against the backdrop of the climate and biodiversity emergencies, it makes sense to proactively target these areas.
This may sound counterintuitive coming from a lawyer, but there are aspects of environmental law which are unnecessarily complex. Simpler laws are easier for industry and the public to understand and easier for regulators to enforce. It is to be hoped that the new body will take the opportunity to review thorny areas of environmental law.
Emerging technologies, such as hydrogen production, which are crucial for helping Wales achieve Net Zero as quickly as possible, urgently require a clearer regulatory framework to operate effectively and attract investment.
Evidently, the new body’s 6-8 environmental governance commissioners are going to be very busy, if not altogether too busy.
How can we help?
For more information or advice on the impact this may have, get in touch with our Environment team.
