Principles of environmental legislation

Understanding environmental legislation requires navigating a complex mix of EU and UK frameworks. Both systems prioritises four key principles: precaution, prevention, rectification at source, and “polluter pays.” By monitoring Environmental Action Programmes and the UK’s Environment Act 2021, businesses can anticipate forthcoming regulations and transition from reactive to proactive compliance.

Legislation can be a very complicated mix, with Acts, SIs and Bills, Treaties, Regulations and Directives. They have different meanings, a timeline in some cases, a hierarchy and usually an overall plan. Once you understand the terminology of the various types and stages, you can use that for a bit of advance warning about what’s coming, giving more time to prepare. Knowing process helps you tell when the legislation is approaching its final form.

This article is too short to give all the detail, so this is a summary of where to look to see the direction in which environmental legislation is heading and where to find out more detail.

Europe

Within the EU, EU law sits above national law, and the process of making it includes all member states, with rules about levels of agreement and of voting at each stage. It is therefore an inclusive process but slow. Member states may, and do, make their own laws, but they must not contradict EU laws. This article cannot cover all the various member countries’ different processes for environmental law, but knowing the EU laws allows you to understand the requirements that all member countries are expected to meet.

Treaties form the foundations, and there are a number covering environmental issues, including the starting point that the EU should hold overall responsibility for environmental policy, covering climate change, waste and pollution. These are all cross-boundary issues.

The EU environmental approach is based on four main principles:

• The ‘precautionary principle’ – avoiding taking actions that have potential to cause harm without enough scientific certainty to be able to manage the risk effectively
• Prevention of damage is prioritised over rectification – it’s much more effective (and usually more cost-effective as well)
• Where there has been damage, the polluter must remedy it at the point of origin
• ‘Polluter pays’ – the costs of preventing or remedying damage should be paid by the polluter. Producer responsibility laws come under this principle.

The EU sets out regular Environmental Action Programmes, each lasting several years – the current one is the 8^th EAP and lasts until the end of 2030 – and sets legislation to help deliver them. This may be new legislation or amendments to existing legislation, and it’s not always specifically environmental laws used, as there are many crossovers in topics. An example is the amendments to existing consumer law used to introduce legislation against greenwashing.

Reading the EAP gives a useful forward glance into forthcoming controls. The current one can be found here  (I’ve put the English links, but there are options to change to a different language.)

There are two main ways in which the legislation is implemented: Regulations and Directives. A Regulation is direct law, applicable to all members. A Directive states the aim to be achieved but allows the member countries to introduce or amend their own laws to achieve it, setting the date by which this should be done.

You can see the progress of EU legislation through its various stages here.

UK

In the UK, the top level of law is Acts of Parliament, and the next level down is Statutory Instruments (SIs) which is where a lot of the detail lies.

UK environmental law had a redo after Brexit, and the key new document is the Environment Act 2021. It is, in a way, a plan, similar to the EU EAPs in that it states the main aims and includes a framework for setting targets, as well as some targets. It covers air quality, biodiversity, water quality and waste reduction as its main areas. It also sets out the main principles, which are very similar to those of the EU: integration, meaning that environmental protection should be integrated into policies, and the precautionary, prevention, rectification at source and polluter pays principles. Again, familiarity with this helps to see what is ahead.

There are also a number of older laws, such as the Climate Change Act, and laws enacted through other channels, such as financial – where much reporting legislation can be found – and planning – which includes some biodiversity protection.

The different countries comprising the UK can have their own laws as well – Scotland and Wales each have some variations and Northern Ireland, although part of the UK, is still in the European single market so subject to a number of EU laws.

To find out more information regarding The Environment Act 2021 visit here and there are general environmental legislation guidance sites at www.gov.uk, or https://www.sepa.gov.uk for the Scottish Environment Protection Agency, https://naturalresources.wales for Wales and https://www.daera-ni.gov.uk for Northern Ireland.