In a previous blog, we highlighted amendments to the Levelling Up and Regeneration Bill that will be essential to drive nature’s recovery in the planning system. Today’s blog by Pooja Kishinani (Campaigner-England) delves deeper into amendments to the Environmental Outcomes Reports regime to ensure that the new environmental assessments system strengthens environmental standards in the UK.
Environmental assessments play a vital role in limiting nature and climate harms from planning decisions and directing development away from environmentally important sites. Part 6 of the Bill gives the Secretary of State the power to replace existing environmental assessment systems (Strategic Environmental Assessment and Environmental Impact Assessment) with a new regime, Environmental Outcomes Reports (EOR).
However, the new EOR regime lacks policy detail which will only be revealed later through secondary legislation, which is worrisome as it could potentially lead to a regression in environmental protections. To ensure that the new EOR regime strengthens environmental standards, we support the following amendments:
Currently, the Bill lacks any assurance that the EOR regime will include climate as a key consideration. Baroness Hayman of Ullock has tabled the welcome amendments 371, 372 and 378 to clause 138, which strengthens the protection of the climate as a key environmental outcome, replacing the ‘hope’ that the Bill will cover climate with legal certainty. These amendments ensure that the mitigation of climate impacts, the need to improve protected sites, and the compliance of secondary legislation with UN Sustainable Development Goals (SDGs), especially climate action, are key EOR considerations.
Clause 142 of the Bill gives the Secretary of State the power to change individual existing protections when making regulations, so long as the ‘‘overall level of environmental protection’’ will not be less than before. But this wording allows the Secretary of State to weaken existing individual protections, as long they consider this to be balanced out elsewhere to maintain an overall level. Giving the Secretary of State the power to make subjective judgements on the balance of environmental protections opens the door to regression.
Baroness Hayman has tabled amendment 377 to clause 142 which will remove the phrase ‘’overall level’’ and replace it with a stricter non-regression test based on objective criteria. This would require the Secretary of State to demonstrate that EOR regulations would not diminish any environmental protections at the time the Bill passes.
Clause 143 requires UK Government Ministers to consult with Ministers of devolved administrations (Scotland, Wales and Northern Ireland) if the EOR regulations fall within a devolved administration’s competence. Such a weak requirement could see EOR regulations imposed on devolved nations after merely consultation and without the consent of their administrations. This could increase the risk of environmental regression if the new EOR regulations impose weaker requirements than those put in place by the devolved Government.
Baroness Taylor has tabled amendments 379, 380 and 381 to clause 143 which would address these threats by requiring Ministers to secure the consent of devolved administrations before setting an EOR regulations within the competence of that administration, rather than merely consulting with them.
Habitats Regulations requirements are the strongest protections for nature in our planning system. They preclude nearly all development that could harm a protected site. The current drafting of clause 149 on the Bill would appear to make provision for requirements carried out under an EOR to satisfy Habitats Regulations requirements. But there is a risk that EOR requirements - the details of which will only be set by secondary legislation - could be weaker than Habitats Regulations, permitting more damage to protected sites. This concern was also raised by the Office for Environmental Protection during the Commons Committee Stage.
Lord Randall of Uxbridge, Baroness Jones of Whitchurch, Baroness Willis of Summertown and Baroness Bakewell of Hardington Mandeville have tabled amendment 384 which would address this problem by only allowing EOR requirements to satisfy Habitats Regulations requirements if they are functionally the same.
Currently, the Bill only requires regulations that will set out the details of the EOR regime to go through the ‘affirmative procedure’, which gives Parliamentarians the chance to accept or reject a regulation without full access to the details of how it would be brought forwards. However, this process lacks sufficient scrutiny for regulations which set a whole new system of environmental assessment for development.
Baroness Hayman has tabled Amendment 388 which would address this gap by requiring EOR regulations to be subject to increased parliamentary scrutiny. This would provide an additional 60-day period for parliamentarians to meaningfully shape the detail of the new system of environmental assessment, and to work with Ministers on content changes to ensure the regulations lift rather than lower environmental standards.
We thank all those Peers who tabled amendments to make this Bill work for nature, people and planet. We strongly hope that other Peers speak up too in support of protecting nature and ensuring that our concerns about the Government’s proposals for the new EOR regime are highlighted and addressed during the forthcoming Parliamentary debates.