Member Article

After the highlights of the Environment Act 2021 and COP26 in 2021, what does this year hold for environmental law and policy? Here are our top five predictions.

1. The Office for Environmental Protection gets down to work

The Office for Environmental Protection (OEP) is a new independent body, established by the Environment Act 2021 (EA 2021), tasked with holding public bodies to account for the environment. It formally came into existence on 17 November 2021 and on 24 January 2022 received its powers including, importantly, its enforcement powers.

Although the OEP has only just been given its formal legal powers, it already has a workload to deal with. Since the start of January 2021, members of the public have been able to submit complaints about alleged failures by public authorities to comply with environmental law, pending the formal creation of the OEP, first to the Interim Environmental Governance Secretariat and subsequently to the Interim OEP.

Most of the complaints already submitted to the OEP are reported to be complaints about local authorities’ compliance with environmental impact assessment requirements, but complaints on other subject areas are also likely to come in. Given the current public interest in sewage discharges (see below), sewerage undertakers’ compliance with environmental laws and regulators’ enforcement of those laws are likely sources of complaints to the OEP.

We may also see the OEP starting to exercise its monitoring functions, looking at how effectively environmental laws are implemented. One obvious area for attention is waste management regulation although, as indicted below, we may see major changes in this area anyway.

2. Major changes to waste management legislation

The EA 2021 contains wide powers for the Secretary of State (in England) and devolved administrations to make regulations on a wide range of areas in relation to waste and resources. Many of these powers came into effect on 9 January 2022.

DEFRA carried out a number of consultations last year ahead of the EA 2021 receiving Royal Assent, on topics such as extended producer responsibility, consistency in household and business recycling in England, and the introduction of deposit return scheme for drinks containers. Already in 2022 DEFRA has issued consultations on mandatory digital waste tracking and reforms to the registration system for waste carriers, brokers and dealers.

We are likely to see regulations implementing the outcomes of the consultations carried out in 2021 in the course of this year.

3. Challenges to green claims

In September 2021, the Competition and Markets Authority (CMA) issued its guidance on environmental claims on goods and services and the related Green Claims Code checklist. At the time of their publication the CMA announced that it would start reviewing potentially misleading claims in January 2022. It has stuck to its word and already started a review of environmental claims in the UK fashion retail sector to determine whether or not businesses are compliant with consumer protection law. A number of fashion retailers may therefore find themselves facing requests for information from the CMA as part of its review.

The CMA has also announced that it will prioritise certain other sectors for review in the coming months. These could include travel and transport, and fast-moving consumer goods (food and beverages, beauty products and cleaning products).

4. More headline-making fines for sewerage undertakers

In September last year we reported on the record £90 million fine imposed on Southern Water by Canterbury Crown Court for a series of water pollution offences. Sewage discharges by water companies were the subject of heated debate in Parliament during the final stages of the passage of the EA 2021 and continued permit breaches will be unlikely to escape the attention of the public and regulators.

The EA 2021 contains a weak and difficult to enforce duty for sewerage undertakers to secure a progressive reduction in the adverse impacts of discharges from storm overflows (which has yet to be brought into force), but given the attention being given by the media and general public to water pollution offences by sewerage undertakers, we may well see some more large fines imposed on sewage undertakers this year.

5. COP27

The lack of a COP (Conference of the Parties to the UN Framework Convention on Climate Change) in 2020 made us forget that COPs are meant to be an annual event. Now that the dust has settled on COP26, held in Glasgow in November last year, attention now needs to turn to COP27, which is scheduled to take place in Sharm el-Sheikh in Egypt from 7 to 18 November 2022.

The agenda for COP27 is yet to be announced, but given the location and the host country, some commentators have suggested that developing countries vulnerable to climate change may take the opportunity to press the major emerging economies such as China, India and Russia to toughen their ambitions to reduce their carbon emissions.