The Environment Bill and The New Environment Agency

Part I of the Environment Bill sets out the framework for the new Environment Agency which is actually two new agencies: the Environment Agency, covering England and Wales (EA), and the separate Scottish Environment Protection Agency.

The EA will bring together the National Rivers Authority, Her Majesty's Inspectorate of Pollution and the Waste Regulation Authorities.

The Bill provides a legal framework for the EA, setting out the functions, powers and duties which it should fulfil. A draft management statement setting out the objectives and responsibilities of the EA and the nature of its relationship with the Government was published simultaneously.

Objectives

The draft management statement sets out clearly the objectives of the EA. The six main objectives are:

• to provide effective environmental protection, particularly in ways which take account of the impacts on all aspects of the environment;
• to impose the minimum burden on industry, for example by developing single points of contact through which industry and others can deal with the EA;
• to operate to a high professional standard based on the best available information;
• to organise activities in a way which reflects good environmental practice and provides good value for money for those who pay its charges, and for tax payers;
• to provide clear and readily available advice and information on its work; and
• to develop a close and responsive relationship with the public, local communities and regulated organisations.

Responsibilities

The main responsibilities of the EA are also set out in the management statement and include:

• regulation of industrial processes with the greatest pollution potential so as to ensure that the best available techniques not entailing excessive cost (BATNEEC) are utilised to prevent or minimise pollution to the environment as a whole;
• regulation of the disposal of radioactive waste and (except on nuclear licensed sites) the keeping and use of radioactive material and accumulation of radioactive wastes;
• regulation of the treating, keeping, movement and disposal of controlled waste so as to prevent pollution of the environment or harm to human health;
• preservation and improvement of the quality of rivers, estuaries and coastal waters with powers to regulate, prevent, mitigate or remedy water pollution;
• taking any necessary action to conserve, redistribute, augment and secure proper use of water resources; and
• the promotion of the conservation and enhancement of inland and coastal waters, and their use for recreational purposes.

Areas For Debate

It is clear that the Government regards the centralisation of regulatory functions in the EA as a contribution to its campaign to minimise the regulatory burden faced by industry.

The EA, described as a non-departmental body corporate, will be closely controlled by the Department of the Environment. Ministers will issue guidance on how its objectives should be fulfilled in order "to ensure that its activities reflect the Government's policies on environmental matters".

Clause 37 of the Bill places a duty on the EA to have regard to costs and benefits in exercising its powers. It could be argued that this merely enshrines in legislation the common practice of the regulators to date. Indeed, it may even be argued that such a principle is already enshrined in legislation, for example, HMIP must consider what BATNEEC when granting an authorisation under Part 1 of the Environmental Protection Act 1994.

However, although the obligation to consider costs and benefits will not, on the face of it, be an overriding duty, there is considerable concern about its likely impact on the EA's ability to protect the environment.
The EA's powers and duties, include:

• exercising its pollution control functions "for the purpose of preventing or minimising, or remedying or mitigating the effects of pollution of the environment";
• promoting the conservation and enhancement of the natural beauty and amenity of inland and coastal waters and aquatic flora and fauna;
• complying with ministerial guidance on sustainable development, and air and water quality targets.

The NRA has been seeking an assurance that the cost benefit analysis will only be applicable to strategy and policy and no to the day -to-day operations of inspectors.
There is some concern from the present regulators that the EA could become too large and that it will be 1997 or beyond before the Agency is in smooth operation. In contrast there has been some criticism that, not being responsible for all environmental matters, it will not be able to take an integrated approach to pollution regulation and prevention.

Finally, concern has been expressed that the EA will be underfunded. There are already some indications that the present staffing and resources of the three agencies concerned, namely HMIP, the NRA and the WRAs, representing 9,000 staff, will be substantially reduced. One of the strongest criticisms comes from the local authorities who say that the draft management statement clearly shows that the highest priority is to be de-regulation and savings in costs rather than effective regulation and protection of the environment.

Other Provisions Of The Environment Bill

Other provisions contained in the Bill deal with:

• Contaminated land - see the special report enclosed;
• Abandoned mines - abolition of the defence currently available to those who permit water from abandoned mines to enter controlled waters taking effect at the end of 1999 for mines abandoned after that date;
• National Parks - their functions and management;
• Preparation of a national waste strategy;
• Power to make new regulations on producer responsibility for waste;
• Protection of hedgerows;
• Changes relating to sampling evidence - section 93 abolishes the tripartite sampling procedure, introduces a presumption that automatic monitoring devices record accurately and specifies that sampling information obtained by a licence holder to comply with a condition is admissible against the licensee as well as others.

Anthony Hobley, GRSC, Solicitor, Environment Department.
The above is an extract taken from issue 10 of Environment Law Matters January 1995, published on behalf of Nabarro Nathanson.
Detailed specialist advice should be obtained before taking or refraining from any action as a result of the comments made in this article which are only intended as a brief introduction to the particular subject. Nabarro Nathanson is regulated in the conduct of investment business by the Law Society.
For additional information contact Kevin Wheeler, Nabarro Nathanson, tel 071 491 6982.