The withdrawal of the United Kingdom (UK) from the European Union (EU) has proved to be a long, complex, uncertain, and still unfinished process. One definite consequence, however, has been a transformation in the structures for environmental governance across the UK, with the creation of new “environmental watchdogs” to monitor the implementation and effectiveness of environmental law. Further changes in relation to the legal recognition of environmental principles and the introduction of statutory plans and targets have also followed, but this article limits itself to the new monitoring arrangements.
Legal experts and political commentators identified that leaving the EU would create a significant “governance gap” with the loss of the powers of the European Commission to monitor the UK’s compliance with environmental laws and targets. The EU’s process, often initiated by complaints from individuals alleging infringement, can result in a case before the Court of Justice of the European Union, which has the power to impose substantial fines on Member States for not fulfilling their obligations. Moreover, in many cases EU law creates rights that individuals can assert in the domestic courts within Member States, ensuring that the authorities deliver on the commitments embodied in EU law.
Since UK environmental matters are a devolved responsibility (analogous to delegated environmental responsibilities in the United States), different solutions have evolved in the different parts of the UK to preserve the tools to hold government accountable under environmental laws.
For matters within England and those dealt with at a UK level, the UK Parliament created a new body to fulfil this task, the Office for Environmental Protection (OEP). Created by the Environment Act 2021, this body’s role is to monitor progress under the new environmental improvement plan and targets, advise government, and review failures by public authorities to comply with environmental law. Either on its own initiative or in response to a complaint, the OEP can investigate noncompliance and, if satisfied that there is a serious failure, issue a decision notice stating what the authority must do to remedy the situation. The authority must respond and ultimately the OEP can refer the case to the courts, but only for a form of judicial review. Remedies are limited, and no punishment is available.
In Scotland, the equivalent body is Environmental Standards Scotland (ESS). It has a narrower area of responsibility, but more powers and, unlike the OEP, there is some parliamentary oversight over its membership and responses to its reports. ESS monitors public authorities’ compliance with environmental law, the effectiveness of the law, and how it is implemented and applied, including the implementation of international obligations. On the basis of complaints or on its own initiative, ESS can investigate matters and issue an improvement report in the event of noncompliance or failure to make environmental law effective. The Scottish Ministers must produce an improvement plan in response, to be approved by the Scottish Parliament. Although individual decisions must still be dealt with through the existing appeal systems, ESS can also issue compliance notices where authorities are failing to comply with the law in a more systemic way. There is a right of appeal to the courts against such notices, but a failure to comply can lead to punishment as a contempt of court. ESS can thus address failures in compliance or effectiveness, with the potential for severe penalties for an authority that does not rectify noncompliance.
