Keywords: environmental legislation, reducing legislative complexity, legislative reform
In 2010-2012, the UK Environmental Law Association (UKELA) embarked on an ambitious project to assess the state of environmental legislation in the United Kingdom in light of its increasing complexity1 It is not just UKELA that is concerned that the complexity of environmental legislation is getting to the point of undermining its ability to deal with environmental problems. A Supreme Court judge and pre-eminent environmental law jurist agrees, having noted 'the contrast between the relative simplicity of the basic objectives [of environmental law], and the complexity of the machinery by which we try to give them effect'.2 Others also agree - from academics who see that the pace and scale of legal change makes environmental law incredibly challenging to understand let alone critique,3 to judges concerned that the rule of law is being undermined in an age of 'legislative hyperactivity',4 to industrial operators who find that lack of clarity in legislation is difficult to comply with, which leads to wasted time and financial cost.5 In fact, the case for considering closely the current state of UK environmental legislation and how to change it for the better seems overwhelming.
The government also now agrees. Beyond its ongoing cross-departmental 'better regulation' agenda,6 the Cabinet Office and Defra have recently developed a package of reforms for environmental legislation in pursuing the government's 'Red Tape Challenge', which aims to reduce regulatory burdens on business at the same time as improving the quality of legislation.7 This has now been complemented by another governmental programme - the Smarter Environmental Regulation Review (SERR) - which aims to simplify and facilitate access to environmental data, guidance and legislation.8
So legislative change seems to be needed and change is also afoot. In light of that, this note first examines the current picture of environmental legislation and considers why it is so complicated. It then considers the various ways in which it can be improved, including through the next phase of the governments reform of environmental legislation.
WHAT IS ENVIRONMENTAL LEGISLATION?
Part of the reason that environmental legislation is such a minefield is that it includes a wide range of regulatory areas. If environmental legislation is conceived of as the body of primary and secondary legislation that applies to environmental problems, then this, at least, includes laws that apply to waste, water and air quality, climate change, energy use and supply, nature conservation and biodiversity, genetically modified organisms and the use of chemicals. It also arguably extends to laws that relate to planning and development9 - planning laws are not only fundamentally informed by environmental requirements and duties,10 but also by decisions that reconcile conflicting views over land use and provide the basic framework for how communities and individuals interact with their local environment.
Furthermore, even across each of these different areas, it is not possible to say that there is a single body of 'UK environmental law'.11 One result of UK devolution is that environmental policy and legislation are increasingly matters for each of the UK's devolved administrations.12 This is leading to accelerating divergence in environmental legislation between England, Wales and Scotland in particular, with Scotland and Wales now embarking on quite radical new approaches.