- Guidance ,
IEMA's executive director of policy, Martin Baxter, asks whether the government's drive for "smarter" guidance will actually lead to better guidance
The government’s policy of “smarter guidance” is intended to make it simpler, easier and quicker for organisations to understand what they have to do to comply with environmental laws and regulations. According to the government, it will only produce guidance where it is uniquely placed to do so; this will generally exclude guidance on good practice and how to meet a regulatory requirement.
With more than 8,000 environment-related guidance documents, there’s clearly a lot to look at. But in streamlining that guidance, there is a risk that useful documents will be removed, particularly those that help steer users through grey areas that have emerged from case law. Moreover, withdrawing guidance that is cross-referenced by other policy documents will leave practitioners in limbo.
There’s already evidence of this problem in the new online national planning practice guidance (NPPG) – a distillation of guidance on topics such as climate change, environmental impact assessment (EIA), and renewable and low-carbon energy – and the cancellation of a significant number of government circulars and directions to local planning authorities.
Concerns raised by IEMA on the test version of the NPPG have not been addressed. These relate to guidance on local authorities’ assessment of cumulative effects in screening and scoping EIAs, and the list of indicative thresholds for projects that are likely to require EIAs under schedule 2 of the Town and Country Planning (EIA) Regulations 2011 – both of which raise the potential for legal challenge.
So, why might the streamlining of guidance on environmental laws and regulation be a concern? The new sentencing guideline for environment offences makes clear that fines for companies breaching environmental law should be “sufficiently substantial to have a real economic impact, which will bring home to management and shareholders the need to improve regulatory compliance” – ouch. The absence of good practice guidance might increase companies’ dependence on expert advice, or leave them unwittingly exposed.
In Elliott-Smith v Secretary of State for Business, Energy and Industrial Strategy, the claimant applied for judicial review of the legality of the defendants’ joint decision to create the UK Emissions Trading Scheme (UK ETS) as a substitute for UK participation in the EU Emissions Trading Scheme (EU ETS).
In R. (on the application of Hudson) v Windsor and Maidenhead RBC, the appellant appealed against a decision to uphold the local authority’s grant of planning permission for the construction of a holiday village at the Legoland Windsor Resort.