All bark and no bite? Interim Office for Environmental Protection established

“The Environment Bill will establish the world-class Office for Environmental Protection. Protecting and improving our environment is an important priority and that is why we are taking immediate action to ensure that the body can start its vital work at the earliest possible opportunity.”

As the Government announces the launch of the new environmental watchdog for England on an interim basis ahead of its formal establishment[2], we briefly consider its roles and responsibilities and how effective it should be at policing environmental progress.

What is the Interim OEP?

The Interim Office for Environmental Protection (OEP) came in to existence in July 2021 within Defra and will provide independent oversight of the Government’s environmental progress on a non-statutory basis, in advance of the full OEP being legally established.

Its key functions will be to:

• develop the OEP’s strategy including its enforcement policy;
• produce and publish an independent assessment of progress in relation to the implementation of the Government’s 25 Year Environment Plan;
• receive complaints about public authorities’ compliance with environmental law, entering into dialogue with specific authorities about complaints against them (while not taking any formal enforcement action pending the necessary legislative provisions taking effect);
• take decisions on operational matters such as staff recruitment, accommodation and facilities;
• determine approaches for how the OEP will form and operate, establishing its character, ways of working and voice.

The first non-executive members of the new Office for Environmental Protection were announced in June.

A limited role?

For all the rhetoric regarding its functions, it seems that the Interim OEP will have a limited role. Whilst it will receive and validate complaints about public authorities, it will not make any final decisions about them. The complaints will still need to be considered by the OEP once it is established as an independent body. Interestingly, the interim OEP acknowledges there is the potential for a conflict of interest given that it is not yet independent of Government.

The announcement of the OEP has not been without controversy.  It has been previously reported that the OEP will be almost powerless to impose penalties on public authorities that commit environmental damage and will lack independence from ministerial interference. The Environment Secretary will also be able to give the OEP guidance on its enforcement work, which the watchdog must “have regard” for. Whether these criticisms are justified will only become apparent once the OEP has had the opportunity to test the waters with its new powers.

What is the OEP?

Once formally established, the OEP will be a new public body, created by the Environment Bill, with the principal objective of contributing to environmental protection and improving the natural environment. It replaces the European Commission as the domestic enforcer of environmental regulation.

It will support Parliament in holding the Government to account on its environmental commitments and will help improve environmental governance through independent oversight and advice on the law and other matters relating to the natural environment.

The OEP will provide scrutiny and advice on the implementation of environmental law. It will also monitor and report on progress against Environmental Improvement Plans and targets.

Importantly, the OEP will be able to receive and investigate complaints on alleged serious breaches of environmental law by public authorities. It will also be able to take legal action in serious cases if necessary.

It is anticipated that the OEP will be legally established in autumn 2021 once the Environment Bill receives Royal Assent and will be able to commence its functions in January 2022.

We are closely monitoring progress of the Environment Bill through Parliament and will report further in due course.

If you would like to discuss any aspect of this article further, please get in touch with a member of our team at sheregulatory@clydeco.com.