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Welcome to the November/December edition ofelaw where the focus is on natural capital and theenvironment.

Natural capital is all around us – in our land, air, waterand biodiversity. The government’s 25 yearenvironment plan uses a natural capital approachfollowing advice from the Natural Capital Committee,and pushes natural capital thinking into the

mainstream – but how can we quantify the value of our natural capital onhealth and wellbeing, as well as its impact on our economic growth?

We are most grateful to Tom McKenna for his article, Scotland’s NaturalCapital Asset Index which looks at the contribution of Scotland’senvironment to wellbeing and argues that the use of Gross DomesticProduct (GDP) is no longer appropriate as a proxy for general wellbeing.Scotland’s Natural Capital Asset Index tool is explained in detail andconsidered useful if taken as part of a wider set of indicators.

Thanks also goes to Richard Benwell for his piece, Do Defra’s big bills reflectnatural capital thinking? which assesses the extent to which the FisheriesBill, the Agriculture Bill and the Environment Bill use a natural capitalapproach.

In our final themed piece, The balance sheet of nature? On makingmonetary value UK ‘natural capital’ Sian Sullivan provides an excellentanalysis of the movement towards natural capital accounting, in particularthe monetary estimates for UK natural capital in 2016 and 2018 reports bythe Office for National Statistics. She notes that these values are derivedfrom broader economic contexts and appear to provide little indication ofthe present and future material state of the natures thus valued.

Finally, don’t miss John Bates’ engaging article, In times of war the law fallssilent which argues that consideration should be given in the currentEnvironment Bill to environmental protection in times of war or naturaldisaster and that environmental principles should set out the basis onwhich the environment will be protected in such times, with the role of theOffice for Environmental Protection in such circumstances being specified.

I would like to thank Sefki Bayram for his work as Editorial Assistant forelaw – he has now moved on to concentrate on his Bar Course and we willbe appointing a new Editorial Assistant over the coming weeks.

e-lawBetter law for the environment November/December 2019 | Issue 115

In this issueWords from the Chair 3

UKELA news 5

News from the devolvedadministrations 7

Working Party news 8

Student news 10

UKELA events 11

UKELA diary dates 12

The e-law 60 second interview 13

Environmental law headlines 14

Nature capital and theenvironment 17

Matters in practice 27

Adverts, jobs and tenderopportunities 30

About UKELA & e-law 32

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And finally, I hope you all have a merry Christmas and happy New Year andenjoy a well deserved break.

Best wishes,

Sophie WilkinsonUKELA e-law Editor

E-laweditorialteamSophie Wilkinson, Editor –Sophie is an environmentallaw specialist at LexisPSLwith 13 years’ experience,including 11 years’experience in privatepractice. She moved toLexisNexis from ShoosmithsLLP where she was a SeniorAssociate. Prior to thisSophie trained at BrowneJacobson LLP and spent 6years at Eversheds LLP.

Cecily Kingston is a traineesolicitor at R&R Urquhartsolicitors based in northernScotland.

Dr Ben Christman – Senioreditorial assistant, is anindependent environmentallaw researcher.

Sophie Wilkinson

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Welcome to this your final E-Lawfor 2019. Tis the season to bemerry, chestnuts will roast on anopen fire, halls will be decked withholly. I find that I prefer the wintersolstice to its summercounterpart, providing us with anopportunity to take a moment toreflect on the days, weeks, months

gone by in the year as well as to peer ahead into theunknown mystery of what might lie ahead for us.

At the close of 2018 when we stepped into theglittering possibility of 2019, who amongst uspredicted that a civil disobedience group callingthemselves Extinction Rebellion would bring thecapital to a standstill and put the ‘climate and natureemergency’ front and centre of our lives; that a youngSwedish activist would call on her peers ofschoolchildren to go on strike to demand that the‘grown-ups’ do a better job of protecting their planet,their futures; that the government would have beenthe first in the world to legislate for a net-zerocommitment; that we would find ourselves in thethroes of the first December general election since1923; and that there would be a ‘climate debate’ hostedespecially for the leaders of the political parties (withthe notable exception of the current Prime Minister).

Perhaps, however, some (or indeed many) of youmight have predicted that we would not have exitedthe European Union by the end of the year, yourability to future-gaze being more honed than others.

Either way, it has turned out to be quite a remarkableyear for us, especially in the context of environmentalissues. Climate change is now a regular news item inthe mainstream press, no longer a fringe issues for the‘hippies’. The tales of near extinction of the koala bearin Australia as a consequence of the bush fires is asstark a wake-up call to our impact on nature as ever.

Now more than ever there is a clear and demonstrableshift in the public’s perception and opinion of themultifaceted environmental crises we face. There is astronger appetite from the public for decision makersand actors to do something to avert the crises, and agroundswell of support for the necessary changes tobe made to achieve our desired outcomes of a safeclimate and healthy and thriving natural world.

Faced with all of this negative press and the starknessof the challenge ahead, it might seem hard to keepupbeat and pragmatically optimistic. But (and ofcourse, you know me, there is always a but) we aretold that we do have the tools, the capability to dosomething. And each of you all, as legal professionals

in this area, are equipped with the skills and resourcesto make a difference.

You will read in this E-Law about the Garner lecturedelivered by Baroness Brown of Cambridge sharingthe views of the Climate Change Committee on howthis country can meet its net zero target. I wassupremely reassured by the lecture as she identifiedthat, put frankly, we can do this and at not as muchcost as we originally thought. As I stated in my vote ofthanks, the lecture was encouraging in demonstratingthat, with early investment and getting policies right,the opportunity will not only keep us in line with thescientifically-based target, but will also have manypositive by-products for our society overall.

With the theme of this edition being on ‘naturalcapital’ you will be able to read more about whatScotland is doing to move towards preserving nature,contributing to the overall efforts to halt thedevastating impacts we are having on nature andspecies. This is not a new idea, per se, but it isinstructive to read the range of approaches andperspectives that have developed and evolved on thetopic presented.

As environmental law professionals you will all play anincredibly important role in advising on mattersrelating to how we can achieve the net zero target,and you will read later about the opportunities torespond to the highlighted consultations that areproposing amendments to existing building andenergy efficiency legislation that will contribute toevolving and enhancing the current frameworks tosupport these ambitions.

In news from UKELA’s Council – the strategic reviewprocess is well underway with Council meeting lastmonth to spend an afternoon going into detail aboutwhat we feel UKELA is all about, and how it can domore to support you all and achieve its overall aims.Refreshing our memories of the constitutingdocuments and objects of the charity, we were ableto remark on how visionary and progressive thefounders were in identifying what the need was, andhow to leverage the power of the law to fulfill andmeet that need.

We will, as previously noted, be writing to those of youwho have expressed an interest already and thosewho play, for example, a convening role, to canvassyour views on the strategic direction of UKELA for thenext five years. Lookout for our message in early 2020.

I want to take a moment to thank our retiring Patron,Professor Paul Leinster CBE, for offering so muchsupport and time to UKELA for the duration of his term.

Words from the Chair

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UKELA is so very grateful to Paul, and all our Patrons, forbeing such brilliant ambassadors for the organisationand lending advice, insights, and general support. I amalso delighted to welcome Professor Colin Reid as aPatron. You can read more about Colin’s CV later, and nodoubt see him around at various events here and there.Welcome Colin and thank you Paul!

So many of you give your time and energy toparticipating in the UKELA working parties and we areall deeply grateful to your expertise in doing so. Youwill see that a new working party is being proposed bythe convenors, providing a new opportunity for you toget involved in and share your knowledge andexperience as well as perhaps learn some more aboutthe finance industry and Environmental and SocialGovernance (ESG). No longer is this a niche area: ESG ismainstream and something that I am sure many ofyour clients are already asking about.

As ever, the winter term has been so very busy withevents. The wild law conference hosted at SussexUniversity was a real highlight, and as ever I found it soheartening to attend the careers evening and hearfrom prospective graduates and inspired youngprofessionals all seeking opportunities in theenvironmental law world. They, after all, are the nextgeneration of lawyers who will be required more thanever in the coming decades as we aim to meet ourclimate and nature targets and commitments. What Ifind so wonderful about our UKELA network is the peerto peer as well as inter-generational learning thatpasses knowledge and experience on from practitionerto practitioner. Now more than ever we need thatcombination of experience, know-how, creativity, andvision – as Baroness Brown was indicating in herlecture – to meet the challenges head on.

By 13th December we will have a better idea of thiscountry’s position on many laws that hang in thebalance currently: the Environment, Fisheries, andAgriculture Bills and a busy Parliament will ensuewhere there will be ample chance for UKELA membersto participate. As the environmental law experts ofthis country your views, knowledge, and expertise willbe widely welcomed and I look forward to learningmore as developments unfold.

By the end of the year, however, will we be able tolook ahead to 2020, peering into the misty the futureto try our best to determine with any semblance ofclarity what shape the year might take? An impossibletask at the best of times, but one that will I have nodoubt draw out the odd prediction here and there aswe clink glasses as the bells toll midnight on the lastday of the year.

What we can be sure of is that as part of UKELA you allcontribute to something bigger than yourselves andown individual practices. You will all offer up your timeand energy to support the collective efforts in variousguises and you will all in your own way make yourmark in what is set to be a critical year. As the climatenegotiations in Madrid kick off, the UN SecretaryGeneral reminds us that we are uncomfortably closeto the ‘point of no return’, and earlier this week hedgefund CEO, Sir Christopher Hohn called on directors ofcompanies to disclose their carbon emissions or risklosing out, it is all grist to the mill, all hands on deck,all pens at the ready.

We are here to help you in your efforts to leverage thelaw to make those changes that will all contribute tothis country not only meeting its net zero target, notonly protecting wildlife and nature, but also fixing thefuture in the best way we know how: by using the lawfor a better environment.

So perhaps instead of trying to make predictionsabout what lies ahead we can all make a commitmentto try to create the future that we want. After all, aslegal professionals you know just how much the penreally is mightier than the sword.

I wish you all the very best for your winter break andhope for you and your families a very Happy New Year.

Regards,

Kirsty SchneebergerUKELA Chair

Kirsty Schneeberger

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UKELA newsGarner lectureDelegates around the UK were treated to a wonderfulevening at this year’s Garner lecture. Ourdistinguished speaker was Baroness Brown, Vice Chairof the Committee on Climate Change. The theme ofher lecture was Delivering Net Zero. With UKELAmembers joining in the debate from Birmingham,Bristol, Edinburgh, Leeds, London, Manchester,Nottingham and Swansea in the UK and Hayley Tamjoining us from Australia, we really reached out acrossthe world this year.

Baroness Brown’s lecture was timely and thought-provoking, giving us all the opportunity to reflect onour organisation’s efforts to reduce our carbonfootprint and, in particular, what we could do better tocontribute to the ambition of achieving Net Zero by2050. Her slides set out starkly the pressures facingnot just the UK, but everyone across the world, tochange mindsets, habits and assumptions. But herpositive message was that we CAN do it by 2050. Wedon’t yet have all the answers, but that should notstop us from keeping going with the progress that hasbeen made. Her final quote came courtesy of GretaThunberg, who said: ‘This needs Cathedral Thinking.We can build the foundations without knowingexactly how we will complete the roof’.

You can watch the lecture on our website and viewthe slides (you will need to log in first as this is amembers’ only area). If you were not able to join us forthe event itself, why not gather some colleagues andwatch together to stimulate the debate.

UKELA is very grateful to Baroness Brown for agreeingto give this year’s Garner lecture and to our Patron,Professor Richard Macrory, who so ably chaired. Weare also hugely grateful to Freshfields for theircontinued support for the Garner lecture. Theirexcellent facilities and hospitality help to make theevening as enjoyable as it is.

New UKELA websiteand CustomerRelationshipManagement system(CRM)The new UKELA website is now live! Member mailingsare being sent out detailing clear instructions andscreenshots explaining how you login to the new site.Whilst the website remains reassuringly familiar, newbenefits include being able to set and manage yourusername and password, and access to our newintegrated events booking system. If you have anyquestions regarding the new CRM please contactUKELA Senior Administrator, Elly-Mae Gadsby

UKELA membershiprenewals for 2020Renewals will be sent out to all members who need torenew for 2020 from the beginning of December.Please look out for them and contact Elly-Mae Gadsbyif you have any questions.

UKELA AnnualConferenceWe are looking forward to being in Plymouth for ourAnnual Conference in 2020, as the city commemoratesthe 400th anniversary of the sailing of the Mayflower.As well as a wide range of plenary and working partysessions there will also be opportunities to networkand relax. To kickstart the weekend, on Friday eveningwe will be at Plymouth’s iconic arts and culture venue,The Box, that showcases the city’s majorredevelopment scheme and acts as a symbol for thecity’s current regeneration and future. Our AnnualConference 2020 will culminate in our Gala dinnerwhich will be held at the National Marine Aquarium. Itis the largest aquarium in the United Kingdom withcharitable aims of research, education andconservation. Bookings open later in the year but fornow please make a diary note for the dates: 26 – 28June 2020.

Looking ahead to 2021 our Annual Conference will beheld in Belfast. More details to follow.

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New UKELA PatronWe are delighted to announce that founding UKELAmember and convenor of the environmental lawsection of the Society of Legal Scholars, ProfessorColin Reid, has accepted our offer of becoming aUKELA Patron. After graduating from Oxford andCambridge, Professor Reid worked at the University ofAberdeen before moving to the University of Dundeein 1991, where he is currently Professor ofEnvironmental Law. He has taught and written onvarious environmental law and public law themes,including a book published in 2016, ‘The Privatisationof Biodiversity?’, which explores the potential of newapproaches to nature conservation law usingmechanisms such as biodiversity offsetting,conservation covenants and payment for ecosystemservices.

Professor Reid’s current work includes an Economicand Social Research Council (ESRC)-funded project onwho is using the public’s right of access toenvironmental information, what information is beingsought and how it is being used. He spoke at one ofthe first events on Brexit and the environment inNovember 2015. Since then he has been active inresearch and in speaking and writing for academicand practitioner audiences on the consequences ofBrexit for environmental law, especially the devolutiondimension. This has led to participation in researchprojects, including the Brexit & Environment Network,and in the UKELA Brexit Task Force, as well as givingevidence to committees of both the Westminster andHolyrood Parliaments and being a member of thegroup reporting on environmental governance inScotland for the Scottish Government’s roundtable onenvironment and climate change.

We are grateful to Professor Reid for his exceptionalcontributions to the field of environmental law andlook forward to continuing our working relationshipwith him.

UKELA Patronstepping downWe would like to extend our thanks to Professor PaulLeinster CBE for his valuable contribution in his time asa UKELA Patron. We wish Paul well in all his futureendeavours now that he is stepping down, and verymuch hope that he remains a friend of UKELA.

Christmas openinghoursThe UKELA office will be closed from 23 – 31December, but anything urgent will be dealt with bycontacting us at: info@ukela.org. Any other matterswill be attended to upon our return to the office.

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News from the devolvedadministrationsScotlandOn 22 March 2019, the Scottish Governmentpublished ‘Scottish Natural Capital: Ecosystem ServiceAccounts’ analysing data based on ten services beingsupplied by Scotland’s natural capital. Such servicesinclude agricultural biomass, timber, oil and gasproduction, and renewable energy generation,amongst others. The report notes that in 2015,Scotland’s natural capital was worth approximately£209 billion, totalling to 37% of the UK’s overall valueof natural capital. This percentage is a fall againstprevious apportionments of value in the context ofthe UK’s natural capital value.

The Scottish Government are placing more value onthe positive correlation between economicproductivity and thriving landscapes and naturalclimate solutions than ever before. Efforts includereviewing forestry, planning frameworks andnumerous consultations on factors such as the plastictax, fish farming and renewable energy. As noted in aprevious edition of e-law, on 5 February 2019 theScottish Government released ‘Scotland’s ForestryStrategy 2019-2029’, following the introduction of theForestry and Land Management (Scotland) Act 2018.The strategy sets out a 50 year vision for forestry andrelated land use in Scotland and a 10 year frameworkto achieve this vision. The report credits the Forest Act1919 for setting the foundation for the presence offorestry in Scotland, and notes that Scotland currentlybenefits from an economic contribution of £1 billionand over 25,000 jobs from its forestry, which covers anapproximate 19% of Scotland’s land mass. The ScottishGovernment have also invested an additional £11million this year into peatland regeneration as anatural climate solution to assist in reducing flood riskand to increase water quality and the absorption of airpollution.

In June 2019, the Scottish Government passed the billto introduce the Planning (Scotland) Act 2019, whichlooks to replace the currently National PlanningFramework 3 (NPF3) with National PlanningFramework 4 (NPF4). Section 1 of the new Act amendsthe Town and Country Planning (Scotland) Act 1997 tostate that the purpose of planning is to ‘manage thedevelopment and use of land in the long term publicinterest’, and that any proposed planning that willcontribute to sustainable development will beincluded within that definition. NPF4 is expected to bereleased by Q3 in 2020.

Northern IrelandOn 23 December 2019 the consultation on theNorthern Ireland Environment Strategy (theEnvironment Strategy) closes. The consultationopened on 18 September 2019 and is the firstconsultation of its kind to gain public insight into howNorthern Ireland can strengthen its ownenvironmental laws. The consultation recognises theimportance of protecting Northern Ireland’s ‘naturalcapital’ and the benefits that a healthy environmentcan provide in terms of mental and physical well-being. The Environment Strategy was launched in lightof growing demand for a Northern Ireland to create anindependent Environmental Protection Agency andwith the hope that the results of the consultation willassist policy-makers in Northern Ireland to extend andtailor any new laws deriving from the Environment Bill(currently being reviewed by Westminster) toNorthern Ireland. The Department of Agriculture,Environment and Rural Affairs will publish a summaryof the public submissions before drafting the strategyin early 2020.

Wales Since declaring a climate emergency in April 2019, theWelsh Government is now set to integrate carbonemissions targets into law next year to achieve a 95%reduction in greenhouse emission levels from 1990levels by 2050. Significant challenges will face Wales inmeeting this target, as they will in any nation but,especially, where natural solutions affect the extensiveupland areas of Wales.

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Working party newsNew sustainablefinance workingparty – are youinteresting in joiningan exciting newworking party?Over the last few years, we have witnessed an upsurgein green finance, with a worldwide acceptance nowthat Environmental, Social and Corporate Governance(ESG) criteria matter to the world of finance (andconsequently to all of us, as advisors). Therefore, webelieve that responsible investing, corporate socialand environmental responsibility, reportingrequirements, and green finance is an area ofincreasing value and interest to UKELA members.

With this in mind, UKELA’s Council is proposing that anew sustainable finance working party (SFWP) be setup. The working party could look into increasingregulatory requirements in relation to ESG. There aremany other areas of sustainable finance that may bealso be relevant e.g. the UN Sustainable DevelopmentGoals. The working party could also forge andmaintain links, on behalf of UKELA, with other relevantbodies (including, but not limited to UN PRI and theBVCA) as well as coordinating with existing UKELAworking parties in relation to matters which cross-overamongst various working parties.

We are therefore seeking expressions of interest frommembers to participate actively in (including convene)this new initiative. Provided that there is sufficientinterest, an initial meeting will be set up to define theterms of reference of the working party. Please sendany expressions of interest or related inquiries toPenny Latorre (Working Party Co-ordinator on UKELA’sCouncil) and/or Paul Stookes (UKELA’s Working PartyAdvisor):

Planning andsustainabledevelopmentworking party – callfor convenorsUKELA is looking for expressions of interest frommembers in the planning and sustainabledevelopment (PSD) working party, in particular fromindividuals who may be interested in co-conveningthis important working party.

Land use planning is essential to the delivery ofenvironmental law across the United Kingdom. Theworking party provides a forum for members todiscuss developments in national planningframeworks and how ‘sustainable development’ maybe achieved. It also responds to relevant consultations.It remains as important as ever.

To date, the working party has been active andsuccessful, including recent events on fracking andneighbourhood planning, however it is in need of newleadership. Meetings take place regularly, including atthe UKELA Annual Conference in June. Consultationresponses are coordinated with the UKELA team andwith other working parties. The working party isactively supported and promoted by UKELA includingassistance with administration and logistics.

If you would be interested in joining the PSD workingparty either as a co-convenor or simply as an activemember, please contact Paul Stookes (UKELA’sWorking Party Advisor) and/or Ned Westaway(Working Party Co-ordinator on UKELA’s Council)(email addresses below). Paul would also be happy tohave an informal discussion about this (tel. 07736 911487).

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UK Noise Associationpresentation: 9 December 2019Organised by the noise working party

John Stewart of the UK Noise Association will give ashort presentation on possible noise problemsassociated with certain forms of renewable energy at16.00 on Monday 9th December in the Francis TaylorBuilding, Inner Temple, London. Non-noise workingparty members are welcome to attend. Please contactthe convenor, Francis McManus, if you would like toattend.

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Students newsStudent publicationopportunityInterested in co-authoring a hot topic article with anenvironmental professional? UKELA provides anopportunity for students to publish their work in e-law, our members’ journal which is circulated to over1400 practitioners. Students are invited to email ashort abstract of up to 500 words to Sophie Tremlin orBeatrice Petrescu, our student advisers. If selected, theEditorial Board will endeavour to pair students with asupervising practitioner in that field. Articles can beon the e-law issue theme or on any topic related toenvironmental law. The themes for 2020 will bepublished on the UKELA website shortly.

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UKELA eventsYoung UKELA ‘the basics’: plasticwaste: 5 December 2019Organised by the Young UKELA teamOur early evening seminar will look at the regulatoryframework for controlling pollution from plastic waste,a highly topical theme, with speakers from HerbertSmith Freehills, Anthesis and TerraCycle. Bookings arenow open.

UK Noise Association presentation: 9 December 2019Organised by the noise working party John Stewart of the UK Noise Association will give ashort presentation on possible noise problemsassociated with certain forms of renewable energy at16.00 on Monday 9th December in the Francis TaylorBuilding, Inner Temple, London. Non-noise workingparty members are welcome to attend. Please contactthe convenor, Francis McManus, if you would like toattend.

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UKELA diary datesUKELA London meeting: Waste crime:12 February 2020Organised by London meetings teamJoin us to hear speakers: Anna Willetts, SeniorAssociate, Clyde & Co LLP; Samantha Riggs, Barrister,25 Bedford Row and Simone Aplin, Technical Director,Anthesis Group discuss waste crime; kindly hosted byHerbert Smith Freehills. Bookings open soon.

UKELA Annual Conference: 26 – 28June 2020Diary date! We are delighted to be heading toPlymouth in 2020 where the city will becommemorating the 400th anniversary of the sailingof the Mayflower. Booking details coming soon!

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The e-law 60 secondinterviewRichard Benwell is chief executive of Wildlife andCountryside Link, England’s largest environmentalcoalition. Previously he was policy advisor to theSecretary of State at Defra, working on the EnvironmentBill, the Agriculture Bill and the Fisheries Bill. Beforejoining Defra, Richard worked in policy and advocacy atWildlife and Wetlands Trust (WWT) and the Royal Societyfor protection of Birds (RSPB) and was a senior clerk inthe House of Commons Commission. His PhD was aboutthe design of carbon emissions trading systems. Richardhas also been a director of Westmill Solar Cooperative, acommunity energy project near his home.

What is your current role?Chief Executive of Wildlife and Countryside Link.

How did you get into environmental law?The path from birdwatching in Birmingham to writingon environmental legislation has been a prettystraight one! First I realised I love the natural world,then I realised it was in trouble. Working with anenvironmentally-minded Peer and as a CommonsClerk taught me how legislation works, then RSPB andWWT gave me the ecological detail. A quick sojournwith Defra later and here I am. Simple.

What are the main challenges in your work?There are never as many champions for nature inParliament as we need to drive through the seriousreform of environmental law needed to turn aroundthe state of nature.

What environmental issue keeps you awake atnight?Our invisible impacts are the hardest ones to face upto: we may do relatively well at protecting ourenvironment here in the UK, but that’s not much use ifwe’re exporting harm to other regions like theAmazon. It’s surely time for us to measure our globalfootprint properly and set government and corporategoals for improving supply chain sustainability.

What’s the biggest single thing that would make adifference to environmental protection and well-being?Turning Her Majesty’s Treasury (HMT) green. HMT’spower over the law shouldn’t be underestimated and,of course, they’re key to polluter pays and ensuringpaid tax and subsidies.

What’s your UKELA workingparty of choice and why?My friend William Wilson speakshighly of the Welsh group, so I’ll pick them.

What’s the biggest benefit to you of UKELAmembership?UKELA is the best hub of knowledge and sharedpurpose in the environmental law profession. It’sexcellent to find so many expert and committedpeople.

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Environmental law headlinesA selection of recent environmental law news and updates prepared by the teams at Lexis®PSL Environment andPractical Law Environment.

Environment BillLexis®PSL Environment

The Environment Bill was published on 15 October2019, following Queen’s Speech announcements on14 October 2019 and further to section 16 of theEuropean Union (Withdrawal) Act 2018.

The Environment Bill (the Bill) contains details ongovernance including provisions relating to the Officefor Environmental Protection (OEP) and environmentalprinciples, as published in December 2018 as theEnvironmental (Principles and Governance) Bill,though updated in light of the pre-legislative scrutinyreceived. The OEP, a new watchdog body to try to fillthe void left by lack of recourse to the EuropeanCourts post Brexit, will offer new enforcementmechanisms and is intended to be a way ofmonitoring implementation of environmental law. Inaddition, the governance part of the Bill provides forlong term targets for improving the naturalenvironment in certain priority areas.

Aside from the provisions on principles andgovernance, the Bill also includes specific provisions inareas covered in the government’s 25 Year Plan. Theseinclude waste and resource efficiency (includingproducer responsibility, deposit return schemes,single use plastic, managing waste and wasteenforcement), air quality and environmental recall,water (including water resource planning, regulationof water and sewerage undertakers, abstraction, waterquality and land drainage), nature and biodiversity(including local nature recovery strategies and treefelling) and conservation covenants.

As a consequence of the General Election taking placeon 12 December 2019, Parliament was dissolved on 6November 2019, and so bills not yet made fell away. Anew government formed following the GeneralElection will have to re-introduce the Bill to Parliamentif it wants to enact the provisions in the Bill, followingpre-legislative scrutiny.

For more information, see: The Environment Bill –snapshot.

UK antique ivory dealers’ judicialchallenge against Ivory Act 2018dismissedPractical Law Environment

The UK is a party to the Convention on InternationalTrade in Endangered Species of Wild Fauna and Flora(CITES), which aims to protect elephants by prohibitingtrade in new ivory. African elephant numbers continueto decline significantly, mainly due to poaching. CITESallows parties to adopt stricter domestic measures.When commenced, the Ivory Act 2018 will extend theban under CITES to prohibit trade in all elephant ivoryin the UK (subject to very limited exceptions).

The EU Wildlife Trade Regulation ((EC) 338/97)implements CITES and governs the ivory trade in theEU. It distinguishes between intra-EU ivory trade andcommercial export from the EU as it allows pre-1947worked ivory items to be traded within the EU withoutan authorisation certificate. The EU is consideringwhether to impose a complete ban on trading ivoryboth within and to outside the EU.

In R (Friends of Antique Cultural Treasures Ltd) vSecretary of State for the Environment, Food and RuralAffairs [2019] EWHC 2951 (Admin), the High Courtdismissed a judicial review challenge to the Ivory Act2018 brought by UK dealers in antique worked ivory.They applied for judicial review on the basis that theIvory Act 2018 is incompatible with EU law in introducinga total ban on all ivory when the Act is commenced.

The court concluded that:

• The UK had competence to introduce the Ivory Act2018. Article 193 of the Treaty on the Functioning ofthe European Union (TFEU) stated that member statescould adopt more stringent measures than thoseadopted by the Council under Article 192, whichprovided for environmental safeguards and which hadled to the (less stringent) EU Wildlife Trade Regulation.The regime was of minimum, not exhaustive,harmonisation. It imposed EU-wide floors, not ceilings.

• The ivory trade ban would not be disproportionateunder EU law, the Charter of Fundamental Rightsof the European Union, or Protocol 1, Article 1 ofthe first Protocol to the European Convention onHuman Rights (ECHR), which provides the right topeaceful enjoyment of possessions withoutarbitrary state interference.

For more information, see Legal update, UK antiqueivory dealers’ judicial review challenge against IvoryAct 2018 dismissed (High Court).

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Strict interpretation of derogationfrom protection for Finnish wolvesunder Habitats DirectivePractical Law Environment

Common wolves are a protected species in Finlandand critically endangered. In 2015, the Finnish wildlifeagency issued derogation permits to hunt sevenwolves on the basis that it would help to reduce publicfear and avoid illegal poaching, which wouldultimately help conserve the wolf population.

A Finnish nature conservation NGO,Luonnonsuojeluyhdistys Tapiola (Tapiola), broughtactions against the Finnish wildlife agency seeking toannul the permits.

The Finnish Supreme Administrative Court applied tothe Court of Justice (ECJ) for a preliminary ruling onthe interpretation of the application of Article 16(1) ofthe Habitats Directive (92/43/EEC) in relation to thederogations relied upon.

Article 16 of the Habitats Directive allows memberstates to make limited derogations from the system ofstrict protection for European protected species inArticle 12(1) where there is no satisfactory alternativeand it is not detrimental to the maintenance of thepopulation of that protected species.

On 10 October 2019, in LuonnonsuojeluyhdistysTapiola [2019] EUECJ C-674/17, the ECJ upheld a strictinterpretation of Article 16(1), which sets out therequirements and conditions that member statesmust meet to benefit from the limited derogationswhere there is no satisfactory alternative and it is notdetrimental to the maintenance of the population ofthat European protected species. It highlights thatclear and extensive evidence, monitoring andconsideration of alternatives are required.

The court returned the case to the national (Finnish)court to ascertain whether those Article 16(1)requirements had been achieved.

For more information, see Legal update, Strictinterpretation of derogation from protection forFinnish wolves under Habitats Directive (ECJ).

The Future Homes StandardLexis®PSL Environment

On 1 October 2019, the Ministry of Housing,Communities & Local Government published itsconsultation: The Future Homes Standard: changes toPart L and Part F of the Building Regulations for newdwellings. The consultation contains proposals toamend the Building Regulations 2010 in order toimprove energy efficiency standards and contribute tothe government’s 2050 net zero greenhouse gasemissions target.

The consultation sets out plans for the Future HomesStandard (FHS), including proposed options toincrease the energy efficiency requirements for newhomes in 2020. The FHS will require new build homesto be future-proofed with low carbon heating andworld-leading levels of energy efficiency and will seepolluting fossil fuel heating systems, such as gasboilers, banned from new homes. It is intended thatthe requorements will be introduced by 2025.

The consultation will run until 10 January 2020 withfurther consultation on work to existing buildings,overheating in new dwellings and new non-domesticbuildings following soon after.

The publication of the new Part L (conservation of fueland power), Part F (ventilation) and overheatingregulations, including associated guidance and thesupporting analysed consultation response documentis expected by early to mid-2020. Updated Part L, PartF and overheating regulations will come into force bymid-to-late 2020.

A FHS industry task force will be established in 2021 tocarry out further research and there will be a casestudy on homes built to 2020 standards and earlyadopters of FHS. The research will continue into 2023.From 2022, the Government will begin to develop anevidence base with the intention of consulting on theimplementation of the FHS in 2024. Furtherconsultation on the exact technical detail, guidanceand impact assessment for the introduction of FHS willtake place in the near future.

For more information on the FHS, see: The FutureHomes Standard – meeting net zero emissions.

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Consultation on Minimum EnergyEfficiency Standards (MEES)Lexis®PSL Environment

On 15 October 2019 the Department for Business,Energy and Industrial Strategy (BEIS) published itsconsultation on the future trajectory of MEES forcommercial properties under the Energy Efficiency(Private Rented Property) (England and Wales)Regulations 2015. In the consultation, theGovernment seeks views on increasing the energyefficiency standard for commercial property from E toB, or alternatively, from E to C, by 1 April 2030. TheGovernment is also considering whether the increasein the minimum standard should be introducedincrementally rather than by a single implementationdate. The consultation closes on 7 January 2020.

For more information, see: LNB News 16/10/2019 81.

Scotland legislates for net zeroemissions by 2045Lexis®PSL Environment

The Climate Change (Emissions Reduction Targets)(Scotland) Act 2019 was passed on 1 November 2019following the passage of the Climate Change(Emissions Reduction Targets) (Scotland) Bill on 26September 2019 and in the wake of the Committee onClimate Change’s advice in the report: Net zero – theUK’s contribution to stopping global warming.

It amends the Climate Change (Scotland) Act 2009(CC(S)A 2009) to:

• Specify 2045 as the net zero emissions target year.• Increase the emissions reduction target for 2020

from 42% to 56%, and set new emissions reductiontargets for 2030 and 2040 (of 70% and 90%respectively).

• Make provision setting annual targets for everyother year between 2020 and 2044. In addition, forreporting purposes only, it establishes new annualtargets for 2018 and 2019.

• Make provision in relation to emissions accounting.In particular, new restrictions are imposed oncarbon units surrendered as a result of theoperation of an emissions trading scheme andcarbon units purchased by the Scottish Ministersthat may be credited to a net Scottish emissionsaccount.

• Adjust the way in which international carbonreporting practice is applied for the purposes ofassessing and reporting under a new section 33 ofthe CC(S)A 2009.

• Make provision in relation to reporting andplanning duties. In particular, it replaces theprevious annual reporting requirements in relationto emissions with new reporting requirements. Italso replaces requirements in relation to reports on

proposals and policies with a new requirement tolay before the Scottish Parliament a ‘climatechange plan’ every five years and to also layreports, each relevant year, assessing the progresstowards implementing the proposals and policiescontained in each substantive chapter of the mostrecent plan.

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Natural capital and theenvironmentScotland’s Natural Capital Asset IndexTom McKenna, economist for Scottish Natural Heritage

At a glance• The use of Gross Domestic Product (GDP) is no

longer appropriate as a proxy for generalwellbeing.

• A new indicator was required to track thecontribution of nature to human wellbeing.

• Scotland’s environment’s contribution to wellbeingis improving but is still some way off historicallevels.

• The Natural Capital Asset Index (NCAI) is a usefultool but should be taken as part of a wider set ofindicators.

Bobby Kennedy described GDP by saying ‘it measureseverything in short, except that which makes lifeworthwhile.’ The NCAI was developed by ScottishNatural Heritage (SNH) to provide an additionalmeasure of Scotland’s performance and one thatreflects a broader understanding of human wellbeing,particularly our dependence on nature.

Natural capital is our ‘stock’ of land, air, water andbiodiversity. This stock underpins the economy byproducing value for people, both directly andindirectly. Value is attached to benefits deriving fromecosystem services which flow from natural capital,including clean air, water, food, energy, wildlife,recreation and protection from natural hazards. Thesebenefits, or ecosystem services, are broken into threebroad categories:

• Provisioning services are extractive benefits suchas food, water or timber.

• Regulating and supporting services are thoseprocesses that keep our environment in ahabitable state for humans to live in and includewater filtration, air purification and water retention(to reduce flooding) amongst others.

• Cultural services are benefits we derive from theenvironment experientially and are oftenintangible. These include spiritual, inspirational,religious and aesthetic values. They also includebenefits from tourism and recreation.

Most of the benefits provided by nature can’t betraded on traditional markets because they are non-rival (the cost of marginal production is zero) and non-excludable (they can’t be excluded from use byothers). In essence, this means that these benefitsaren’t normally accounted for in economic decisionmaking. They aren’t captured in GDP, the traditional

metric for understanding humanwellbeing, despite the large, obvious and directcontribution of the environment to human wellbeing.

Since the Second World War a country’s success hasusually been measured by its GDP. The logic is that as anation’s citizens become better-off, they are able tomeet more of their basic human needs and ultimatelythis improves their wellbeing. However, as nationshave developed and basic needs are more commonlybeing met, there has been a general decouplingbetween GDP and wellbeing. GDP also struggles toaccount for benefits that can’t be traded on markets –community values, social values and environmentalbenefits. These benefits often fall under the umbrellaof Social Capital and Natural Capital. GDP also doesn’taccount for unpaid work, such as social care andhousework.

An indicator was required to more directly track thecontribution of Scotland’s natural habitats to thewellbeing of Scotland’s citizens. Following a first pilotdeveloped in 2011, in 2015, SNH published the NCAIas an indicator for Scotland’s National PerformanceFramework1 which focused on sustainable andinclusive growth. The NCAI is a change indicator andmeasures changes since the year 2000. Unlike othernational natural capital accounts, the NCAI does notuse monetary figures.

The NCAI works on the premise that we know the typeand extent of habitats in Scotland, what benefits thesehabitats can provide and how people value thesebenefits. The NCAI model also assumes that habitats inbetter condition are able to function better andtherefore provide more and better quality benefits.Figure 1 shows the data used in the NCAI and theweighting processes that are undertaken to provide afinal index.

The index combines data about the habitats inScotland (A) and the ecosystem services these habitatswould typically deliver (B). These are combined withdata assessing the preferences of Scotland’s citizensfor different ecosystem services (C). Finally, the abilityof habitats to provide benefits to people is assessed.The underlying theory is that healthy, well-functioninghabitats are able to provide high quality andquantities of ecosystem services. 38 environmentalquality indicators are used to assess the health andquality of these habitats and how this changes overtime (D).

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Habitat data (Input A) uses the European NatureInformation System (EUNIS). Extents are taken fromthe EUNIS Land Cover of Scotland maps (ELCS).Unfortunately, ELCS is not updated annually but someof these figures are adjusted using agricultural andforestry statistics.

Habitat ecosystem services potential (Input B) is basedon work undertaken by Burkhard et. al. (2014),2

adapted to reflect Scottish habitats. It looks at a typicalScottish habitat and assesses the potential of thathabitat to provide ecosystem services on a scale of 1-5where 5 is maximum potential and 1 represents verylittle potential. If no potential is present 0 is scored.

Inputs A and B are combined (Figure 1, process 1) togive an ‘ecosystem service base’, i.e. the maximumpotential benefits that Scotland’s environment canprovide in a perfect state. However, we know that notall benefits derived from the environment are enjoyedequally and certain benefits, such as clean air, foodand water, are likely to be more important than others,for example mechanical energy from animals oraesthetics.

National ecosystem services weighting (Input C) isused to attribute weight across ecosystem servicesbased on how Scotland’s citizens prioritise theirimportance. It is based on international peer reviewedstudies from Finland and Australia, as well as Scotlandspecific data including a public questionnaire, marketdata and expert opinion. It was found that Scotland’scitizens favoured regulating and supportingecosystem services. Provisioning and cultural serviceswere also found to be important.

Information about ecosystem service weightings werecombined with the ecosystem service base (whichwere calculated using inputs A and B) to create a‘wellbeing base’ (Figure 1, process 2), the maximumpotential contribution to human wellbeing fromScotland’s habitats.

Habitats that are in better condition are able toprovide higher quality and more abundant ecosystemservices. Ideal indicators have full Scottish coverage,are updated annually and there is a strong correlationbetween the indicator and the habitat or ecosystemservice it represents. However, ideal indicators aredifficult to find, so some variation from these terms isallowed. All indicators have been separately assessedthrough a review by the James Hutton Institute.Indicators may represent a specific ecosystem serviceflow across several habitats, for example the uplandbird index demonstrates changes across all thehabitats that upland birds may rely on – for examplebog, grassland and heathland. Other indicators willprovide information about specific habitats: Woodlandsite condition monitoring is an example here.

After the indicators have been standardised byindexing to the year 2000 (Process 3, figure 1) they arecombined with the ‘wellbeing base’ from inputs A, Band C. The final figure is then indexed against the finalfigure obtained in the year 2000 and showsproportional changes. Figures have now beencalculated from 2000 to 2017. Habitat ecosystemservice potential (Input B) and national ecosystemservice weightings (Input C) values have not beenaltered since the NCAI was created, therefore allchanges reflected by the NCAI are driven by changesin habitat type, extent and quality.

Figure 1: Flowchart of inputs and weighting processesbehind the NCAI

Figure 2: An example habitat-ecosystem service matrix

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This data is combined through a series of weightingprocesses and the final output value is tracked inrelation to the year 2000 benchmark. Annual changesare reflected as a percentage change relative to the2000 value (100).

ResultsResults for the NCAI are illustrated in Figure 3 below.Natural capital in Scotland is now at its highest levelsince 2000, despite a decline for a short periodresulting in a low in 2012. Cultural and regulation andmaintenance services both follow this trend.Provisioning services have increased consistently overthis time period.

The NCAI can be further split down into trends acrossdifferent habitat types which provides more of anindication of the state of these particular habitats.Inland surface waters (lochs, rivers and reservoirs) forexample, have improved by around 9% since 2000whereas heathland habitats and bog habitats haveboth decreased by around 3%, despite recentimprovements. Understanding these more nuancedtrends may allow a more detailed understandingabout Scotland’s natural environment and may evenbe used to highlight issues that should be addressedas a high priority.

A more rudimentary version of the NCAI was backcastto 1950 (Figure 4) and illustrates a long trend ofdecline in Scotland’s natural habitats. It also showsthat despite natural capital having improved since2000 there is still lots of potential for improvementback to previous levels.

Further informationWe are mindful of the limitations in the methodologyand in the data availability for the index. In order totest whether these weaknesses would be problematicwe ran a series of statistical tests to test the internalweightings, assumptions of services provided byspecific habitats and the weight given to the 38indicators used to calculate the index.

We found the NCAI to be robust, legitimate, credibleand useful for policy making, meeting all four of theoverarching aims of the index. Nevertheless, we’llcontinue to work with others to find ways to improvethe index and fill gaps in the indicators wherepossible.

As the first index of its type in the world, the NCAI hasreceived a lot of interest beyond Scotland, particularlyfrom governments who want to reflect natural capitalin their performance measures

A journal article with the full methodology hasrecently been published by Ecological Indicators as isavailable online. The journal article adds to existingcommunications outputs around the NCAI – atechnical summary, an update summary and a visualStoryMap which are all available on SNH’s websitewww.nature.scot. The full model is also availableonline.

Tom McKenna is an ecological economist and naturalcapital expert. He works as an economist for ScottishNatural Heritage. See also T McKenna and others,‘Scotland’s Natural Capital Asset Index: Tracking Nature’sContribution To National Wellbeing’ (2019) 107Ecological Indicators.

Endnotes1 ‘National Performance Framework’

(Nationalperformance.gov.scot, 2019)<https://nationalperformance.gov.scot/> accessed13 November 2019.

2 Burkhard B and others, ‘Landscapes’ Capacities toProvide Ecosystem Services – A Concept For Land-Cover Based Assessments’ (2009) 15 LandscapeOnline.

Figure 4: A backdated NCAI to the year 1950. This versionuses less quality indicators at coarser temporal scales.

Figure 3: Results of the NCAI by ecosystem service typeand overall trend between 2000 and 2017.

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Do Defra’s big billsreflect natural capitalthinking?Richard Benwell, Chief Executive of Wildlife and Countryside Link

At a glance• ‘Natural capital’ is an economic term used to

describe elements of the natural environment thatprovide benefits for people.

• It is increasingly referenced in Government policyas a way of incorporating the value of nature indecision-making.

• A fully fledged ‘natural capital’ approach in law is along way away: it might include new rules for theinvestment, management and maintenance ofenvironmental assets alongside more traditionalregulatory approaches. These kinds of economicapproaches should be used alongside moreorthodox regulatory approaches that protect theintrinsic value of nature for its own sake.

• If the Environment Bill, Agriculture Bill andFisheries Bill return to Parliament, they would needto be amended considerably to contribute to aneffective natural capital approach.

• Clearer targets, more money, and bettermeasurement of the state of nature are allpreconditions for an effective natural capitalapproach.

The Government first promised its 25 yearenvironment plan in 2015. That year, all three mainparties proposed long-term environmental plans intheir General Election manifestos.

For many of us in the environmental movement, thatwas a moment of real hope. Finally, the rush foreconomy growth at all costs could be tempered withenvironmental realism. When the plan came, it was fullof bold words. It promised that a new natural capitallens would fix the old economic myopia ofGovernment, finally allowing nature’s needs to bevalued properly.

But, that same year, look to the law and you find a verydifferent story.

2015 was the year when the Infrastructure Actreceived Royal Assent. Look to Section 41 –maximising economic recovery of UK petroleum – andwe find a duty on the Secretary of State to collaboratewith the oil and gas industry to maximise theeconomic recovery of UK petroleum.

2015 was also the year when the Deregulation Actreceived Royal Assent. Look to Section 108 – Exerciseof regulatory functions: economic growth – here youfind a duty on public bodies to exercise their functionsin such a way as to maximise economic output.

2015 was also the year when deregulation reached itspeak. The red tape challenge had started off with aone-in-one-out rule. With little regard for the non-monetary benefits of regulations for environmentalprotection, the Government was obliged to findseveral pounds of savings for business for every £1 ofcost incurred because of new regulation. This isillustrative of how much the world view of the Treasuryis still shaped by old fashioned notions of growth,despite some improvements in the Green Book.

So, even as we were promised change on the one hand,the statute book was being reinforced with old ways ofthinking. Since then, of course, Brexit has brought newpressures for our body of environmental law.

Although section 3 of the EU Withdrawal Act meansthat the body of EU regulations will be lifted acrossinto UK law and section 2 means that the body of EU-derived regulations in UK law will be retained, theGovernment has now made it clear that divergencefrom EU law is not just a possibility, but an expectationif the Conservatives are re-elected.

There is already pressure from prospective tradepartners to agree to deals that could weaken UKenvironmental standards, in a world of internationaltrade where environmental arguments have provennotoriously difficult to win.

So, we have an old-fashioned statute book, we havenew pressures on environmental regulation, and wehave an outmoded world view in an evermorepowerful Treasury.

The environmental bills of 2019:fisheriesThanks to the campaigning efforts of the environmentsector, 2019 offered the chance for change with threeDefra bills in Parliament.

As it stands, the Fisheries Bill could not be further froma natural capital bill.

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Fisheries are a classic case of a renewable naturalcapital resource. If they are managed well, then thefuture economic value of sustainable fisheries isessentially infinite, a resource that will keep giving,year-after-year. According to the Natural CapitalCommittee, the annual value of fish stocks could beincreased by £1.4 billion by restoring stocks to 20th

century levels.

However, if a renewable resource is pushed beyond itslimits, breaching the threshold where it is able toreplenish itself, then the value of the natural capitalplummets. Catch too many fish and the populationcan no longer sustain itself. The economic valuederived from nature is destroyed.

Under the EU Common Fisheries Policy, there is a legalobligation on the EU Commission to set annual ‘TotalAllowable Catch’ in line with the economic concept of‘Maximum Sustainable Yield’. In other words, the levelthat balances exploitation today with the needs of thefuture.

In the Fisheries Bill, however, the concept of ‘MaximumSustainable Yield’ is relegated to a policy statement,with no direct duty on Ministers to set catch limits inline with sustainability.

While there is a duty on the Secretary of State inclause 6 to exercise his or her functions in line with thepolicy statement, this is caveated with ‘unless relevantconsiderations indicate otherwise’. Relevantconsiderations are not defined. So they could include,for example, short-term economic considerations, orsimply that the Secretary of State has agreed to a dealwith an international partner.

If the Fisheries Bill is to even resemble a natural capitalbill, this enormous loophole must be closed.

If it is to live up to the rhetoric of a green bill, then itshould go further and recognise that fishing tomaximum sustainable yield is a very partialconsideration of the natural capital systems in ouroceans.

Fish stocks are complex, interdependent systems thatrely on the wider health of ocean ecosystems, as wellas the number of fish taken out of the sea. A FisheriesBill in line with natural capital thinking would includeobligations to restore marine ecosystems, fishing atprecautionary natural thresholds rather than narroweconomic or politically-motivated limits.

The Agriculture BillThe second bill in line is the Agriculture Bill. Here,there is more promise, thanks to the prominence ofthe concept of public money for public goods,championed by the National Trust, the RSPB andothers. The Government has promised to shift that

money to pay for public benefits like climate changemitigation, enhancement of biodiversity and floodrelief. Again, there are several weaknesses.

The most glaring is that, while there is a power forGovernment to bring in a new environmental landmanagement system, there is no obligation to do so.Nor is any provision made for how much moneyshould be spent in the new environmental landmanagement system beyond the next year or two.Economic assessments by environmental NGOs andstatutory agencies suggest that the amount of moneyneeded to restore the farmed environment is in theorder of £3 billion.

That means that farmers are looking at the land theyhave under environmental management already, withno confidence that they will continue to be paid fortheir hedgerows, wildflower verges and skylark plots.Far from incentivising thousands of hectares of newgreen farming, we face losing what we already have.

So, to make the Agriculture Bill a natural capital bill,the power to create an environmental landmanagement system should be amended and made aduty. This should be underpinned by a commitment tomulti-year assessments of the investment needed tomaintain the natural capital stocks in the farmedenvironment. This would require the kind of assetregister and condition assessment that theGovernment expects for other key economic assetsand bring our natural assets in line with othereconomic value.

On the other hand, there is one area whereagricultural reform risks going too far too quickly onnatural capital.

It is, of course, an important aspiration of naturalcapital thinking that monetary value should beassigned to natural capital assets and services totarget investment and improve value for money. Thisshould help policymakers to decide how to divide afinite pot of environmental investment betweendifferent policy goals.

However, early attempts to model whereenvironmental subsidies should be spent usingnatural capital research lead to some very badconclusions. Early models for farm spending to delivernatural capital value disproportionately favour thosenatural capital assets and services that are easiest tomeasure and value: flood risk mitigation and amenity.

Taking the natural capital modelling literally to targetenvironmental land management payments wouldlead to doughnuts of tree-planting around the majorconurbations, Manchester, Birmingham and London,safeguarding homes and giving people woodlands toenjoy on their doorsteps, but this risks neglecting

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wildlife and habitats in the wider farmed environment,which are much harder to measure and much easier toignore.

While natural capital valuations are helpful as a rule ofthumb for identifying where to invest, taking theapproach too far could lead to some very badenvironmental outcomes.

The Environment BillA strong Environment Bill is necessary to deliversystemic change. The current proposals requirestrengthening across the board.

Natural capital thinking is about much more thanattaching numerical values to particular assets orservices. First and foremost, natural capital is aboutvisibility. For thousands of years, mankind has treatednature as if it were an infinite resource, free andeverlasting. To change things, we need to make therisks to nature apparent to people and Parliament.

So, the first big opportunity in the Environment Bill isto set the 25 year plan on a statutory footing and torequire Government to publish a fulsome set ofmetrics to report on progress. With the theatre ofannual reports in Parliament – a ‘budget’ for nature –this can give the kind of accountability needed tobring environmental considerations to the fore.

Strong accountability needs to be matched with aclear trajectory. Reporting on the state of natureshould be accompanied by clear targets for how wewant to change things. Legally-binding targets give afocus for better policy making and provide certaintyfor businesses to invest.

Clause 1 of the Environment Bill would set a frameworkfor setting legally-binding targets, but the legal dutywould be satisfied by setting just a single goal in eachpriority area (air, water, waste and wildlife).

At the core of natural capital thinking is therecognition of the interdependence of complexsystems of natural capital assets. Applying theseinsights to the Environment Bill would require a dutyto set sufficient, scientifically-informed targets in eacharea to achieve an ‘apex goal’ of turning round thestate of nature for the next generation (a reasonableinterpretation of the significant environmentalimprovement test set out in clause 6, which should beextended to the first round of target-setting).

The second aspect of the Environment Bill that must bestrengthened is local planning for nature. Trulyenhancing natural capital requires a decent level ofunderstanding of complex ecosystems at the local level:what habitats, species and resources we have and whatsteps are required to enhance and connect them.

The Wildlife Trusts have campaigned hard for a newsystem of environmental spatial planning: naturerecovery networks. Clause 91 of the Environment Billintroduces a new requirement for ‘nature recoverystrategies’ to be in place across England. This has thepotential to provide practical application of naturalcapital thinking at the local level, identifyingenvironmental assets and the services they provide,and targeting investment to maintain and enhancethem. But unless those plans are accompanied byclear legal hooks to the planning system andspending decisions, these will end up being dustydocuments sitting worthily on a shelf somewhere.

At the moment, clause 89 simply requires localauthorities to have regard to Nature RecoveryStrategies in making their environmental plans. This isa very weak link between plan and policy. Instead, anynew system of local environmental planning mustdock carefully into the Town and Country Planning Actand into new spending and subsidy regimes likeenvironmental land management and the growthdeals, ensuring that natural capital is identified at thelocal level can actually hold sway in planning andspending decisions.

The wider contextIt is important that we set the very local mosaic ofenvironmental needs within the global context. 2020 isgoing to be a big year for our environment and with luck:

• We will set global targets for nature in theConvention on Biological Diversity.

• We will bring forward nationally determinedcontributions for averting dangerous climatechange at COP26 in Glasgow.

• We will agree a new Global Oceans Treaty toprotect 30% of our seas by 2030.

In that context, it is vital that national natural capitalaction does not simply offshore our environmentalimpact. So, when the Environment Bill is reintroduced,it should include new provisions for corporatedisclosure of supply chain impacts of key commoditiesand goals for reducing our internationalenvironmental footprint.

With our international academic excellence in naturalcapital thinking, and with the vigour of our nationalecological campaign movement, we are at a raremoment in time when real, systemic change is possible.

When Parliament returns, the three Defra bills shouldbe revived and strengthened. In the future, we cangenuinely make the polluter pay, measure and investin our environmental assets, and reward people andbusinesses who enrich our natural world.

Dr Richard Benwell is Chief Executive of a major coalitionof environmental and animal welfare charities.

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The balance sheet ofnature? On makingmonetary value of UK‘natural capital’Sian Sullivan, Professor of Environment and Culture at Bath Spa University

• Highlights increasing use of ecological accountingmethods to create ‘natural capital accounts’ aimingto make nature values visible as stocks of ‘naturalcapital’ and associated flows of priced ‘ecosystemand/or environmental services’.

• Reviews monetary estimates for UK ‘natural capital’published as a balance sheet of natural capitalassets by the Office of National Statistics in 2016and 2018.

• Asks where value comes from in these estimates,highlighting resource rents and external marketdynamics as sources for calculated natural capitalvalue.

• Expresses concern about the unvalued‘externalities’ overflowing these calculated values,as well as constant ‘asset life assumptions’ in theface of multiple potential future sources ofvariability.

• Concludes that caution is called for in celebratingthe environmental care potential of ‘valuing nature’in natural capital accounts.

… capitalism cannot be fully attained or practiced[sic] until... we have an accurate balance sheet [thatplaces] natural capital on the balance sheets ofcompanies, countries, … [and] the world.1

A global consolidation of ecological accounting, andparticularly natural capital accounting, aims to makenature values visible both as stocks of ‘natural capital’and associated flows of priced ‘ecosystem and/orenvironmental services’.2 These innovations extendolder ‘full cost accounting’ methodologies to coversocial and now environmental costs conventionallyconsidered external to financial transactions.3 Throughmutually supportive discourses, institutionalassemblages and calculative devices, this multiscalarmovement towards natural capital accounting iscreating conditions in which dimensions of ‘thenatural world’ – or, at least, numbers considered torepresent these – are further enrolled into amonetised ‘balance sheet of nature’.

In this article4 I primarily consider the presentation ofmonetary estimates for UK ‘natural capital’ in aNovember 2016 ‘statistical bulletin’ published by theUK’s Office for National Statistics (ONS),5 to which allpage numbers below refer, complemented byinformation in the 2018 publication of ‘EcosystemService Accounts’ from 1997-2015.6 These reports useaccounting and valuation methods developed by theDepartment for Environment, Food and Rural Affairs(DEFRA), as advised by the UK’s Natural CapitalCommittee,7 to highlight the value of‘environmental/ecosystem services’ provided by theUK’s ‘natural assets’.

The resulting balance sheet constitutes a nationalnatural capital account that highlights ‘the relativeimportance of services provided by the UK’s naturalassets’ (p.1, emphasis added). This accountingapproach is set within a global context of aninvigorated United Nations System of Environmental-Economic Accounting (SEEA)8. Bolstered by the WorldBank’s Wealth Accounting and Valuation of EcosystemServices (WAVES) programme9 and the EU and UN’sEconomics of Ecosystems and Biodiversity (TEEB)programme,10 SEEA provides technical accountingmethods for including national environmental assetsin national accounts.

‘Natural capital accounts’ allow nature’s values to bepresented and compared as statements of assets,liabilities and capital at specific moments in time. Thisis framed as ‘a consistent way of looking at thesignificance of nature [contributing non-producedforms of wealth]’ which ‘can help identify drivers ofchange’ (p.4).

Towards the close of the 2016 bulletin, a balance sheetof monetary estimates for UK natural capital ispresented (p.21). This balance sheet appears as a tableof two columns of figures providing monetised valuesfor the ‘operating stock’ of disaggregated ‘naturalcapital asset categories’ at ‘year end’ in 2007 (mostly)and 2014. The 2018 ONS report adds a third column ofvalues for ‘natural assets’ for 2018. The table belowcombines these three years of natural asset accounts.

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In this balance sheet a series of dimensionsconstituting ‘nature’ – water, fish, wind captured inwind energy installations, carbon sequestered in trees,and so on – are represented as single figures in billionsof pounds from which losses and gains in economicvalue between three points in time can be assessed.‘Natural assets’ are thereby known in terms ofarithmetical numbers, their monetised numericalvalues are counted, their relative importance isclarified, and their quantitative change between threetemporal moments is calculated.

These calculated certainties notwithstanding, it seemsimportant to look behind the balance sheet to seehow the entered values are derived, whose valuesthey may represent, and what they exclude and maythereby devalue.

Where does ‘value’ comes from?For the majority of natural capital asset categories, themonetised values entered on this balance sheet arebased on resource rents to industry owners of ‘naturalcapital’. These resource rents are calculated as the netincome to the owners of a natural capital resourceafter deduction of production costs, fixed capitalmaintenance and relevant taxes and subsidies (p.6).Natural capital values are thus computed as income tonatural capital owners, i.e. to those able to accumulatesurplus value from their ownership of productive‘natural capital assets’. Value is defined in terms ofcontribution to income under conditions of privateownership, echoing a situation in which exchangevalues that can be traded require circumstances ofprivate property.11 Such value is thus directed towardsthe maintenance of a particular system of political

economy that rewards the owners of land and naturalresources as income-generating assets. In doing so,‘the forward-driving force of capital’ is replenished, soas to feed ‘the conditions of its own continuing’.12

To put this another way, the value of nature-as-natural-capital is being signalled in these accounts,but only in terms of the value of ‘non-produced assets’to industry, measured ultimately in terms of ‘rent’ tothe owners of productive natural capital assets(combined with a discounting of the future values offlows from these assets) (pp.6, 20). The newinformation these ‘natural capital accounts’ add tomore conventional national accounts seems simply tobe a disaggregation of the amount of income that canbe attributed solely to elements of ‘environmentalservice’-producing ‘natural capital’.

In other words, the accounts in the table abovedemonstrate the market value of ‘natural capital’ toindustry, not the value of nature’s materiality in itself,or the non-industrialised or non-commercial values ofnature held by people less directly connected with theprofit-generating value of ‘natural capital’. The latterpoint is indicated clearly for the figures reported forenvironmental services for recreation. The naturalcapital accounts for ‘opening stock’ values for 2007and 2014 report a decline in value for ‘recreationalservices’ based on the monetary value of admissionfees, parking and transport tickets, an observationthat would suggest a decline in the relative value ofthese ‘services’ (p.18). In the same period, however,both the number of visits and the amount of timespent ‘in the natural environment’ reportedlyincreased, suggesting that in actuality the non-

Balance sheet of UK natural assets (R = renewable, non-R = non-renewable) bycategory of environmental service type showing values for three years ofaccounts. Values calculated in £ billion at 2014 prices.

Environmentalservice type

Provisioning:

Regulating:

Cultural:

TOTAL

Natural Capital assetcategory

Agricultural biomass (R)Fish (R)Timber (R)Water (R)Minerals (non-R)Oil, gas and coal (non-R)Wind energy (R)Hydropower (R)Carbon sequestration (R)Air pollution removal (by vegetation) (R)Recreation (R)

Opening stock,end 2007

14.97.93.331.91.6190.2(end 2010) 11.0(end 2010) 10.251.1(end 2006) 129.0

213.5

663.6

Opening stock,end 2014

32.49.14.229.23.722.645.39.260.7114.2

166.3

499.3

Asset value2018

88.711.2635.49.7140.121.2

103.232.7

302.1

750.1

Overalldirection ofchange

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economic value of simply being in the naturalenvironment remained highly valued (p.19). The usehere of travel-cost valuations to generate proxy valuesfor the ‘recreation services’ provided by the naturalenvironment thus misses the point regarding peoples’valuing of access to such spaces.13 In the 2018accounts, the value recorded for ‘recreation’ ismarkedly higher, apparently because of the laterdecision to simply double the ‘asset life assumption’ of‘renewable services’ from 50 to 100 years.14

Value derives from broader marketcontexts rather than materiality ofnatural capital stocksAlso of interest are the reasons provided in the ONSreports for changes in natural capital asset values.These reasons seem rarely to have anything to do withthe ‘stock levels’, i.e. the materiality of the ‘naturalcapital stocks’ themselves. Changes in the value of oiland gas, for example, is explained by high volatility inbroader market prices for these resources (pp.7-8).15

A ‘downward trend in ecosystem service values’ forpublic water supply early in the accounting period isexplained as related to higher built capital (physicalinfrastructure) depreciation costs as well as industry-wide adjustments in taxes and subsidies; a later rise invalue was associated with industry-wide priceincreases (p.11). Similarly, with regard to trees valuedin terms of timber, the only source of accounted valueis the market price paid for produced timber (i.e.stumpage price) (p.10).

Overall, then, the figures in this balance sheet for UKnatural capital say almost nothing about the conditionof the natures from which the calculated values arederived. Indeed, the figures seem strangelydisconnected from the interconnected materialities ofthe ‘stocks’ themselves. They are connected insteadwith the broader volatility of prices on globalcommodity markets, changing industry costs ofproduction (as, for example, for the service category of‘fish’), and occasionally with political pressures (as inthe case of peat – classed in the accounts as a minedmineral – for which environmental concerns overextraction ‘mean that no new planning permissionsfor peat are granted’) (p.8). The causes for change inasset values summarised in the balance sheet, then,indicate the significance of broader (market) contextsthat care little for the materiality of ‘stocks’ themselves.As such, these ‘natural capital asset values’ appear toprovide little indication of the present and futurematerial state of the natures thus valued.

New ‘externalities’, discounting thefuture and dynamicsThe 2016 ONS report explicitly excludes more‘environmental service’ categories (n=17) than itincludes (n=13) in its list of calculated asset values.Excluded environmental services range from ‘wildanimals’ to ‘flood, erosion and landslide protection’ to

‘value placed on nature simply existing’ (p.5). Currentlythese identified service categories are unvalued, i.e.they remain external to, UK natural capital accounts.The broader point here is that attempts to cost in, i.e.to define and ‘territorialise’, un-costed externalitiesalways create new boundaries beyond which lieunvalued externalities or ‘overflows’.16 This is in thenature of the partitioning, numbering and calculativetechnologies that accompany economisationpractices. It means that new ‘disvalues’ are created,even as previously un-economised natures arebrought into the economic fold of value via naturalcapital accounts.

One aspect of natures-beyond-the-human (capturedas ‘natural capital’) which appears consistentlyundervalued is the dynamism of their futuretrajectories. As with projections of counterfactualscenarios in carbon offset additionality calculations,17

future flows of environmental services from naturalcapital stocks are unknowable since they areunobserved. Natural capital accounts are built on theassumption ‘that the current [service] flow… isconstant over the asset life’, leading to a ‘defaultassumption… that the value of the services isconstant over time’ (p.26). Following ‘extensive review’the ONS ‘ecosystem service accounts’ published in2018 doubled the ‘asset life assumption’ for renewableservices from 50 to 100,18 contributing somewhatarbitrarily to the rise in the 2018 natural capital assetvalues for those assets providing renewableecosystem service categories.

This assumption of future constancy seems todisregard multiple sources of potential variability inservice flow. Ecosystems giving rise to ‘environmentalservices’ are complex and metastable: they ‘canundergo rapid transitions’ that may beunpredictable.19 Renewable ‘environmental servicecategories’ are not closed biotic systems, as indeed isindicated by some of the explanations for changes incategory values in the above balance sheet. Airpollution removal by vegetation, for example, isexplained as due to ‘dry’ and ‘wet’ day conditions(p.16), themselves associated with broader weatherconditions and presumably shaped by anthropogenicclimate change. This observation becomes critical ifwe take seriously the present context in whichbroader climate change may make a fiction of theassumed future constancy of ‘environmental serviceflow’.

Natural capital fictions?The published UK natural capital accounts consideredhere suggest that the ‘value’ of environmental serviceflows from natural capital assets is derived frombroader economic contexts, rather than the materialstate and visibility of the natures constituting theseassets. To return to the opening quote, they constitutea method for enrolling new nature ‘externalities’ into a

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‘balance sheet’ coherent to capital(ism), but perhapsobstructive to the system change arguably requiredfor the sustenance of future environmental health anddiversity. Given deepening inequalities associatedwith the late capitalist era20, connections at differentscales between deepening societal inequality andenvironmental damage21, and empirical researchdemonstrating limited conservation effectiveness ofmonetary valuation in environmental management,22

caution is called for in celebrating the environmentalcare potential of ‘valuing nature’ in natural capitalaccounts.

Sian Sullivan is Professor of Environment and Culture inthe School of Humanities at Bath Spa University.

Endnotes1 Paul Hawken, “Foreword”, in Prugh, T., with

Costanza, R., Cumberland, J.H., Daly, H.E.,Goodland, R. and Norgaard, R.B. (eds) NaturalCapital and Human Survival, 2nd Edition (Lewis,1999), p. xiii.

2 Sian Sullivan “Making nature investable: fromlegibility to leverageability in fabricating ‘nature’ as‘natural capital’” (2018) Science and TechnologyStudies 31(3): 47-76, and references therein.

3 See discussion in Markus J. Milne, “Downsizing Reg(me and you)! Addressing the ‘real’ sustainabilityagenda at work and home”, in Gray, R.H. andGuthrie, J. (eds) Social Accounting, Mega Accountingand Beyond: Festschrift in Honour of Martin (Reg)Matthews (CESAR 2007); also Rob Gray and J.Bebbington (2001), Accounting for the Environment,2nd Edition, Sage, London.

4 I have drawn here on elements of Sian Sullivan andMichael Hannis “‘Mathematics maybe, but notmoney’: on balance sheets, numbers and nature inecological accounting” (2017) Accounting, Auditingand Accountability Journal 30(7): 1459-1480. Thankyou to Mike Hannis for also commenting on anearlier draft.

5 ONS, UK Natural Capital: Monetary Estimates, 2016,Office of National Statistics,https://www.ons.gov.uk/economy/environmentalaccounts/bulletins/uknaturalcapital/monetaryestimates2016/pdf (all websites last accessed 19November 2019, unless otherwise stated)

6 ONS, UK Natural Capital: Ecosystem ServiceAccounts, 1997-2015, Office of National Statistics,https://www.ons.gov.uk/economy/environmentalaccounts/bulletins/uknaturalcapital/ecosystemserviceaccounts1997to2015

7 https://www.gov.uk/government/groups/natural-capital-committee

8 https://seea.un.org/9 https://www.wavespartnership.org/10 http://www.teebweb.org/

11 S.C. Farber, R. Costanza and M.A. Wilson “Economicand ecological concepts for valuing ecosystemservices” (2002) Ecological Economics 41(3): 375-392, 388; Colin T. Reid “Between priceless andworthless: challenges in using market mechanismsfor conserving biodiversity” (2012) TransnationalEnvironmental Law 2(2): 217-233.

12 Brian Massumi (2015) Ontopower: War, Powers, andthe State of Perception. Duke University Press,London, 72.

13 To be fair, this point is discussed to some extent inONS, 2016 op. cit. 18-19.

14 ONS, 2018, op. cit., 17.15 Also Ibid., 8.16 For fuller discussion of this point see Sarah

Bracking, Aurora Fredriksen, Sian Sullivan andPhilip Woodhouse, “Value(s) and valuation indevelopment, conservation and environment”, inSarah Bracking, Aurora Fredriksen, Sian Sullivanand Philip Woodhouse (eds) Valuing Development,Environment and Conservation: Creating Values thatMatter (Routledge, 2018).

17 V. Ehrenstein and Fabian Muniesa “The conditionalsink: counterfactual display in the valuation of acarbon offsetting restoration project” (2013)Valuation Studies 1(2): 161-188.

18 ONS, 2018 op. cit., 17. 19 K.E. Limburg, R.V. O’Neill, R. Costanza and S. Farber,

“Complex systems and valuation” (2002) EcologicalEconomics 41(3): 409-420, 411.

20 Thomas Piketty (2014) Capital in the Twenty-FirstCentury. Cambridge, MA: Harvard University Press.

21 For example, T.G. Holland, G.D. Peterson and A.Gonsalez, “A cross-national analysis of howeconomic inequality predicts biodiversity loss”(2009) Conservation Biology 23(5): 1304-1313.

22 For example, J. Temel, Aled Jones, N. Jones, et al.,“Limits of monetization in protecting ecosystemservices” (2018) Conservation Biology 32: 1048–1062.

27 elaw November/December 2019

Matters in practiceIn times of war the law falls silent1John Bates, Old Square Chambers

At a glance• Consideration should be given in the current

Environment Bill to environmental protection intimes of war or natural disaster.

• Environmental principles should set out the basison which the environment will be protected insuch times.

• The role of the Office for Environmental Protection(OEP) in such circumstances should be specified.

IntroductionImagine the Daily Express is right. One of the hugeasteroids it constantly threatens its readers withactually hits. Alternatively imagine that sometime inthe future we become involved in a war that directlythreatens the United Kingdom with invasion. In suchtimes Lord Pearce’s observation in Conway v Rimmer 2

has force:

In theory any general legal definition of thebalance between individual justice in one scaleand the safety and well-being of the state in theother scale, should be unaffected by thedangerous times in which it is uttered. But inpractice the flame of individual right and justicemust burn more palely when it is ringed by themore dramatic light of bombed buildings …..In thedebate on the Civil Contingencies Act 2004Parliament sought to balance the necessities ofdealing with emergencies – which include war3 –with human rights. Section 23(5) of the Actprovides that emergency regulations may notamend the Human Rights Act 1998. However, evenif, in a new Defence of the Realm Act hastilyenacted after the crisis arises, that provision is notrepealed, it provides little protection for theenvironment.

Generally, when an emergency occurs the instinct ofgovernment is repressive. As the late US SupremeCourt Justice, William J Brennan, Jr said:

…each crisis has manifested the same set ofproblems. The sudden national fervor causespeople to exaggerate the security risks posed byallowing individuals to exercise their civil libertiesand to become willing “temporarily” to sacrificeliberties as part of the war effort. The peacetimejurisprudence of civil liberties leaves the nationwithout a tradition of, or detailed theoretical basisfor, sustaining civil liberties against particularizedsecurity concerns. The nation’s procedures provetoo slow to resolve any issue before the time ofcalamity has passed….4

If that is the case for civil liberties it is even more likely toapply to environmental protection regimes. The currentversion of the Environment Bill (the Bill)5 provides inclause 18 (3) (a) that the proposed duty to have regard tothe policy statement on environmental principles ‘doesnot apply to policy.. relating to the armed forces, defenceor national security.’ In a crisis pretty much everythingcould relate to defence or national security. As the armedforces and national security are also excluded matters inthe definition of ‘environmental law’6 no complaint couldbe made in respect of any breach of such law made inthe interests of national security.

To paraphrase the words of Brennan J in a crisis wemay well become willing ‘temporarily’ to sacrificeenvironmental protection as part of the war effort. Forexample, there becomes an urgent need tomanufacture more munitions. Emergency regulations,made under section 22 of the Civil Contingencies Act2004, provide for the requisitioning of buildings.7 Alarge building is requisitioned for this purpose andwork is started to convert it to a munitions factory. Noenvironmental impact assessment is required as theSecretary of State has issued a direction to this effect.8

Indeed, the emergency regulations may disapplyplanning legislation to specified projects such as thedevelopment of armaments factories.9

The factory when in operation will emit substances tothe air and discharge effluent to a river which flowsthrough a nearby special protection area. It willoperate 24 hours a day, seven days a week; generatingconsiderable noise and traffic. Will environmentalregulation also be disapplied to aid the war effort? Thearguments for doing so would include the need to getthe factory up and running as soon as possible, thatthe harm to the environment will only last for theduration of the crisis and can be remediatedafterwards and that in any event the strongestprotection for the environment is for our country towin the war. Protestors against such a move will bedismissed as unpatriotic and branded in somesections of the media as ‘enemies of the people.’

Nevertheless, there is the opportunity in the Bill totake steps to minimize environmental damage as aresult of war, disasters or emergencies. It is probablyunrealistic to assume that the full range ofenvironmental regulation would apply to themunitions factory in the example above. However,principles can be adopted to ensure respect for thenatural environment, consideration given to the roleof the OEP in such circumstances and also access toenvironmental information.

28 elaw November/December 2019

PrinciplesThe International Law Commission is developingproposals on the protection of the environment inrelation to armed conflicts. One of the draft principles is:

Draft principle 8.General protection of the natural environment duringarmed conflict

• The natural environment shall be respected andprotected in accordance with applicableinternational law and, in particular, the law ofarmed conflict.

• Care shall be taken to protect the naturalenvironment against widespread, long-term andsevere damage.

• No part of the natural environment may beattacked, unless it has become a militaryobjective.’10

Draft principle 8.3 is probably not suitable forinclusion in the Bill. It would need a definition of‘military objective’ and opinions differ on that.However, two new principles could be inserted inclause 16 (5) of the Bill:

(f ) the principle that during a war or disaster,emergency regulations made under the CivilContingencies Act 2004 or other enactments shallprotect the natural environment in accordancewith applicable international environmental law.

(g) the principle that during a war or disaster care shallbe taken to protect the natural environmentagainst widespread, long-term and severe damageand to preserve sensitive areas.

For these purposes, in the definition section, ‘war’would be defined in the same way as in the CivilContingencies Act 2004 to include armed conflict11.‘Disaster’ would be defined as in the Model Act for theFacilitation and Regulation of International DisasterRelief and International Recovery Assistance namely ‘aserious disruption of the functioning of society, whichposes a significant, widespread threat to human life,health, property or the environment, whether arisingfrom accident, nature, or human activity, whetherdeveloping suddenly or as the result of long-termprocesses, but excluding armed conflict.’12 ‘Sensitiveareas’ would be as defined in regulation 2 (1) of theEnvironmental Impact Assessment Regulations 2017.13

There would also have to be amendments to clauses18(3)(a) and 40(3)(b) of the Bill to state that ‘Save asprovided in clauses 16(5)(f ) and 16(5)(g), the armedforces, defence or national security’ as relevant.

The Office for EnvironmentalProtection The OEP would have a crucial role to play in suchcircumstances. Access to environmental information islikely to be limited in respect of facilities like themunitions factory. Even information about its locationcould cost the lives of all who work there. Thus, publicregisters such as those under Part 5 of theEnvironmental Permitting Regulations 201614 are likelyto have relevant information excluded from them.However, the Bill should provide for informationexcluded on grounds of national security orconfidentiality to be sent to the OEP.

The munitions factory discharges effluent thatdiscolours the river. A complaint is made to the OEP.Complaints can only be made about a ‘publicauthority.’ The public authority could be the ministryoverseeing the factory or the regulator. Theenforcement provisions of the Bill could apply in sucha situation, the only amendment being needed is inclause 38 as a new clause 38 (8) ‘The OEP may notdisclose information that would adversely affect thearmed forces, defence or national security.’

The factory wants to abstract water. More water islikely to be needed for agriculture as we struggle tobecome food sufficient. Competition for new supplieswill be fierce. Under section 33A of the WaterResources Act 1991 the Secretary of State can makeregulations to provide new exemptions to theabstraction licensing regime. It may be useful if theOEP has to be consulted before such regulations aremade, even in times of national emergency. Similaramendments would be needed to otherenvironmental regulatory regimes to ensure that theOEP has a role in decision making in times of crisis.

ConclusionWe tend not to think about war or disaster; eventhough the Daily Express constantly reminds us oftheir approach. However, it could happen. If disastercomes on us, suddenly much environmentalprotection is likely to be withdrawn in the urgency ofthe situation. We do have an opportunity in the Bill toreflect on the possibility and to ensure that theenvironment will still be protected in the light of LordPearce’s bombed buildings.

John Bates is a practising barrister at Old SquareChambers and has specialised in environmental lawsince 1985. He is the author of the loose-leaf Water andDrainage Law. He was chair of UKELA 1991 – 1993.

29 elaw November/December 2019

Endnotes1 Cicero Pro Milone “Silent enim lēgēs inter arma.”2 [1968] AC 9103 Civil Contingencies Act 2004, s.19(1)(c)4 The Quest to Develop a Jurisprudence of Civil

Liberties in Times of Security Crisis, Address to theLaw School of Hebrew University, Jerusalem (Dec.22, 1987), –http://www.capaa.wa.gov/pdf/brennan/pdf.

5 As published 15 October 20196 Draft Environment (Principles and Governance) Bill

clause 40 (3) (b)7 Civil Contingencies Act 2004, s. 22 (3) (b).8 T&CP (Environmental Impact Assessment)

Regulations 2017, reg. 63(1)9 Civil Contingencies Act 2004, s. 22 (3) (j).10 UN Doc A/CN.4/L.870/Rev.1 (26 July 2016)11 Civil Contingencies Act 2004 s. 31(1)12 https://www.ifrc.org/docs/IDRL/MODEL%20ACT%

20ENGLISH.pdf13 SI 2017/57114 SI 2016/1154

30 elaw November/December 2019

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CALL FORPROPOSALS: BridgingLanguage andScholarship (BLS)Vernon Press invites original book proposals andtranslation proposals for previously published books(from English to Spanish or Spanish to English), as partof our Bridging Language and Scholarship (BLS)initiative. We welcome proposals for both editedvolumes and single-author books in a range ofdisciplines.

We accept manuscripts written in either English orSpanish, as well as bilingual edited volumes written inboth English and Spanish. Specifically, the call is opento the following categories of scholarly manuscripts:

31 elaw November/December 2019

• Original English-language manuscripts: to beconsidered for publication in English (subject topeer review) and subsequent to publication,translated into and published in Spanish (subjectto the availability of funding or a fee-waiver for alimited number of manuscripts of exceptionalquality).

• Original Spanish-language manuscripts: to beconsidered for publication in Spanish (subject topeer review) and subsequent to publication,translated into and published in Spanish (subjectto the availability of funding or a fee-waiver for alimited number of manuscripts of exceptionalquality).

• Previously published manuscripts in English forwhich the authors maintain the rights to a Spanishtranslation: to be considered for translation andpublication in Spanish (subject to peer review andto the availability of funding or a fee-waiver for alimited number of manuscripts of exceptionalquality).

• Previously published manuscripts in Spanish forwhich the authors maintain the rights to an Englishtranslation: to be considered for translation andpublication in English (subject to peer review andto the availability of funding or a fee-waiver for alimited number of manuscripts of exceptionalquality).

• Bi-lingual and/or translingual manuscripts writtenin English and Spanish: to be considered forsimultaneous publication in the US and Spain(subject to peer review).

The comprehensive scope of this call includes all ofour current series, as well as any other works which aresituated within the sphere of the social sciences andhumanities.

For more information, or to submit a proposal, contactthe editors at submissions@vernonpress.com

More info athttps://vernonpress.com/proposal/54/a434c41d4b3ba5ab65c7775a3037fd9f.

Book reviewsThe e-law editors are regularly sent book lists byvarious publishing houses which may appeal toUKELA members keen to write a review. If you areinterested in contributing a book review to a futureedition of e-law, but would first like some guidance orsuggestions, please drop us a line.

UK Environmental Law AssociationelawThe editorial team is looking for quality articles, news and views for thenext edition due out in February 2020. If you would like to make acontribution, please email elaw@ukela.org by 22 January 2020.

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