Environment (Wales) Bill: A Legal Perspective

Annabel Graham Paul, Barrister

Sustainable Management of Natural ResourcesCl 3: “Sustainable management of natural resources” means -

a) using natural resources in a way and at a rate that promotes achievement of the objective in subsection (2),

b) taking other action that promotes achievement of that objective, andc) not taking action that hinders achievement of that objective.

Inclusive list of “natural resources” in cl. 2 (“natural resources” includes (but is not limited to) – (a)animals, plants and other organisms etc.) – potential to argue duties extend beyond features listede.g. landscapes and seascapes, habitat. Explanatory Memorandum states that the definition does not include scales at which individualcomponents interact or co-exist e.g. habitat or landscape, however unclear from the Bill.

The objective“To maintain and enhance the resilience of ecosystems and the benefits they provideand, in so doing, meet the needs of present generations of people without compromisingthe ability of future generations to meet their needs.” 1st part seeks to implement the ‘ecosystem approach’ in the UN Convention on BiologicalDiversity (1992). 2nd part tags on the Wellbeing of Future Generations Act sustainability principle – doesthis add anything at all? CBD defines ecosystems as: “a dynamic complex of plant, animal and microorganismsand their non-living environment interacting as a functional unit”. Not defined in the Bill.

The objective ctd‘Resilience’ of ecosystems appears to be explained later under principles of sustainablemanagement (cl 4) Explanatory Memorandum: “broad scope that goes beyond ecosystems themselves toencompass social, cultural and economic factors that depend on the services ecosystemsprovide.” Benefits include provision of services (e.g. food), climate regulation andflood alleviation and cultural benefits e.g. recreation, tourism and aesthetic experience. Purposive approach to interpretation – objective potentially very wide. Tension between e.g. enhancing climate regulation through the provision of renewableenergy schemes and detracting from aesthetic experience of the landscape.

Principles of Sustainable Management of Natural Resourcesa) Manage adaptively, by planning, monitoring and reviewing action – any requirement to act following review?b) Consider the appropriate spatial scale for action – how is appropriate defined e.g. can public authority

resources be relevant or is it ‘appropriate’ purely by reference to the objective?c) Promote and engage in collaboration and co-operation – with whom? Public? Other public bodies? Cross

border working? Explanatory Memorandum refers to engagement with stakeholders and a variety of civil society organisations and local communities (para 55)

d) Take account of all relevant evidence and gather evidence in respect of uncertainties – assumes evidence will be gathered in respect of certainties, difficulties assessing extent of evidence gathering possible vis-à-vis resources / state of knowledge

e) Take account of the benefits and intrinsic value of natural resources and ecosystemsf) Take account of the short, medium and long term consequences of actionsg) Take account of the resilience of ecosystems, in particular the following aspects –

1) diversity between and within ecosystems2) the connections between and within ecosystems3) the scale of ecosystems4) the condition of ecosystems5) the adaptability of ecosystems

Mechanisms to Deliver the Sustainable Management Objective

• Revised purpose of NRW• State of Natural Resources Report (SoNaRR)• National Natural Resources Policy (NNRP)• Area statements• The purpose of an experimental scheme

NRW’s Purpose (cl 5)

NRW “must seek to achieve sustainable management ofnatural resources in relation to Wales and apply theprinciples of sustainable management of naturalresources, in the exercise of its functions, so far asconsistent with their proper exercise”.

Biodiversity and Resilience of Ecosystems Duty (cl 6)A public authority “must seek to maintain and enhance biodiversity in the exercise of its functions in relation toWales, and in so doing promote the resilience of ecosystems, so far as consistent with the proper exercise of thosefunctions”. No definition of biodiversity (Explanatory Memo refers to the CBD definition: see para 56). Stronger than existingduty to “have regard to the purpose of conserving” biodiversity (s. 40 NERC Act 2006) NB Much narrower duty than NRW’s re sustainable management of natural resources. Explanatory Memo says theduty must be exercised “in a way that improves the key aspects that support biological diversity and the resilienceof ecosystems. The new duty is therefore integrated within the framework established under the Bill for thesustainable management of natural resources”. Mandatory material considerations: • The resilience of ecosystems• UN Environmental Programme Convention on Biological Diversity (1992) in respect of WMs, First Minister,

Counsel General, Minister of the Crown, government department

Biodiversity and Resilience of Ecosystems Duty (cl 6) ctdMandatory actions: • Publish a report on what it has done to comply with the duty before end of 2019 and before end

of every third year thereafter (intended to tie in with wellbeing reports)

• WMs publish a list of living organisms and types of habitat which are of principal importance for the purposes of maintaining and enhancing biodiversity

• WMs must take such steps as appear to them to be reasonably practicable to maintain and

enhance features on list • WMs must encourage other to take such steps – how? No duty on other public authorities even

to have regard to the list

State of Natural Resources Report (cl 8)Evidence-base published by NRW to provide information on thecurrent state of natural resources (within 4 months of sectioncoming into force). Makes available the information needed forWMs to set priorities for action at the national level. Explanatory Memo says that reporting should “reflect theinterdependence between environmental factors with economicand social aspects as reflected by the wider approach to naturalresource management”.

National Natural Resources Policy (cl 9)

WMs prepare and publish a document setting out their general and specific policies forcontributing to achieving sustainable management of natural resources in relation toWales (within 10 months of law coming into force) Policy must set out: 1) What WMs consider to be the key priorities and opportunities for sustainable

management of natural resources what they consider should be done in relation to climate change.

2) May include anything in the policy which WMs consider relevant to achieving sustainable management of natural resources in relation to Wales.

National Natural Resources Policy (cl 9)

Must apply the principles of sustainable management of natural resources.Must have regard to the SoNRR No duty to consult on contents of policy, even with NRW Duties to apply policy weak• WMs must take such steps as appear to them to be reasonably practicable

to implement the policy and• WMs must encourage others to take such steps.

Area Statements (cl 10)NRW prepare and publish for the areas of Wales that it considers appropriate for thepurpose of facilitating the implementation of the national natural resources policy(although NRW have no duty to implement the national policy – see cl 9) Area statement must• Specify the priorities, risks and opportunities for sustainable management of natural

resources which NRW considers need to be addressed in the area and• State how NRW proposes to address them. NRW must take such steps as appear to it to be reasonably practicable to implement anarea statement and encourage others to take such steps. NB No duty on WMs to implement area statements although they are supposed to befacilitating the implementation of the NNRP

Area Statements (cl 10)

No duty to consult on area statements, even with WMs NB Power in cl 24 to make regulations to change timing for production of state of naturalresources report and national natural resources policy. No time specified for productionof area statements at all. NRW can ask other public bodies to provide information or other assistance in preparingarea statements (cl 14). Pubic bodies must oblige unless it is incompatible with theirown duties or would otherwise have an adverse effect on the exercise of the publicbody’s functions – can this include financial adverse effect?

Directions to Implement Area Statements (cl 12)WMs may direct a public body (NB wide definition) to take such steps asappear to them to be reasonably practicable to address the mattersspecified in an area statement. Who is ‘them’? WMs or the public body – drafting ambiguity Public body is consulted with prior to direction – what about others e.g.affected landowners? Direction binding and enforceable by mandatoryorder. No ability for WMs to direct themselves to address area statements.