Environment (Wales) Bill: A Legal Perspective Annabel Graham Paul, Barrister

Sustainable Management of Natural Resources Cl 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, and c)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 listed e.g. landscapes and seascapes, habitat. Explanatory Memorandum states that the definition does not include scales at which individual components 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 provide and, in so doing, meet the needs of present generations of people without compromising the ability of future generations to meet their needs.” 1 st part seeks to implement the ‘ecosystem approach’ in the UN Convention on Biological Diversity (1992). 2 nd part tags on the Wellbeing of Future Generations Act sustainability principle – does this add anything at all? CBD defines ecosystems as: “a dynamic complex of plant, animal and microorganisms and 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 sustainable management (cl 4) Explanatory Memorandum: “broad scope that goes beyond ecosystems themselves to encompass social, cultural and economic factors that depend on the services ecosystems provide.” Benefits include provision of services (e.g. food), climate regulation and flood 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 renewable energy schemes and detracting from aesthetic experience of the landscape.

Principles of Sustainable Management of Natural Resources a)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 ecosystems f)Take account of the short, medium and long term consequences of actions g)Take account of the resilience of ecosystems, in particular the following aspects – 1)diversity between and within ecosystems 2)the connections between and within ecosystems 3)the scale of ecosystems 4)the condition of ecosystems 5)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 of natural resources in relation to Wales and apply the principles of sustainable management of natural resources, in the exercise of its functions, so far as consistent 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 to Wales, and in so doing promote the resilience of ecosystems, so far as consistent with the proper exercise of those functions”. No definition of biodiversity (Explanatory Memo refers to the CBD definition: see para 56). Stronger than existing duty 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 the duty must be exercised “in a way that improves the key aspects that support biological diversity and the resilience of ecosystems. The new duty is therefore integrated within the framework established under the Bill for the sustainable 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) ctd Mandatory 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 the current state of natural resources (within 4 months of section coming into force). Makes available the information needed for WMs to set priorities for action at the national level. Explanatory Memo says that reporting should “reflect the interdependence between environmental factors with economic and social aspects as reflected by the wider approach to natural resource management”.

National Natural Resources Policy (cl 9) WMs prepare and publish a document setting out their general and specific policies for contributing to achieving sustainable management of natural resources in relation to Wales (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 the purpose 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 an area statement and encourage others to take such steps. NB No duty on WMs to implement area statements although they are supposed to be facilitating 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 natural resources report and national natural resources policy. No time specified for production of area statements at all. NRW can ask other public bodies to provide information or other assistance in preparing area statements (cl 14). Pubic bodies must oblige unless it is incompatible with their own duties or would otherwise have an adverse effect on the exercise of the public body’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 as appear to them to be reasonably practicable to address the matters specified 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 mandatory order. No ability for WMs to direct themselves to address area statements.