The Importance of Public Participation in Environmental Decision Making: The UK Environment Bill

Jeremy Ogilvie-Harris is an LLM candidate at UCL and a paralegal at the Hackney Community Law Centre. He is the winner of a GGI student essay competition on biodiversity and climate change.

Biodiverse ecosystems provide a range of material and non-material services to humans. Calculating the value of these services is inherently difficult because they are the result of extremely complex processes that can be considered from different ethical perspectives [1,2]. This essay argues that, to tackle the biodiversity crisis while achieving the UN Sustainable Development Goals of reducing inequality (‘SDG 10’) and building just institutions (‘SDG 16’), the UK Environment Bill (‘the Bill’) should facilitate a deliberative process that allows the public to meaningfully participate in decisions about biodiversity.

The Bill, which is currently making its way through Parliament, will establish a new framework for environmental protection in the UK, following exit from the EU. Among other provisions, the Bill sets out an obligation to demonstrate a biodiversity net gain in development planning [3]. Before development begins, applicants for planning permission are required to provide a biodiversity gain plan, which specifies the pre- and post-development biodiversity value of a site, what steps will be taken to conserve on-site biodiversity, and any offsite biodiversity gain to compensate for loss of on-site value [4]. This may involve ‘relocating’ biodiversity to a different area (known as ‘offsetting’). Biodiversity gains and losses are calculated using the Biodiversity Metric 2.0 (‘the Metric’) [5,6]. For pre-development value, the Metric takes into account the size of a habitat, its distinctiveness, condition, strategic significance, and connectivity [7]. For post-development value, it additionally considers a number of risks associated with interventions to create, restore or enhance habitats [8]. Data collection is undertaken by the developers through a series of site visits [9]. It must then be approved by the local planning authority. As the biodiversity gain plan will be produced after planning consent is granted, there is no obligation to consult the public on its content (whereas there would be an obligation to consult pre-application and under the environmental impact assessment process) [10, 11, 12].

 A variety of different knowledge claims inform the planning process [13]. The Metric combines “technical knowledge claims” with “prior institutional knowledge claims”. Technical knowledge claims are “technically framed contributions, using consistent language and benchmarks, and self-consciously aspiring to objectivity” produced by experts [14]. In the case of the Metric, this includes the assessment of the ”size”, ”condition”, ”connectivity” and “distinctiveness” of a site. Prior institutional knowledge claims reflect existing decisions on the value or status of a particular landscape or site, e.g. designations of species or habitats as protected (given their ”distinctiveness” and/or ”strategic significance”) [15]. Notably, the Metric (still) does not consider the social, cultural, or public health value of biodiversity [16].

Fisher argues that the Bill, generally, promotes a “highly technical” vision “in which public reason is deemphasised” [17]. Regarding biodiversity, there is no obligation to consult the public on biodiversity gain plans and the Metric requires technical assessment of value which excludes lay participation. Technical knowledge claims are themselves socially constructed and value-laden [18]. However, while such ‘facts’ are usually uncertain and contested, without the requisite expertise or resources to instruct experts, lay participants may not be able to challenge them [19, 20]. This exclusion from the process risks perpetuating and exacerbating pre-existing inequalities, undermining SDG 10, and it also runs counter to the aims of SDG 16 on building strong, inclusive and just institutions.

Biodiversity has social, economic, cultural, and public health as well as ecological value [21, 22]. While offsetting may not have an ecological ‘net’ impact, it can deprive local communities of, for instance, access to green space and associated health benefits. Such benefits are often already less accessible to disadvantaged urban communities [23]. Accordingly, decisions about biodiversity contain important socio-political questions of distribution. It is through “lay knowledge claims” and public participation that the information about these implications can and should be obtained. Indeed, public participation is said to improve substantive decision-making and provide democratic legitimacy to the planning process [24, 25].

Parliament should consider amending the Bill to “ensure responsive, inclusive, participatory and representative decision-making at all levels” [26, 27]. This could be achieved by requiring biodiversity gain plans to be produced pre-application or otherwise consulted on; and a deliberative process in which the public actively engages in discussion with applicants for planning permission, experts and decision-makers [28]. This may produce innovative and democratic responses to the biodiversity crisis which work with nature, such as the creation of green infrastructure. There is already an obligation on planning authorities to consider conserving biodiversity [29]. A further obligation could be placed on decision-makers to set out in their decision an explanation of how socio-cultural and socio-political issues, and biodiversity-enhancing alternatives were taken into account [30]. These amendments would allow the public to influence decisions which will affect them and prevent socio-political questions from being resolved through a technical, exclusory process.

References:

1. Stephanie Wray, ‘Biodiversity: The Whole Picture’, Transform (Institute of Environmental Management and Assessment, Dec/Jan 2020/21) 26–28.
2. Elizabeth Fisher, Bettina Lange and Eloise Scotford, Environmental Law (2nd edn, Oxford University Press 2019) 45–50.
3. Environment Bill HC Bill (2019-2021, 2021-2022) cl 92.
4. Environment Bill (n 3) sch 14.
5. Ibid.
6. Natural England, The Biodiversity Metric 2.0: User Guide Beta Version, (JP029, 2019).
7. Natural England (n 5) 13.
8. Natural England (n 5) 14.
9. Natural England (n 5) 21-23.
10. Environment Bill (n 3) sch 14.
11. Town and Country Planning Act 1990, s 61W.
12. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017, reg. 4.
13. Maria Lee, ‘Landscape and Knowledge in wind energy planning’ (2017) 37(1) LS 3–24.
14. Lee (n 11) 16
15. Natural England (n 5) 13.
16. See Oliver Taherzadeh and Peter Howley ‘No net loss of what, for whom?: stakeholder perspectives to Biodiversity Offsetting in England’ (2018) 20 Environment, Development and Sustainability 1807–1830, 1822.
17. Elizabeth Fisher, ‘Executive Environmental Law’ (2019) 83(1) MLR, 83(1), 163–189, 183.
18. Maria Lee, Lucy Natarajan, Simon Lock, and Yvonne Rydin, ‘Techniques of Knowing in Administration: Co production, Models, and Conservation Law’ (2018) 45(3) JLS 427–456.
19. Lee (n 11) 18.
20. Chiara Armeni and Maria Lee, ‘Participation in a time of climate crisis’, forthcoming in Journal of Legal Studies 2021 1-28, 15-19.
21. Wray (n 1) 26–28.
22. Andrey Egorov, Pierpaolo Mudu, Matthias Braubach and Marco Martuzzi, ‘Urban green spaces and health: A review of evidence’ (WHO Europe Report, 2016) <https://www.euro.who.int/en/health-topics/environment-and-health/urban-h... accessed 5 June 2021.
23. Selena Gray and Alan Kellas, ‘Covid-19 has highlighted the inadequate, and unequal, access to high quality green spaces’ (BMJ Opinion, 3 July 2020) <https://blogs.bmj.com/bmj/2020/07/03/covid-19-has-highlighted-the-inadeq... accessed 12 May 2021.
24. Chiara Armeni, ‘Participation in Environmental Decision-making: Reflecting on Planning and Community Benefits for Major Wind Farms’ (2016) 28 Journal of Environmental Law 415–441, 418–421.
25. Armeni and Lee (no 19) 14-20.
26. United Nations, ‘Sustainable Development Goal: Target 16.7’ (United Nations, 20 April 2018) <https://sdgs.un.org/goals/goal16> accessed 12 May 2021.
27. On the role of law in facilitating public participation, see Armeni and Lee (no 19) 20-27.
28. For example, see Article 11 Council and Parliament Regulation (EU) 2018/1999 of 21 December 2018 on the Governance of the Energy Union and Climate Action OJ L 328/1.
29. Natural Environment and Rural Communities Act 2006, s 40. 
30. For example, see Planning Act 2008 s 5(8).