Everyone should have a right to a healthy environment

Why polluters keep on polluting   

We know that Wales is littered with toxic sites that are leaching chemicals and harmful metals into our land and soil – from old quarry sites like Ty Llwyd to historic landfill sites, disused mines like Ffos y Fran, and old industrial workings.  

But it’s not just historic pollution blighting communities and nature. Microplastics have been found in soils and waters across Wales. 80% of Welsh dairy farms were found breaking pollution rules during inspections between 2020 and 2022. And just last year, sewage was spilt into Welsh rivers and seas over 100,000 times.

This toxic cocktail, often combined with the impacts of air pollution, biodiversity loss, and the destruction of green space, has a terrible impact on people and nature, especially the most disadvantaged communities. 

Not all pollution is as visible as poo in the water or plastic strewn ground. To stop pollution in the first place, we need strong laws and rules about what companies can and can’t do. And we need the government, regulators and local authorities to monitor water, air and soil for other forms of pollution, and check that systems are in place to prevent or fix any issues that could affect people or nature. And these vital safeguards just aren’t working properly. 

1. Lack of funding

The lack of funding for environmental regulators means there is less information available, the information that does exist is of poorer quality, and it is less likely polluters will face enforcement activity, legal action, or penalties. Natural Resources Wales (NRW) has seen a 36% funding cut since 2013/2014, which has had a predictable impact on monitoring and enforcement - with Y Byd ar Bedwar finding that Natural Resources Wales did not attend more than half of incidents reported to them between January 2023 and January 2024.  

We can see the results of this in the sewage scandal, where it has become apparent that not only are many sites not monitored at all, but also that many systems are broken, are not scheduled to record all year round.

2. Lack of information

Recent research estimates that 200,000 people across Wales live within 1km of a floodplain contaminated by historic metal mining. But no national hazard mapping yet exists to determine where toxins are present and at what levels. When people don’t know if their environment is toxic or polluted, they can’t take steps to avoid harm, or ask for problems to be cleaned up.

3. Lack of effective legislation and regulation

Contaminated land is dealt through the planning process and much smaller amount through legislation (Part 2A of the Environmental Protection Act 1990 and Contaminated Land Statutory Guidance for Wales 2012).

Even when a community is aware of a problem, they can face an uphill battle getting land designated as 'contaminated,' due to outdated and ineffective legislation that predates devolution. For instance, despite Caerphilly Council receiving a warning from NRW for letting contaminated water spill on to the road, the nearby toxic site is still not designated as a contaminated site, despite efforts by campaigners, significant local controversy and media coverage.

Power lies with the polluters, not the people. 

What's the solution?

In a nutshell, if we want a healthier and more sustainable environment, we need better laws, better enforced, integrated with other measures to protect our human rights, and backed up by the legal tools for everyone to access justice. 

The new Environmental Principles and Biodiversity Bill 

Wales is lagging behind the rest of the UK in replacing environmental protections which ceased functioning after Brexit, and in setting up a permanent Welsh environmental watchdog. But the new Environmental Principles and Biodiversity Bill will be introduced to the Senedd in the coming year. It should set targets to improve the Welsh environment, introduce a set of ‘environmental principles’ to guide policymaking, and establish the long-awaited permanent Welsh Environmental Assessor.

But Wales could also go further.  

Make our rights a reality

Internationally, the UK is signed up to the 1998 Aarhus Convention, which recognises that everyone should have the right to a healthy and sustainable environment. But no laws have ever been passed to implement this right for people living in the UK – and give them the tools to use it.

The United Nations General Assembly agreed back in 2022 this human right is important in underpinning our other fundamental human rights. And in Scotland, the government recently consulted on a Human Rights Act, including a legal right to a healthy environment.

It's time to start making that a reality here too. 
 

Ensure funding, independence and strength

Wales has now had only an ‘interim’ Environmental Assessor for three years. This interim assessor has been limited in power, capacity and scope, meaning that it has been harder for people in Wales to trigger action to improve compliance with environmental laws than in the rest of the UK. For this to change, the permanent assessor must be able to provide proper mechanisms to identify issues, give communities redress, and trigger action by public bodies.  

That means making sure that – just like the English and Northern Irish Office for Environmental Protection, and Environmental Standards Scotland, it has the funding, the independence and the strength to take on complaints from individuals, launch investigations, and oversee the Welsh government’s compliance with environmental law.

It also means learning from the experiences of the Welsh Interim Environmental Assessor, and the pre-existing statutory watchdogs, so that the new watchdog can hit the ground running and focus on the most important issues, with the most effective possible outcomes.

The Environmental Principles and Biodiversity Bill shouldn’t be limited by filling the Brexit-shaped holes first identified in 2018. It could do more to build on the aims and duties of the Well-being of Future Generations Act 2015, which sets out a requirement for public bodies to ‘carry out sustainable development’, by presenting an explicit right to a healthy environment, and an explicit duty for all parts of government to act compatibly with this right.  

This could develop on recent experience in Scotland, where a new Scottish Human Rights Act is under consideration – and at the UN, where the human right to a healthy environment has been high on the agenda in recent years. And it could implement commitments made by the UK government under Aarhus convention over 25 years ago – to a legal, human right to a healthy environment, supported by routes to participation, to access information, and to pursue justice. 

How it could work in practice

Let's say in the recent past or perhaps even further back, the mine near a town in Wales closed. Many people don’t even remember the mine today, although they can see some signs of old digging and industry on the land. 

Fast forward to 2027, and residents have noticed some worrying things. Livestock are getting sick and dying after annual floods, and growing has been banned in local allotments after reports of illness after eating vegetables grown there. Most people have switched to bottled water as the tap supply sometimes tastes…funny.

The community have heard there used to be an old mine nearby and are concerned that old pollution from it could be responsible for contaminating land and water in the area. But when they check with the council, there is no record that the land might be contaminated by old pollutants, and no plan to do anything about it.  

The community do some (metaphorical) digging. Because the Welsh Government has legislated to guarantee everyone access to information, they’re able to find out more about the historical pollution associated with the mine and learn that no checks have been carried out on soils and waters around the town. They learn that clean-up efforts have focused only on the mine itself and haven’t considered how pollution might spread through soils and waters. They complain to the council that a local investigation needs to be carried out, so the land can be listed as contaminated, then fixed. They remind the council that the new law guarantees everyone in Wales a legal right to a healthy environment. The environment watchdog has heard about the problem too and starts to investigate this kind of pollution across Wales. 

Now, the council and the Welsh Government have the eyes of the community and the watchdog on them. Local people and the watchdog both have the ability to take the council or the government to court if they don’t act. The chances of success would be high – ignoring contaminated land and the harm it is causing to people and nature would not be compatible with the right to a healthy environment. And because this new law also guarantees access to justice, the community knows any legal action will be made affordable, through a cap on their legal costs. 

As a result, the council investigates levels of historic pollution in the area, and designates some parts of the land as contaminated and sets out a plan to fix it.

This is just a fictional example, of course, but it is like other situations across Wales that are not being dealt with at the moment.

Historic opportunity 

As the drip, drip of media stories testifies, polluters have been getting away with lots of horrible things across Wales for years.

Some laws aren’t strong enough, and some aren’t enforced or acted on properly. The result is huge environmental injustice. People and nature are suffering ,and they can't do anything about it.

The Environmental Principles and Biodiversity Bill is a once in a lifetime opportunity to put things right. The Welsh Government must make the most of it.

We should all have a right to a healthy environment. Let's make it happen.