02 February 2023

“Of 23 environmental targets assessed, none were found where Government’s progress was demonstrably on track” (Office for Environmental Protection, January 2023) 

This is the headline finding from a report published in January by the Office for Environmental Protection on the Government’s progress against the 23 targets for improving the natural environment it set itself in 2018 in the 25 Year Environmental Plan. 

After this slightly gloomy start, does the rest of 2023 hold some more positive news for environmental law and policy? 

On 31 January, the Government published the Environmental Improvement Plan 2023, its delivery plan for the environment and for building a greener, more prosperous country. This update to the 25 Year Environmental Plan is not short on ambition, but it remains to be seen how the plans will be achieved. We have considered the Environmental Improvement Plan 2023 in more detail in our blog.

In this article we look ahead to the following six key areas of development in environmental law and policy expected this year:

  • Introduction of mandatory biodiversity net gain requirement
  • New ESG and sustainability reporting requirements
  • New extended producer responsibility regimes
  • Post-Brexit transition of products and chemicals regulation
  • Strategy and policy changes in emissions and air quality
  • Automatic expiry of all EU derived laws

Biodiversity Net Gain

The Environment Act 2021 introduced a requirement that, with a few exceptions, all developments achieve biodiversity net gain (BNG) of at least 10%, to be maintained over at least 30 years. This mandatory BNG requirement is due to come into effect in November 2023 for town and country planning development (2025 for nationally significant infrastructure projects). It is, therefore, critical that developers are aware of the extent of these changes and ensure they are prepared with a route to achieving net gain – whether on the development site, through offsetting projects elsewhere or through BNG credits.

We are waiting for further regulations and guidance from Defra to clarify exactly how the BNG regime will work in practice – for example, who will establish and maintain the biodiversity gain site register, what land is eligible for registration, who can register land and how, how land can be removed from the register and what fees are payable. Detail on how the biodiversity credits system will work in practice is also expected.

ESG and sustainability reporting

Recent years have each seen the introduction of new environmental disclosure and reporting requirements, driving the rise of ESG and sustainability on the corporate agenda. 2023 will be no exception.

The Sustainable Disclosure Requirements (SDR) and associated sustainable investment labels developed by the Financial Conduct Authority are expected to be implemented this year. These will build on the raft of non-financial and climate related reporting requirements flowing from the Task Force on Climate-related Financial Disclosures (TCFD), Streamlined Energy and Carbon Reporting (SECR), TCFD and Energy Savings Opportunity Scheme (ESOS) regimes. Crucially, the investment labels will have a real consumer focus – enabling consumers to understand the key sustainability-related features of an investment product.

We are also expecting to see the knock on effect of the new EU Corporate Sustainability Reporting Directive (CSRD). This is the new common reporting framework on environment and social impact in the EU, and will have an impact on UK businesses which have or are part of EU supply chains. The CSRD does not come into force until January 2024, but 2023 will be a crucial year for determining whether or not UK businesses are affected and preparing the necessary data to ensure compliance.

Extended producer responsibility

A new extended producer responsibility regime for packaging is expected to go live imminently. The principle underpinning producer responsibility regimes is that the producers pay the full costs of a dealing with the waste their product will ultimately become from the time when it is placed onto the market through to the end of its life. The idea is to incentive producers to design their products with sustainability in mind.

Under the new regime, businesses must collect data about the packaging they handle and supply through the UK market. This data will be used to calculate the disposal fees payable by the business on a quarterly basis. Draft regulations to bring the new regime into force are expected to be made law early in 2023. The full launch of the scheme is expected in January 2024, but business affected by the new rules will have to start collecting data during 2023 in preparation.

Defra also announced in January that a range of polluting single-use plastics will be banned in England from October 2023. The ban is expected to include single-use plastic plates, trays, bowls, cutlery, balloon sticks and certain types of polystyrene cups and food containers. The ban will not apply to plates, trays and bowls that are used as packaging in self-ready pre-packaged food items, as these will be covered by the new extended producer responsibility regime.

Products and chemicals

Following Brexit, the future of product safety and chemicals regulation in the UK has been a challenging area for businesses to navigate. 2023 was expected to be the year that key deadlines arose in the transition from EU REACH to UK REACH (for chemicals) and from CE marking to UKCA marking (for products). Both areas of regulation have seen extensions to deadlines in late 2022 meaning that, for most business, 2023 does present the cliff edge transition requirements previously expected.

However, 2023 could be the year we finally see the UK’s chemicals strategy published. This strategy, originally trailed in the Government’s 25 Year Environment Plan in 2018, will set out how the UK will regulate chemicals going forward including details of whether a dedicated chemicals agency will be established.

Emissions and air quality

The Government must publish an updated net zero climate strategy before the end of March 2023, after its current strategy was ruled unlawful in summer 2022 for not going far enough to meet the Government’s obligations under the Climate Change Act 2008. We are also expecting details on significant changes proposed to the UK Emissions Trading Scheme to achieve a net zero consistent cap for the scheme (to take effect from 2024).

On air quality, a key development expected in 2023 is publication by Defra of details on the new regime for UK best available techniques (BAT) for environmental permitting of industrial installations following Brexit – i.e. the economically and technically viable techniques that are best for preventing or minimising emissions and impacts on the environment as a whole. The UK BAT process will look at sectors in tranches, and Defra expects to publish national BAT conclusions for the first sectors (textiles, ferrous metals processing and waste gas treatment in the chemicals industry) in the first half of 2023.

Retained EU law

One of the most controversial pieces of legislation to come before Parliament in 2022 was the Retained EU Law (Revocation and Reform) Bill, which is set to see all EU derived laws expire automatically by the end of December 2023 unless ministers take steps to retain them. The Bill, commonly referred to as the Brexit Freedoms Bill, is currently making its way through Parliament. 

If enacted in its current form, the Bill has the potential, given the significant volume of UK environmental legislation which has its roots in EU law, to have a very significant impact on our environmental regulation and protections. There is a vast body of law to work through and determine whether it should be retained and/or amended. The legislative process has not yet seen any watering down of the Bill’s “sunsetting” provisions. However, Defra ministers including environment secretary Therese Coffey have indicated that their default approach will be to take steps to retain all EU derived laws relating to environmental policy.


We will be monitoring developments across these areas over the coming months.

If you have any questions or would like any further information about how these issues may impact you, please contact Michael Barlow or Sarah Sackville Hamilton.

Key contact

Michael Barlow

Michael Barlow Partner

  • Head of Environment
  • Head of Water
  • Head of ESG

Subscribe to news and insight

Burges Salmon careers

We work hard to make sure Burges Salmon is a great place to work.
Find out more