Government is updating its process for deciding whether to grant emergency authorisations for use of restricted pesticides to ensure that it makes proper assessment of potential environmental harms, following an investigation by the Office for Environmental Protection.
The OEP carried out an investigation into possible serious failures by the department to comply with a number of environmental laws in relation to emergency authorisations granted for the use of Cruiser SB on sugar beet seeds.
In particular, the investigation looked at Defra’s interpretation and application of the precautionary principle and compliance with nature conservation obligations set out in the Habitats Regulations 2017 and the Wildlife and Countryside Act 1981 (WCA) when it considered granting emergency authorisations in 2023 and 2024. It also considered compliance with the duty to have due regard to the Environmental Principles Policy Statement (EPPS).
The investigation, which was launched following a complaint being submitted to the OEP by ClientEarth, has now concluded and a full report of its findings has been published. The report can be found here: Report on OEP investigation into emergency authorisations of neonicotinoid pesticides | Office for Environmental Protection
Helen Venn, Chief Regulatory Officer for the OEP said: “Pesticides can obviously be extremely harmful to wildlife, including bees and other pollinators. It is only right that the use of restricted or banned pesticides is tightly controlled and takes proper account of the environmental protections in place.
“While our investigation was focused on emergency authorisations of neonicotinoid pesticides, we were looking at the decision-making process not the decisions themselves. Our findings will have implications for how all applications for emergency authorisations are considered in future and will lead to proper consideration of the impacts on protected sites."
Of six grounds of investigation, the OEP concluded that there had been failures to comply with environmental law in relation to four. These included failures to take proper account of the requirement to carry out an appropriate assessment of the authorisation’s implications for certain protected sites, and to take steps to understand and avoid or mitigate the known risk of harm to those sites, both requirements of the Habitats Regulations. It also found failures to take reasonable steps to further the conservation and enhancement of designated Sites of Special Scientific Interest (SSSI) features and consider whether the authorisations were likely to damage those sites under the WCA.
The two grounds for which the OEP found no failures to comply with environmental law related to whether Defra had taken into account the precautionary principle or had due regard to the EPPS. Earlier in the investigation the OEP indicated that it believed that there had been failures to comply relating to these grounds. However, further information was presented during the course of the investigation that caused it to reach a different conclusion.
“During the investigation there was significant and constructive engagement between the OEP and Defra,” added Ms Venn. “Defra has proposed to update the assessment process for granting emergency authorisations, so that it expressly recognises the relevance of potential impacts upon protected sites. This is very welcome.
“We are therefore closing our investigation at this stage because we are satisfied that these planned updates, if applied correctly, can prevent reoccurrence of the failures to comply with environmental law we have identified.
“However, we will monitor the implementation of the updated process, which is due to be in place by November 2026.”
The OEP makes three recommendations to Defra:
- Ensure that the updated assessment process expressly recognises the potential relevance of impacts on protected sites.
- Ensure that the updated assessment process is formalised by the agreed deadline of November 2026.
- Ensure that the precautionary principle reasoning process is referred to clearly and appropriately in future emergency authorisation decisions.
Notes
The OEP’s investigation into emergency authorisations of neonicotinoid pesticides is a statutory investigation under section 33 of the Environment Act 2021.
The report published today sets out findings in relation to the six grounds of investigation. In relation to the first two grounds, the OEP makes no findings of failure to comply with environmental law by the Secretary of State:
Ground 1 Failing to take into account the precautionary principle as a material consideration when granting the 2023 and 2024 Authorisations under article 53 of the Plant Protection Products Regulation 2009 (as amended) (PPP Regulation), in light of article 1(4) of the PPP Regulation; and
Ground 2 Failing to have due regard to the EPPS for the 2024 Authorisation, under section 19(1) of the Environment Act 2021.
In relation to the remaining four grounds, the OEP finds that the Secretary of State failed to comply with environmental law as follows:
Ground 3 Unlawfully failing to take proper account of regulation 63 of the Habitats Regulations when exercising their functions to grant the 2023 and 2024 Authorisations under article 53 of the PPP Regulation;
Ground 4 Unlawfully failing to take appropriate steps to understand, and thereafter to avoid or mitigate, the known risk of harm to European sites in accordance with article 6(2) of the Habitats Directive4 when granting the 2023 and 2024 Authorisations, as required by regulation 9(1) and (3) of the Habitats Regulations;
Ground 5 Unlawfully failing to take reasonable steps to further the conservation and enhancement of designated SSSI features when approving the 2023 and 2024 Authorisations, as required by section 28G(1)-(2) of the WCA 1981; and
Ground 6 As a result of the failure in Ground 5, unlawfully failing to turn their mind to the question of whether permitting the use of Cruiser SB by approving the 2023 and 2024 Authorisations was likely to damage designated SSSI features, as required by section 28I(2) of the WCA 1981.
The full text of the OEP’s recommendations is:
Recommendation 1 As Defra has indicated it intends, ensure that the updated article 53 assessment process expressly recognises the potential relevance of impacts upon protected sites, including by:
Ensuring that the process applies to designated SSSI features as it does for other types of protected sites, so that it takes into account the requirements of s.28G of the WCA 1981;
Ensuring that, within the scope of the risk assessment for emergency authorisations, suitable universal conditions are applied if the Health and Safety Executive (‘HSE’) risk assessment flags a significant effect on a European site against a specific conservation objective; and
Where derogation is necessary under the updated assessment process, because it is not possible to exclude a risk to the relevant conservation objectives, Defra (or HSE in the first instance) checking at that stage which specific sites the affected conservation objective(s) relate to, in order to determine that (i) there are no alternative solutions, (ii) there are imperative reasons of overriding public interest and (iii) monitoring and compensation are provided for.
Recommendation 2 Ensure that the updated assessment process in recommendation 1 is formalised by the agreed deadline of November 2026. HSE should also update its internal guidance and assessment documentation accordingly.
Recommendation 3 Ensure that the precautionary principle reasoning process is referred to clearly and appropriately in future emergency authorisation decisions.
