Part 1: Environmental Governance Chapter 2: The Office for Environmental Protection Section 46: Meaning of "environmental law"
This section deals specifically with the definition of "environmental law", and therefore the scope of the OEP’s functions that depend upon this definition.
	Subsection (1) defines "environmental law", for the purposes of this Part, as any legislative provision to the extent that the provision is mainly concerned with environmental protection as defined in section 43 and is not explicitly excluded under subsection (2).
	Subsection (1) uses the term "legislative provision", which is a reference to UK legislation, and can cover specific sections or subsections of an Act, regulations or other forms of legislation. As such, the effect of this subsection is that the OEP will not have a statutory function to assess compliance with purely international environmental law. Rather, its remit will be limited to enforcing UK legislation that falls under the definition of environmental law, including legislation that implements international commitments.
	The definition of environmental law applies at the level of legislative provisions (that is, the whole or any element of an Act or regulations). This means that, even if most of an Act or set of regulations does not meet these conditions, to the extent that any specific provisions in the Act or regulations do meet the conditions they should be considered as "environmental law".
	The only matters explicitly and expressly excluded from the definition of environmental law are those which are concerned with an excluded matter listed under subsection (2) and those excluded by subsection (3). Subsection (3) provides that, other than for the purposes of section 20, devolved legislative provisions as defined in subsection (4) are excluded from the definition of environmental law. Unless so expressly excluded, any other law can be considered to determine whether individual legislative provisions are "mainly concerned" with environmental protection. This does mean that within broadly environmental policy areas, whilst many provisions may meet these criteria, there may be certain provisions that will not be mainly concerned with environmental protection, and therefore not constitute environmental law.
	For example, the Forestry Act 1967 contains examples of provisions that would be considered to be mainly concerned with environmental protection, and therefore constitute environmental law, as well as provisions which would not. Section 1(3A) of the Forestry Act 1967, for instance, places a duty on the appropriate authority to endeavour to achieve a balance between its functions in relation to afforestation and timber supply and production, and "the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest". As this places a duty on a public authority concerning the conservation of the natural environment, this provision would fall within scope. However, some other provisions within this Act would not, such as section 1(2), which charges the appropriate forestry authority "with the general duty of promoting the interests of forestry, the development of afforestation and the production and supply of timber and other forest products". This provision is mainly concerned with the promotion of the forestry sector and the production and supply of timber, rather than an element of environmental protection as listed in section 45, and as such would not be considered to fall within the definition of environmental law.
	Another example is planning legislation. Whilst provisions concerning environmental impact assessment and strategic environmental assessment are clearly concerned with environmental protection as set out in section 45, and therefore will fall within the definition of environmental law, most other areas of planning legislation are not mainly concerned with environmental protection, and therefore will not fall within the definition.
	It will be for the OEP to assess whether or not it considers a legislative provision to fall under the definition on a case by case basis when determining whether or not it has legal powers to act in that area. In most cases, it is expected that the answer to this question will be clear, and agreed by all parties. However, there may be cases of uncertainty or disagreement, and in these instances it may ultimately be for the courts to decide whether a specific provision falls within the definition or not.
	Subsection (2) sets out matters that are explicitly excluded from the definition of environmental law:
Disclosure of or access to information. These matters are excluded under paragraph (a) in order to avoid overlap between the remit of the OEP and that of the Information Commissioner’s Office, which oversees and where necessary takes action to enforce public authorities’ compliance with the Environmental Information Regulations.
The armed forces or national security (paragraph (b)).
Legal provisions concerning taxation (paragraph (c)). The term "taxation" in this context refers to taxes in a legal sense, and therefore does not include other regulatory schemes that involve fees and charges for purposes other than taxation, such as the plastic bag charge or the imposition of fees to cover the cost of a regulatory regime. Such schemes are not automatically excluded from the Act’s definition of "environmental law".
Paragraph (c) also excludes provisions concerning spending or the allocation of resources within the government from the definition of "environmental law". As such, all finance acts are excluded.
	Subsection (4) defines what is meant by "devolved legislative provision" as any provision which is contained in or created by legislation of the three devolved Assemblies and Parliaments, or which otherwise falls within their legislative competence.
	Subsection (5) provides that the Secretary of State may use secondary legislation to specify legislative provisions which do or do not fall within the definition of "environmental law" in subsection (1). Provision in this way could be used if necessary in the light of experience for instance to resolve an ambiguity about how the definition applies to particular legislation. Subsection (6) requires that the Secretary of State must consult the OEP, and any other persons the Secretary of State considers appropriate, before using this power to specify provisions.
	Subsection (7) provides that any such provision made under subsection (5) would be made through a statutory instrument subject to the affirmative resolution procedure. This means it must be laid before and approved by a resolution of each House of Parliament.