Brexit briefing: ENDS briefing on Brexit and environmental law

ENDS takes a look at the complexities of exiting from a four-decade long political and legal relationship, and examines what this means for the future of environmental regulation in the UK

In the historic referendum result on 23 June 2016, the UK voted to leave the European Union, sending political shock waves across the continent. Four months after the result, what is clear about the near and longer term future for UK environmental law and regulation?

Brexit means Brexit

Despite prime minister Theresa May’s insistence that “Brexit means Brexit” it in fact remains entirely unclear what Brexit will mean. All we know for sure is that the government intends to trigger the start of formal exit negotiations by the end of March 2017. Even this is uncertain because of continuing political and legal pressure for parliament to have the right to give approval for the process to start.

If exit negotiations do begin on the planned timetable under article 50 of the EU Treaty then the only certainty is that formal Brexit must happen within two years.

But there is no certainty whatsoever about what kind of divorce will be agreed, with possible outcomes ranging from continued membership of the European single market (the ‘softest’ Brexit) to a transitional agreement while further negotiations continue, to no legal relationship at all (the “hardest” Brexit).

The government’s stated priorities for the Brexit negotiations (taking back control of laws and immigration and no longer being subject to the jurisdiction of the Court of Justice of the EU) all point towards the harder end of the spectrum. Though with political controversy raging, both over what the government should aim for and what the remaining 27 EU member states will agree to, no one can confidently predict the outcome at this stage.

Brexit and environmental law

Environmental law is highly integrated across the EU. As ENDS set out in a special report before the EU referendum, any kind of Brexit therefore has enormous consequences for this subject. These are magnified if the UK leaves the single market because most EU environmental laws now apply not only to the 28 EU members but also to the four additional members of the European Economic Area (EEA).

Environmental issues featured little in the public debate leading up to the referendum. But several surveys of environmental professionals prior to the vote, including one by ENDS, showed a clear belief that EU membership has been beneficial for UK environmental standards.

What happens to UK environmental law now falls into three clear phases: the period leading up to Brexit, the formal moment of withdrawal and what happens afterwards.

Pre-Brexit

The government has stated clearly that until formal Brexit the UK remains a full member of the EU and will continue to comply with all legal obligations and play a full role in EU discussions.

On this basis there should therefore be no immediate change in environmental law at least until March 2019, or two years after the date article 50 is triggered. UK environmental regulators have also indicated that there will be no change in approach to regulation and enforcement in the period leading up to withdrawal.

On the other hand some experts have warned of a potential chilling effect during the period of negotiations due to an expectation that current EU obligations will no longer apply after Brexit.

There is also doubt over how active the UK will be in ongoing EU negotiations over new environmental laws. The British MEP leading the European Parliament’s position on reform of the EU Emission Trading Scheme resigned after the EU referendum, before being persuaded to return.

Even if UK government officials continue to participate fully in environmental negotiations in the Council of Ministers, it is far from certain whether the other member states will be listening.

Formal withdrawal and the Great Repeal Bill

Aside from its headline-grabbing objectives, the only other clear policy set out by the government is to draft a Great Repeal Bill. This is intended to repeal the European Communities Act (ECA) 1972 from the day of formal Brexit.

The ECA gave legal effect to the UK’s membership of the then European Economic Community. By repealing it the UK will formally free itself of the legal obligations of EU membership.

The other key stated aim of the Great Repeal Bill is to provide legal continuity by putting all current EU requirements into domestic law.

In the field of environmental law this looks certain to be a large and controversial job. This is partly because EU environmental law is so extensive - there are thousands of instruments in force - but also because there is no simple way of carrying over all the different kinds of EU requirements into domestic law.

To understand why, it is important to look at the different types of EU legislation and UK domestic laws passed to implement them.

Historically, most EU environmental laws were passed as directives, which member states are required to transpose into national legislation. For example:

Historically, most EU environmental laws were passed as directives, which member states are required to transpose into national legislation. For example, the EU Ambient Air Quality Directive is implemented in England by the Air Quality Standards Regulations 2010, in Wales by the Air Quality Standards (Wales) Regulations 2010, in Scotland by the Air Quality Standards (Scotland) Regulations 2010, and in Northern Ireland by the Air Quality Standards Regulations (Northern Ireland) 2010.

So many UK domestic laws will remain in place. However, UK regulations (including those of the devolved administrations) that implement EU directives are made under section 2(2) of the ECA, meaning that these too would lapse unless measures are taken in the Great Repeal Bill to fully domesticate them.

The other major, and increasingly used, form of EU environmental law is regulations. These are directly applicable in member states. There are more than 1,000 EU regulations currently in force and, unless these are written into UK law from the moment of Brexit, then large legal gaps will suddenly appear. See examples in the table below.

Examples of directly applicable environmental EU regulations

Chemicals

Pollution and waste

Products/standards

  • Ecolabel Regulation 66/2010/EU (supplemented by specific ecolabel decisions)
  • Ecodesign Regulations implementing the Ecodesign Directive 2009/125/EC for specific products
  • Detergents Regulation 648/2004/EC
  • Eco-Management and Audit Scheme (EMAS) III Regulation 1221/2009/EC

Climate change, emissions, vehicle type-approval

Conservation

In addition, many UK regulations, whether implementing EU directives or aspects of law further to EU regulations, refer to EU laws for definitions and interpretations.

For example, the UK Ship Recycling Facilities Regulation 2015 includes the phrase: “Terms which are used in these Regulations that are used in the EU Ship Recycling Regulation have the meaning they bear in that Regulation”. It is unclear yet whether these could continue to apply or whether such definitions would also need to be domesticated through the Great Repeal Bill.

One key issue around the Great Repeal Bill and environmental law is how effective the domestication process will be in practice. Some pro-Brexit politicians have presented it as being equally as short as the original ECA, stating in general terms that all current EU laws will continue to apply.

But it has also been suggested that legal changes will need to be made on a case-by-case basis. This implies both a massive legal effort and significant potential for gaps to be left by error or omission.

The second key issue is whether the Great Repeal Bill will only provide legal continuity or whether the government will use it to introduce modifications through ministerial regulations.

Under section 2(2), the ECA gives wide powers to ministers to introduce regulations amending UK acts of parliament in order to align UK rules with EU directives. Legal commentators and pro-Brexit politicians have suggested that these ‘Henry VIII’ powers could be used to “revoke, keep or amend” such regulations.

Any attempt to use the the Great Repeal Bill to change current laws would be highly controversial, fuelling fears among environmental professionals of environmental deregulation, and among opposition political parties of legal changes without parliamentary oversight. It is not yet clear whether this will happen, but Brexit minister David Davis has said that the bill will “include powers for ministers to make some changes by secondary legislation” and will only keep legislation “wherever practical”.

Post-Brexit

What will happen to UK environmental law after Brexit remains uncertain. In principle Britain will have greater scope to make changes, and within the UK the devolved administrations can diverge more substantially in their political and legal approaches.

But the scope for change will depend hugely on what type of Brexit agreement is struck, and the type of changes actually introduced will depend on the political will of UK governments and political stakeholders.

In general terms, the closer the relationship the UK retains with the EU the more legal continuity there will be. The majority of modern EU environmental laws apply throughout the single market, so if the UK remains part of the EEA then it will cease to be bound by relatively few EU environmental rules, mostly in the fields of nature conservation and farming.

If the UK leaves both the EU and the EEA but joins the European Free Trade Area (EFTA) then most EU environmental laws would cease to apply automatically.

In the scenario of a pure hard Brexit, no EU environmental laws would continue to apply to the UK automatically. However, it has been widely discussed and acknowledged by the government that, in order to continue to trade with the EU-27, a post-Brexit Britain would need to maintain equivalence with EU environmental product rules. This suggests a much lower likelihood of large-scale changes after Brexit than would be technically possible.

Irrespective of the exact terms of Britain’s divorce agreement with the EU, commentators are beginning to highlight a number of issues surrounding continuity and onward development of environmental law in the UK.

One is that EU regulations converted en masse into domestic legislation could become fossilised. The EU has active mechanisms for continual review and updating of many environmental product laws. The UK could in theory take measures to keep up where it wished to maintain equivalence for the purpose of facilitating trade, but it would be a significant legal task.

A second is that environmental campaigners will no longer have recourse to the Court of Justice of the EU where UK practice does not live up to legal obligations. This is especially pertinent if the UK government makes exiting entirely from the jurisdiction of the European court a red line in its exit talks.

It is possible that the same effect could be achieved via the UK courts, but there is still great uncertainty over whether this will be the case.

A third issue that would arise, especially if the UK remains in the single market, is that large numbers of EU environmental laws would continue to apply, but neither the UK government nor UK MEPs - who will all disappear in any scenario - will have a say in any changes. This scenario would maximise continuity at the expense of direct influence.

A fourth issue is how environmental law will evolve within the UK. Although the devolved administrations already have substantial power to set their own environmental policies, and to some extent have diverged, they have been following a similar track due to requirements to comply with the unifying EU framework. Brexit will give them much greater scope to devise their own approaches.

Ultimately, while the most plausible scenario is that the UK will seek retain at least equivalence of environmental rules required to facilitate trade with the EU, how other environmental laws will change will depend on a debate that is only now beginning over what kind of country post-Brexit Britain will want to be.

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