Brexit briefing: UK environmental law in a single market Brexit

ENDS examines which environmental laws the UK will regain powers over even if it remains a full member of the EU single market

Which UK or devolved administration measures will no longer be constrained by EU rules? Photograph: JE Whyte/123RFBrexit could have wide-ranging implications for environmental law in the UK. But there is enormous uncertainty over how extensive the repatriation of legal rights will be, principally around whether the UK will remain in or exit the EU single market.

As we showed before the EU referendum in our special report An Environmental Union?, in a scenario of continued single market membership the majority of current EU environmental laws would continue to be binding on the UK.

However, even in this case a non-trivial number of laws currently applicable in the UK would cease to be constrained by EU level rules. These laws could then be amended, either through the Great Repeal Bill or, more likely, after Brexit day.

The ENDS Report and ENDS Compliance Manager have collaborated to create the following list of all the main pieces of environmental legislation in this category.

No one can say yet what will be amended. But this list provides a point of reference by highlighting what could be.

The list includes UK or devolved administration measures that will no longer be constrained by EU rules. It also shows EU regulations that are directly applicable in member states but that do not apply to the European Economic Area.


Learn more at our forthcoming conference:

Environment After Brexit:
 
Building an Agenda for Environmental Law and Business

11 April 2017, Bournemouth University

NATURAL HABITATS

Primary implementing legislation:

  • The Conservation of Habitats and Species Regulations 2010 (SI 2010/490) (E, W, S)
  • The Conservation (Natural Habitats, &c.) Regulations 1994 (SI 1994/2716) (S)
  • The Conservation (Nature Habitats, etc.) Regulations (Northern Ireland) 1995 (SR 1995/380) (NI)

These are the primary UK implementing laws for the Habitats Directive 92/43/EEC and the Birds Directive 2009/147/EC. They establish a framework for the protection of habitats and species of European importance in the UK.

Offshore marine protection:

  • The Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 (SI 2001/1754) (UK)
  • The Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 (SI 2007/1842) (UK)

These implement the Habitats and Birds Directives for the specific case of offshore operations.

Environmental impact assessment:

  • The Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (SI 2011/1824) (E)
  • The Environmental Impact Assessment (Agriculture) (Wales) Regulations 2007 (WSI 2007/2933) (W)
  • The Environmental Impact Assessment (Agriculture) (Scotland) Regulations 2006 (SSI 2006/582) (S)
  • The Environmental Impact Assessment (Extraction of Minerals by Marine Dredging) (Scotland) Regulations 2007 (SSI 2007/485) (S)

These laws primarily implement the EU Environmental Impact Assessment Directive, which has single market impact. They also include special restrictions relating to designated conservation sites of European importance as specified under the Habitats and Birds

Planning:

  • The Town and Country Planning (General Permitted Development) Order 1995 (SI 1995/418) (W)

This order sets out what types of development are generally permitted in the planning regime for Wales. It includes special restrictions on development in protected sites designated under the Habitats and Birds Directives.

WATER QUALITY

Primary implementing legislation:

  • The Bathing Water Regulations 2013 (SI 2013/1675) (E, W)
  • The Bathing Waters (Scotland) Regulations 2008 (SSI 2008/170) (S)
  • The Quality of Bathing Water Regulations (Northern Ireland) 2008 (SR 2008/231) (NI)

These regulations implement the EU Bathing Water Directive 2006/7/EC, which imposes requirements on member states to classify, monitor and manage bathing water to improve water quality and ensure adequate provision of information to prospective bathers.

FLOODING

Primary implementing legislation:

These instruments impose a duty on regulators and local authorities in the UK to prepare flood risk assessments, maps and management plans. They implement the requirements of the EU Floods Directive 2007/60/EC for the UK.

COMMON AGRICULTURE POLICY

Primary EU regulations:

  • The EU Horizontal Regulation 1306/2013/EU, setting out rules on financing, management and monitoring (supplemented by EU Delegated Regulations 640/2014/EU and 809/2014/EU)
  • The EU Direct Payments Regulation 1307/2013/EU (supplemented by EU Delegated Regulations 639/2014/EU and 808/2014/EU)
  • The EU Rural Development Regulation 1305/2013/EU (supplemented by EU Delegated Regulation 807/2014/EU)

These EU regulations establish the reformed Common Agricultural Policy (CAP).

Additional UK instruments:

  • The Common Agricultural Policy (Control and Enforcement, Cross-Compliance, Scrutiny of Transactions and Appeals) Regulations 2014 (SI 2014/3263) (UK)
  • The Common Agricultural Policy Basic Payment and Support Schemes (England) Regulations 2014 (SI 2014/3259) (E)
  • The Common Agricultural Policy Basic Payment and Support Schemes (Wales) Regulations 2015 (WSI 2015/1252) (W)
  • The Common Agricultural Policy Basic Payment Scheme (Provisional Payment Region Classification) (Wales) Regulations 2014 (WSI 2014/1835) (W)
  • The Common Agricultural Policy (Integrated Administration and Control System and Enforcement and Cross Compliance) (Wales) Regulations 2014 (WSI 2014/3223) (W)
  • The Rural Development Programmes (Wales) Regulations 2014 (WSI 2014/3222) (W)
  • The Common Agricultural Policy (Direct Payments etc.) (Scotland) Regulations 2015 (SSI 2015/58) (S)
  • The Rural Development (Scotland) Regulations 2015 (SSI 2015/192) (S)
  • The Common Agricultural Policy Direct Payments and Support Schemes (Cross Compliance) Regulations (Northern Ireland) 2014 (SR 2014/291) (NI)
  • The Common Agricultural Policy Basic Payment and Support Schemes Regulations (Northern Ireland) 2015 (SR 2015/191) (NI)
  • The Common Agricultural Policy (Control and Enforcement) Regulations (Northern Ireland) 2015 (SR 2015/192) (NI)
  • The Rural Development Programme Regulations (Northern Ireland) 2015 (SR 2015/326) (NI)

These UK instruments supplement the EU CAP regulations and make provision for the administration and enforcement of the revised CAP direct support schemes in the UK, including the basic payment and rural development schemes.

COMMON FISHERIES POLICY

Primary EU regulations:

These EU regulations, alongside with associated EU regulations (850/98/EC, 254/2002/EC, 2347/2002/EC, 1954/2003/EC, 2187/2005/EC, 1967/2006/EC, 1098/2007/EC, 1342/2008/EC, 1379/2013/EU), establish the Common Fisheries Policy (CFP) to ensure the sustainable management of fisheries in the EU, through rules on the conservation, management and exploitation of living aquatic resources, aquaculture, and the processing and marketing of fishery and aquaculture products in the EU.

These EU regulations establish an EU system to eliminate IUU fishing in EU and international waters, which works alongside the EU CFP Control System Regulation 1224/2009/EC to enforce the rules of the CFP.

Additional UK instruments:

Labelling and traceability

  • The Fish Labelling Regulations 2013 (SI 2013/1768) (E, UK for Part 2)
  • The Fish Labelling Regulations (Wales) 2013 (WSI 2013/2139) (W)
  • The Fish Labelling Regulations (Scotland) 2013 (SSI 2013/256) (S)
  • The Fish Labelling Regulations (Northern Ireland) 2013 (SR 2013/219)(NI)

These regulations implement traceability requirements of the CFP, alongside consumer labelling requirements derived from other EU instruments.

Conservation and prohibitions of fishing

  • The Sea Fishing (Prohibition on the Removal of Shark Fins) Order 2007 (SI 2007/2554) (E, W)  
  • The Sea Fishing (Prohibition on the Removal of Shark Fins) (Scotland) Order 2007 (SSI 2007/39) (S)
  • The Sharks, Skates and Rays (Prohibition of Fishing, Trans-shipment and Landing) (Scotland) Order 2012 (SSI 2012/63) (S)
  • The Inshore Fishing (Prohibition of Fishing and Fishing Methods) (Scotland) Order 2015 (SSI 2015/435) (S)
  • The Sea Fishing (Enforcement of Measures for the Recovery of the Stock of Irish Sea Cod) (Scotland) Order 2000 (SSI 2000/26) (S)
  • The Sea Fishing (Enforcement of Measures for the Recovery of the Stock of Cod) (Irish Sea) Order 2000 (SR 2000/435) (NI)  
  • The Mussels (Prohibition of Fishing) Regulations (Northern Ireland) 2013 (SR 2013/1) (NI)

These orders and regulations set out prohibitions of fishing activities in relation to specific stocks of marine wildlife, to comply with conservation requirements of the CFP. They also rely on the framework of special conservation areas set up under the Habitats and Birds Directives.

TRADE IN HAZARDOUS CHEMICALS

Primary EU regulation:

  • The EU Prior Informed Consent on Trade in Hazardous Chemicals (PIC) Regulation 649/2012/EU

The EU PIC Regulation establishes a framework for cooperation in the international movement of hazardous chemicals to protect human health and the environment from potential harm. It implements the Rotterdam Convention on the Prior Informed Consent Procedure, and is closely linked with other instruments within the EU chemicals regime (such as the EU Classification Labelling and Packaging (CLP) Regulation 1272/2008/EC and REACH 1907/2006/EC).

TRADE IN WILDLIFE

Primary EU regulations:

These EU regulations implement the International Convention on Trade in Endangered Species (CITES) for the EU.

Additional UK instruments:

  • The Control of Trade in Endangered Species (Designation of Ports of Entry) Regulations 1985 (COTES PoE) (SI 1985/1154) (UK)
  • The Control of Trade in Endangered Species (Enforcement) Regulations 1997 (COTES Enforcement) (SI 1997/1372) (UK)

These regulations enforce the EU CITES Regulations for the UK.

This briefing is part of a series by the ENDS Report and ENDS Compliance Manager. The first was an overview of Brexit and environmental law.

To see our full Brexit coverage visit our dedicated update page.

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