The UK government has an ambition to “leave our environment in a better state than we found it”. But can it be trusted to do so? It is a question that cuts to the heart of a four-year debate about UK environmental protection and regulation as intimate ties with the EU are cut. However, whatever happens in the last throes of negotiations, 31 December is not the end game. In some ways it is the starting gun for what Nick Molho, executive director of the Aldersgate Group, refers to as the “nitty gritty”.
The Environment Bill is of course the centrepiece of post-Brexit green regulation, coming with a new Office for Environmental Protection (OEP), as well as long-term targets. It has a completely new regulatory architecture built into it and as such could be “world leading”. So, will our flora and fauna flourish and our waterways run pure? Will our chemicals be cleaned up and the air in our cities cleansed? Will we lead the UN COP26 climate talks in Scotland with powerful carbon-pricing policies?
Listen to ministers and the answer to all of the above is yes. It is a romantic notion. EU laws have pushed the UK to better protect the environment but the regime is far from perfect, as recent status reports from the European Environment Agency show. “It’s a bleak picture,” says Martin Baxter, chief policy adviser at IEMA. “You could absolutely argue it could be worse,” but “trying to get  countries on the same page is more challenging than one. The UK can be more agile.”
While Baxter’s glass seems half full, others remain cautious. Some ministers are eyeing up which red tape to cut, their scissors arguably sharpened by a pandemic that has ravaged the economy. Campaigners talk not of taking back control but of loss of control. They wonder if our rivers will become dirty, our air choking and our chemicals more poisonous. Will our newts be damned, our insects wiped out and our fish stocks plundered? Will the UK become the dirty man of Europe once again?
The spoiler alert here is: we don’t know. “The extent to which [Brexit] provides opportunities for the UK to enhance or degrade its environmental law remains to be seen,” wrote Richard Macrory, emeritus professor at the faculty of laws, University College London, in a paper for the Academy of European Law last year. Unsexy as the answer is, it still rings true today.
Regulatory wriggle room
As head of the Greener UK unit at think-tank Green Alliance, Sarah Williams has been following developments as closely as anyone. Through the Environment Bill’s long-term targets there is the framework to improve environmental protection – “it could be world leading, there’s no doubt about it,” she says.
Ministers are making all the right noises – Brexit remains an opportunity to release radical rather than regressive regulation. The first speech Michael Gove made as environment secretary, before he took on his current role as cabinet secretary, pitched Brexit as the “unfrozen moment” when “new possibilities occur”. But at critical points they seem to get cold feet – non-regression and level playing fields are not welcome in a sovereign state. This has left “too much wriggle room”, warns Williams.
Around 850 pieces of legislation requiring amendment post-Brexit fall within DEFRA’s remit, for instance, with one in four relating to the environment. This is why the government has used a form of delegated legislation, known as statutory instruments (SIs), to transfer them to the UK statute book. SIs are the mundane stuff of day-to-day governance, but policies that are not reviewed and revised risk what’s called “zombification”.
It is these zombies that are keeping environmentalists awake at night; a creeping divergence and regression from the EU rather than a bonfire of red tape. “It’s informalisation and stagnation we are most concerned about,” says Veerle Heyvaert, professor of law at the London School of Economics and Political Science (LSE).
Brexit & Environment, a network of academic experts, recently compared 24 key EU environmental laws with the 20 SIs adopted to retain them in UK law. Most removed the review and revision clauses in the EU laws they modified. “It was made at great speed and with little democratic scrutiny,” explains professor Andy Jordan, the network’s co-chair.
SIs have come thick and fast with clauses removed in regulations relating to mercury and pesticides as well as waste shipments. Others have been transposed with the clauses intact. It is not yet clear why: environmental standards will not be weakened, and may be enhanced in some areas, the government insists.
For high-profile policies, such as climate change, that may well be the case. The UK has a legally binding net zero emissions target, and a prime minister in Boris Johnson who is reportedly “obsessed” with next year’s hosting of COP26. A new emissions trading scheme that dovetails with the EU’s would certainly offer the united front needed to convince China and the US to go for carbon-pricing measures. “Energy and climate is the opportunity to build an important deal that will expand to other areas where you have more issues,” says Máximo Miccinilli from the Centre on Regulation in Europe.
Compare the policy areas the EU perceives are at risk of regression with the areas of EU environmental law that the UK has continually struggled with and there are some obvious overlaps: nature, water and land use planning policy. Indeed, the general pattern of enforcement activity over the past 40 years shows product standards are less likely to regress than non-product standards. “The EU wields enormous market power,” Jordan explains, so “UK traders that do not self-implement EU rules risk being locked out of the EU’s enormous single market”.
Chemicals are an obvious – but under-reported – case in point. The sector is the UK’s number one manufacturing exporter and one of the most intensely centralised fields of regulation. Yet its Brexit clock is ticking louder than most. The Health and Safety Executive (HSE) has its work cut out with a new regime, UK-REACH (or more ironically B-REACH), replacing the EU’s REACH chemical regulation regime. Additional costs to industry could be £1bn with “no tangible value to enhancing safety for chemicals”, BASF regulatory affairs manager Neil Hollis told a House of Commons committee.
There has been little time for engagement on modification of REACH. Ministers have said they are keeping the ‘what’ of REACH but part 8 and schedule 20 of the Environment Bill gives them the freedom to change the ‘how’. “That’s fine,” says Simon Tilling, partner at Burges Salmon, but “we don’t yet have any visibility on any substantive changes”.
There are other headaches in chemicals regulation that pop up elsewhere in the environmental policy landscape. First is whether Brexit puts UK policies on the back foot. The bloc is kicking on with its ecodesign standards, for instance, broadening their scope to ensure products are more durable, reusable, upgradable, repairable and recyclable. The UK may well mimic some of this as laid out in its resources and waste strategy, but it is behind other developments in this space.
On emissions trading there is also work to be done. The EU’s Emissions Trading System (EU ETS) has had its issues but seems to be working just as the UK exits. It is also set to be expanded to cover other sectors. What will a UK system look like? We don’t know. The Treasury is reportedly keen on a carbon tax while the Department for Business, Energy and Industrial Strategy wants to stick with a trading scheme.
Politicians should tread carefully, warns Miccinilli, given the potential to derail the trajectory of the climate ambitions of both sides. “Is it credible to go to Glasgow and say the UK has a standalone system that isn’t aligned with the EU?” He likens it to a “mini-Brexit process focused on energy and climate” and the timings are tight.
This is the case too for chemicals. The European Commission has just published a chemicals strategy for sustainability as part of its zero pollution ambition in the European Green Deal. So, while it spends the next decade focusing on more sustainable chemicals and driving change, “we will spend the best part of [it] collecting the data”, says Tilling.
A second concern is the loss of expertise. The European Chemicals Agency manages REACH with an army of staff and the support of national agencies in 27 countries gathering data. “There are 27 member states working together, bringing issues, sharing issues,” explains Begonia Filgueira, partner at Acuity Law. “It’s not about having bad scientists in the UK, the UK has very good scientists,” she adds, “it’s about having large numbers of them.”
There could be similar issues with industrial emissions. Existing guidance on best available techniques (BAT) will be transferred directly into UK law, minimising disruption. But this would not stop the UK drifting away from the bloc: a passage in the government’s Clean Air Strategy indicates it could simply skip producing full BREFs (BAT reference documents).
A consultation is imminent. But how to keep tabs on BREF development is a longstanding concern; and there will be increased pressure on environmental groups to keep track. Currently, “we rely heavily on the EU college to scrutinise what’s going on”, says Green Alliance’s Williams.
However, many NGOs have been stretched by Brexit and Covid-19 and are scrambling to keep up with waves of SIs. “There is a risk these bodies – that have been a vibrant part of environment policy and law – will have to regain their footing,” says LSE’s Heyvaert. “And that’s happening against a backdrop of ticking time bombs.”
The OEP, for example, will be a “new quantity” for them to work with and relate to. It is another body with a tough gig – the office will constitute the domestic framework to replace some of the European Commission’s oversight functions.
In theory, the introduction of national accountability is a powerful one – the usual excuses of ‘undeliverable’ and ‘ill-thought-out’ EU targets vanish. However, the OEP’s independence has been in the spotlight. Some believe it is shaping up to be more government lapdog than toothy watchdog.
Regulation also needs to provide businesses with certainty to be effective. “Environmental policy only works if business and people understand what they are being asked to do and what happens if they break the rule,” wrote professor Charlotte Burns, co-chair at Brexit & Environment. “For example, if you plan to dump sewage in a river to save money, the fine has to be big enough to make you think twice about doing it.”
That example was in part inspired by ENDS’s work on rivers, Burns says. In recent weeks, DEFRA has been fighting fires over England’s polluted waterways. Not one river or lake in England met a legal water quality standard threshold as required under the EU’s Water Framework Directive (WFD). Deadlines for meeting these standards have been continuously extended and missed. Could Brexit be an opportunity to move the goalposts?
Environment Agency chief executive Sir James Bevan certainly set tongues wagging when he came out in support of “thoughtful reform” of the WFD, taking aim at the ‘one out, all out’ rule, under which rivers fail to meet the required status if they fail on any of the four measures set out in the directive. He claimed the approach “can underplay” improvements that have in fact taken place. Indeed, delete that rule and the proportion of rivers in ‘good health’ shoots up from 14% to 79%.
When it comes to water regulation, there is another area to look out for: nitrates. The planning system for residential development has almost ground to a halt in the Solent area due to Natural England advice that was triggered by a European Court of Justice ruling – the so-called Dutch case. Natural England will only support planning applications where the development has become nitrate neutral, which means developers have had to incur extra costs to gain planning consent. But courts can diverge on the meaning of EU law, says Acuity’s Filgueira, so what happens from January is anyone’s guess. “It’s certainly politically sensitive.”
As the government looks to “build, build, build”, some of the EU’s nature directives will certainly be early contenders for any regression. “We can debate whether the UK really needs the Birds Directive, but everyone knew that France and Italy, where migratory birds were regularly slaughtered, would never have legislated on their own,” wrote Nigel Haigh, former director of the Institute for European Environmental Policy and former chair of Green Alliance. “Birds in Europe are better off for it.”
Nightmare for newts?
Can the same be said for UK newts or snails following Brexit? “We might decide that it was indeed absolutely necessary for every environmental impact assessment (EIA) to monitor two life cycles of the snail or to build special swimming pools for newts but it would at least be our decision to do that,” said Boris Johnson in 2018.
The prime minister again belittled the importance of biodiversity in an economic recovery speech in the summer. The government’s planning white paper suggests the whole system, including EIA, is too long and complicated. A heated consultation is expected this autumn. IEMA sees it as an opportunity to develop a “more proportionate” EIA process. Baxter actually feels there is a “greater sense of treating the environment as a system” in some of the government’s thinking.
This is certainly a hugely important 12 months when it comes to the environment – nationally and internationally. “There are plenty of things you might want to do in your dark free-market heart but the public doesn’t want it,” Robert Colvile, director of the Centre for Policy Studies, a Conservative think-tank, told the Economist in February. The pressure is on to deliver a green Brexit, build back better and manage COP26. There are also tensions between the home nations to manage. In Scotland, for example, there is little sign of any appetite for change on the issues causing concern in England, such as EIA and water, says Colin Reid, professor of environmental law at Dundee University. “Maintaining alignment with the EU is the policy.”
Will the UK as a whole do the same? A trade deal, however thin, would hopefully put the EU and UK in a more collaborative space, says Green Alliance’s Williams. “The starting point is not to get any worse.”
“There is no point leaving the EU to keep everything the same”
In a matter of weeks, the UK will leave the single market and customs union. But the extent to which the UK’s environmental protections will diverge from the bloc’s after the Brexit transition period ends on 31 December remains unclear.
As ENDS went to press, there had yet to be a breakthrough in protracted negotiations over a trade agreement with the EU, with no deal still a possibility.
A key sticking point in those talks has been what is known as the level playing field – the degree to which the UK and EU will commit to matching green standards (and other ones) after the end of the implementation period. The EU’s position is that, in order to guarantee the UK the best access to the single market, the level playing field must be maintained when it comes to regulations involving workers’ rights, environmental protection and state aid.
But the UK has – so far – been unwilling to sign up to the Brussels rulebook, insisting that it must be able to set its own standards without any prior approval. Furthermore, agreement has yet to be reached on the definition of the current standards from which both sides say they will not regress, according to reports.
The conclusion of these talks, therefore, will be crucial in determining how far the UK’s green standards will diverge from the EU’s. Yet some degree of divergence appears inevitable – the UK government has made clear its intention to move away from EU green rules after 31 December: in July the environment secretary George Eustice declared “there is no point leaving the EU to keep everything the same”.