With the UK’s departure from the EU imminent, the Government face a mammoth task in conquering the challenges which lie ahead. The EU has played a vital role in shaping UK law and policy, developing it in such a way that significant improvements have been made since the early 1970’s. It is therefore no surprise that the Government’s ambitious 25 Year Plan has been met with much scepticism.
This essay will begin with a non-exhaustive analysis of why Brexit may in fact be progressive for the environment. The predominant argument here is that Brexit will push for the clarification of legislation and grant the UK with freedom to advance domestic law.
Nevertheless, as I will argue, the view that improvements to the environment will be made easier as a result of Brexit is essentially theoretical and optimistic. In practical reality, the extensive workload necessary to overcome the complex challenges will cripple any opportunity for progression. Moreover, on the contrary, not only beyond this, not only may advancement of the state of the environment be made more difficult by virtue of Brexit, there lies the possibility that UK legislation may actually stagnate or in fact and become regressive. This is because, as Fisher suggests, environmental law is an inherently multi-jurisdictional and transnational enterprise, and so, co-operation is mutually beneficial to improve environmental standards. In light of this, the Government’s ambition to leave the environment in a better place than they found it will, in reality, be made more difficult as a result of Brexit.
An Optimistic Approach
As Burns submits, it is in fact extremely difficult to find the true correlation between EU membership and the progression made over time to UK environmental standards. This is primarily because these improvements are often due to numerous factors which are difficult to disentangle; therefore, it is not always possible to say with complete certainty that developments would not have happened over time regardless.
In fact, the UK has actually provided integral pivotal leadership in some key policy areass of environmental policy; for example, the UK. A key example of this is the UK’s input to EU climate change policy, in which the UK’s 2008 ’s 2008 Climate Change Act has been particularly significant in forming EU climate change policy. Therefore, in respect to climate change, it has been argued that the loss of EU climate regulatory schemes which aid in achieving carbon budgets could result in domestic governmental structures assuming responsibility. As such, Brexit may represent a real opportunity for more innovative climate governance in the UK by freeing it from a pan-European framework which is not necessarily fit for domestic purposes.
Brexit may, thus, act as a catalyst for environmental improvements by encouraging clarification of legislation currently is scattered across various EU Directives and regulations. By As the EU’s reigns on the UK to loosening, the Government may be able to embrace a more forward-thinking approach and adopt more comprehensive domestic policies. This could provide an opportunity to move away from the economic market-based policy which presently acts as a driving force behind EU environmental protection. By potentially rejecting the intrinsic economic agenda of the EU, UK environmental policy could be liberalised to enact a philosophy more respectful of natural resources and habitats.
Why should we doubt this view?
Whilst these arguments stand some ground, there are in fact some indications that the view that improvements will be made easier as a result of Brexit is unrealistic. Whether or not the Government chooses to adopt the ‘Norwegian model’, a more distanced kind of ‘Canadian model’ or a ‘no deal’ approach, Britain will encounter a number of challenges which present as stumbling blocks to the Government’s targets.
For one, the European Communities Act 1972 (ECA) has thus far provided a legal basis for the application of EU law. Once this is repealed, EU legislation within the UK becomes invalidated. In order to combat this, the Government have proposed that the Great Repeal Act will be enacted on “exit day” to restore the legality of instruments, previously rooted in the ECA, by converting them into primary law. In order to bring ‘the whole body of existing EU law’ into UK law the day we leave, the Government have indicated that a ‘copy and paste’ approach will be adopted, transposing EU legal instruments via a ‘continuance clause’. This, however, raises a number of issues.
Crucially, this approach will not directly transpose all EU legislation into UK law without further intervention. Therefore, careful scrutiny of regulations to identify those viable outside of the EU context will be required; in particular, those regulations which necessitate some form of EU involvement or authorization. Providing a clear example, the field of EU chemicals law is almost entirely compromised of regulations set out by the REACH programme. In a report carried out by the UK House of Commons Environmental Audit Committee (EAC), it was found that creating a domestic system to mirror REACH would be extremely complex and expensive for both the taxpayer and the industry. Yet, without translation of these substantive provisions, the UK risks regulatory uncertainty. Consequently, the EAC suggested that some cooperation should be maintained with the single market, at least if anything, to retain access to registration under the REACH programme. As Haigh further suggests, if the Government were to attempt to create an entirely new chemicals agency to replicate the European Chemicals Agency (ECHA) in the scenario that cooperation was not maintained, the UK would suffer major administration costs, jeopardize regulatory coherence and face complexities in regard to trade.
At the very least, transposition post-Brexit will generate some level of ambiguity. At the very worst, Brexit could strip away the entire infrastructure upon which regulatory provisions are founded. This is a complex challenge that the Government will need to overcome prior to fulfilling any ambition of leaving the environment in a better state than it was found.
The lack of clarity regarding accountability for environmental standards post-Brexit has certainly raised alarm. Dubiously, the ‘continuance clause’ does not specify whether a mechanism for fining central Government or its agencies will be introduced; whilst the White Paper does provide that the power to correct the law would allow the Government to amend our domestic legislation to ‘replace the reference to the Commission with a UK body’, the likelihood seems a mere possibility. This is shown by the fact that, despite the House of Lords EU and Energy and Environment Sub-Committee’s report finding that evidence strongly suggested that ‘an effective and independent domestic enforcement mechanism will be necessary’, the Government have insisted that the current mechanisms of judicial review and parliamentary scrutiny are adequate.
Moreover, even if a replacement body were to be mirrored by the UK, it is unlikely to have the same proficiency as its EU equivalent. Case law emanating from the European Court of Justice (CJEU) currently plays a vital role in filling the gaps when EU legislation is imprecise or new issues arise. Therefore, the risk is that, without reference to the CJEU’s interpretations and judgments, UK courts may be able to interpret EU law in a different and less rigorous way, potentially weakening environmental protection entirely.
This may be the case, for example, in respect to UK air quality. During the early stages of EU membership, the UK was known as ‘the dirty man of Europe’, suffering from extreme pollution which resulted in issues such as acid rain and premature deaths. The impact of the EU on this area has been immense, shown by the fact that sulphur dioxide emissions decreased by 94% by 2011. The UK has still, however, persistently exceeded the EU maximum emission levels determined by the Ambient Air Quality Directive. As a result of this, proceedings were brought against the UK in the case of Client Earth, in which it was found that the UK was in breach of its obligations under EU law. Since the UK’s air quality standards are clearly dependent on enforcement of EU law, without an overarching body with the ability to take steps akin to the Commission, the UK will be able to set the bar to its own lower standards. Those in support of this view were recently provided with their reinforcing evidence as the Government admitted in the Administrative Court that the reason that the preferred target date for compliance with the air quality directive was 2020 was because it was the earliest date possible for the EU Commission to impose infraction fines against the UK. Clearly environmental well-being in this respect has not been at the forefront of the UK’s priorities.
The Government has, however, proposed that key environmental principles will be introduced in both the legal context, via primary legislation, and through policy context, whereby environmental principles are supported by ‘policy statements’ which the Government must have reference to. This seems to replicate the approach taken in Fisherman and Friends of the Sea case. Here, rare judicial consideration was given to the polluter-pays principle, which founded a successful argument brought by an environmental non-governmental organisation. Although this case cannot act as precedent beyond the jurisdiction of Trinidad and Tobago where it was contested, it does potentially offer some guidance to a post-Brexit Britain in which environmental principles may gain greater legal prominence.
However, in reality, these principles mandate very few concrete outcomes. Instead, their significance lies in the fact that they often give rise to procedural requirements, such as risk assessments and participatory procedures. Therefore, whilst in theory the promotion of key environmental principles into a legal context is somewhat promising, this development on its own will not bandage up the wound left open by Brexit.
The involvement of newly devolved administrations in the process of transposing, repealing and amending EU legislation into domestic law post-Brexit is yet another challenge.
Whilst at first it is likely that the vast quantity of EU law will be retained, over time differentiation between devolved administrations may occur; especially where administrations adopt more ambitious agendas or perhaps support a more market-driven approach.
Even prior to Brexit nations have shown divergent views on environmental matters. While England is dominated by a strong deregulatory tone, particular focus has been placed on renewable energy in Scotland and Northern Ireland, whilst Wales has strongly prioritised the principle of sustainable development. With the potential loss of the powerful regulatory tone of the EU, devolved administrations may be able to exploit their new-found freedom to match their own political agendas and environmental priorities.
Devolution may therefore significantly impact areas of transnational concern; this is primarily because these areas require a great ddeal of cooperation as responsibilities are largely shared between nationsas. Thus, where there is transnational concern – for example, in the field of biodiversity – great impact could be had. For example, b Both the UK and EU share competences for conservation and, whilst England and Wales both establish sites of special scientific interest, the EU adds a further layer of protection by identifying special protection areas (SPA’s) for migratory birds and special areas of conservation (SPC’s) for habitats other than for wild birds. Determining a site as a SPA or SPC results in further constraints through the requirement that, prior to any development, there must be an environmental impact assessment. However, by Brexit removing this layer of safeguarding, independent nations will be able to subjectively determine which sites are of particular interest for conservation, potentially risking the endangerment of a number of sites previously recognised as a SPC or SPA.
Furthermore, devolution also presents Britain with the critical issue of capacity. Whilst each nation may in fact have authority to manage their own environmental matters, the capacity of each nation alone to develop independent policy and law in all matters of environmental protection lacks in terms of scientific expertise and civil service resources. Currently, the EU actively promotes and facilitates cooperation between nations on environmental research and development. Access to the EU’s funding and dynamic web of research undoubtedly supports the advancement of environmental law in the UK; without this, Britain could potentially fall behind. Therefore, upon negotiating the terms for withdrawal from the EU, it is vital that the UK prioritises active participation in both the Horizon 2020 programme – the biggest EU research and innovation programme to date – and in the work of vital European agencies, such as the European Chemicals AgencyECHA and the European Economic Area. Access to invaluable expertise and research in these key areas may aid the UK in mitigating the gaps which are likely to appear in domestic capacity post-Brexit.
Contrary to the view that Brexit will empower the Government by granting freedom to achieve their desired ambitions, divergent environmental standards risk constituting trade barriers between nations. In order to maintain such a strong and imperative trade relationship with the EU, the UK may be forced to align any new regulatory standards with EU provisions. As Macrory argues, Brexit is unlikely to give the UK free rein over environmental law – the UK’s green laws have been developed over time through the ratification of over forty international treaties to which the UK and the EU are both signatories. These agreements comprise of a multitude of vague competences on part of both the UK and the EU. It is therefore likely that, despite leaving the EU, the UK will in fact still be bound by a number of non-EU obligations entangled within these treaties. The argument, therefore, that the UK will be free to set its own bespoke environmental regulations to fulfil its environmental ambitions, seems idealistic.
The Practical Reality – a troubled Britain post-Brexit
As Scotford suggests, post-Brexit challenges reflect some fundamental normative and institutional issues. What might prevent the Government from achieving their ambition is the sheer legal task of converting and disaggregating the vast, convoluted EU environmental acquis into ‘sovereign’ law. The concern is that the challenges which are heavily entangled within this complex task may expose a governance gap; as Reid argues, the simple ‘copy and paste’ approach favoured by the Government is not viable – for example, where environmental law is guided by and relies upon institutional structures, enforcement mechanisms and the EU’s substantive environmental law. The enormous workload caused by the loss of the EU framework of planning, research, reporting and accountability puts at jeopardy the coherence of UK environmental law. To combat this, the UK would in reality need to develop a body of domestic environmental law that accommodates various levels of governance locally, transnationally and internationally.
The practical reality is that there may in fact be regression in terms of environmental protection. The extensive effect of EU membership is perhaps most clearly exhibited through the estimation that 80% of all UK environmental law originates from the EU. In a broad respect, the collaborative aspect of EU membership has benefitted Member States by advancing air and water cleanliness, species protection and conservation. It is no surprise, therefore, that there is a general consensus that EU membership has positively impacted UK environmental law.
Moreover, despite claims that Brexit provides an opportunity to improve the environment through new legislation and initiatives, this freedom already exists. Whilst membership to the EU does present some obdurate constraints, for example because of public procurement, there is little evidence to prove that it in fact inhibits the UK from setting even more ambitious targets.
The conclusion is therefore that, on balance, the possibility for genuinely positive change is far outweighed by the challenges facing the UK. By operating on the fringes of the EU, the UK will lose the advantages of working within a collective network with a mutual ambition to achieve greater environmental protection. Whilst in theory Brexit may provide an opportunity for the UK to advance environmental protections, Britain’s track record does not exactly suggest this will happen. And so, we are only left to fear the adverse effects that a lack of willpower to ensure higher standards across the UK may have in years to come.
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