Environmental law after Brexit: Breaching the Dam? Part 2: What will be affected?

In the second of our series of four articles on this topic, Emma Dixon considers the principal areas of environmental law which will be affected by Brexit.

Introduction

Last week, Ravi Mehta considered the mechanics of Brexit in the particular context of EU environmental law.  This second article in our series looks at a number of key areas of EU environmental law and regulation and considers how they may be affected by Brexit.

With the UK subject to repeated judgments of the CJEU requiring it to clean up its act (on bathing water, drinking water and clean air, to name but three), it is hardly surprising that, prior to the referendum, a leading group of environmentalists warned that Brexit would return Britain to being the ‘dirty man of Europe’.

The Prime Minister’s announcement that the mechanism of Brexit will involve converting the acquis into British law on ‘Brexit day’, and Ministerial suggestions that the present administration will want to keep EU environmental laws in place post-Brexit, may provide some reassurance.  And, whatever the outcome of the current Article 50 challenge, the Secretary of State for Exiting the EU has recently stated that the government “will have to win a vote in the Commons to change environmental law”.

But the proposed mechanism for Brexit raises more questions than it answers, and nowhere is this more true than in the environmental field where protection is often achieved by a complex mix of international law requirements; ‘primary’ EU law requirements in Regulations and/or Directives; ‘secondary’ EU law requirements in Commission Directives under ‘comitology’ procedures; domestic implementing legislation (under the European Communities Act or otherwise); domestic environmental law; and ‘soft law’ policy and guidance such as (for example) that under the town and country planning regime.

Key areas of EU environmental policy

Environmental protection is required to be integrated into all EU policies and activities, and this is an area where EU legislation has been both prolific and successful in achieving its aims of preserving, protecting and improving the quality of the environment. The environmental acquis is estimated to amount to some 500 Directives, Regulations and Decisions.

Key areas covered by EU environmental law include:

• Environmental Impact Assessment (including both EIA and SEA)
  
• Biodiversity and nature conservation (including the Habitats and Birds Directives as well as CITES)
  
• Product-related measures (including REACH, pesticides regulation, and ecolabelling)
  
• Water protection (including the Bathing Water and Drinking Water Directives)
  
• Air pollution (including the Air Quality Directive and its Daughter Directives)
  
• Climate change (including the EU Emissions Trading Scheme and Renewable Energy Directive)
  
• Waste management (including the Waste Framework Directive and the Regulation on trans-shipment of waste)
  
• That is in addition to other significant areas of EU policy and law with important environmental consequences, including agriculture and fisheries.
  

EU environmental law and Brexit

As the first post in this series has noted, the Government’s proposal is apparently to ‘capture’ the whole of EU law applicable, as Professor Mark Elliott has put it, at one minute to midnight on Brexit eve and to enact it in UK law as Brexit day dawns. As others have pointed out, this is no simple task.  There is no ‘one size fits all’ approach to ensuring the continued application of EU law protections in a post-Brexit world.

Ensuring a coherent and workable system of environmental protection in the UK post-Brexit will be a particular challenge for at least six reasons:

1. The trans-boundary nature of environmental law:  pollution does not respect national boundaries and EU law is designed to take this into account, ensuring a level playing field for businesses operating in the Member States.  An obvious risk of Brexit is that, in the absence of that level playing field, Government will take a less responsible approach to environmental pollution, thus placing UK businesses at an economic advantage at the expense of the environment.
   
2. The evolving nature of environmental standards and requirements:  the standards imposed by EU environmental law are not static.  Rather, they seek to reflect the current state of scientific understanding and, in many cases, to ensure improvements in environmental quality over time.  Thus, legislation is frequently amended and new environmental standards are constantly imposed.  To take just one example, since its enactment in December 2006, the REACH Regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals (1907/2006) has been amended on at least thirty-eight separate occasions.  Thus, that which is up-to-date at midnight on Brexit day will very rapidly be outdated, unless a positive policy and legislative choice is made to ensure compliance in the UK with future requirements of EU environmental law.
   
3. The use of EU Regulations to legislate:  in a number of key areas, particularly those concerned with the environmental consequences of products (eg REACH, the Eco-label, pesticides) and in other areas governed by international law (eg CITES, which relates to the trade in wild animals), the EU has legislated by means of Regulations, which have effect in our domestic law without the need for further transposition or implementation.  Here, unlike in the case of Directives, there will be a need for swathes of new UK legislation merely to capture the existing acquis communautaire.
   
4. The role of the Commission and other European agencies in enforcement:  even in cases where there is existing UK implementing legislation, the Commission and other EU institutions such as the ECHA play a central role in ‘policing’ EU environmental law:  for example, in the ClientEarth litigation about air pollution in London and other large cities, a key issue was the circumstances in which the Commission could grant an extension of time for compliance with mandatory EU air quality standards  As Ciarán McGonagle has pointed out, after Brexit, there may be a need either to transfer these enforcement functions to domestic agencies or even to establish new UK agencies to deal with them.  In some cases this may lead to a real danger of an inferior level of environmental protection since there will be, at the very least, a temptation for Ministers to give themselves the power to grant themselves exemptions from EU law environmental protection standards!
   
5. The role of international law:  finally, environmental protection is an area where international law has a significant and increasing role to play.  From protection of the ozone layer to climate change; from international trade in endangered species to oceans and the law of the sea, even if there is a ‘hard Brexit’, the United Kingdom will continue to be subject to international and trans-boundary requirements.  In some cases (eg CITES), these are currently implemented in the UK via the medium of EU law.  In the future, the UK may be left to plough its own furrow.
   

Conclusion

The fight to protect our environment in the wake of Brexit will be complex and it will be fought on several fronts.  Even among those voting to leave the EU, support for the same or better environmental protection post-Brexit is high.  Environmentalists and other stakeholders, be they lawyers or policy-makers, will need to deploy a range of tools, from lobbying to litigation, to avoid a return to the bad old days. 

Next week

George Molyneaux considers standing, and costs under the Aarhus Convention and the following week, in our concluding article, Isabel Buchanan will consider public law causes of action and remedies in environmental law after Brexit.