Environmental law after Brexit: Breaching the Dam?

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Environmental metaphors are popular when discussing the impact of the law of the European Union (“EU”). One of the most cited is the view of Lord Denning, then Master of the Rolls, in Bulmer v Bollinger (No.2) [1974] Ch. 401, p.418F-G that EU law was “an incoming tide […] flow[ing] into the estuaries and up the rivers” of English law. In a submission to the combined chamber of the French Cour de Cassation in a seminal case about the supremacy of EU law, Administration des Douanes v Société Cafés Jacques Vabre and J. Weigel et Compagnie S.À.R.L. [1975] 2 C.M.L.R. 336, the Prosecutor General cautioned against getting caught in the “reefs of government by the judiciary” (p.367).

With the advent of Brexit, these observations seem particularly timely. But where does this leave the UK’s estuaries and rivers? What, if any, will be the longer-term impact of Brexit on the catalogue of Europe-wide environmental regulations which have progressively increased Brussels’ footprint in UK law?

In a series of articles by four members of Blackstone Chambers, we explore the issues which the UK’s referendum on 23 June 2016 throws up in this area, and indulge in some crystal ball-gazing:

In Part 1 below, Ravi Mehta sets out an overview of the questions raised by Brexit and the likely mechanics in implementing it – currently primed for launch in March/April 2017, and taking effect up to two years later;
In Part 2, Emma Dixon will consider the principal areas of environmental law which will be affected by Brexit and potential difficulties which lie ahead;
In Part 3, George Molyneaux will look at Brexit’s potential impacts on standing and costs; and
Finally, in Part 4 Isabel Buchanan will ask what lies in store for causes of action and remedies in the area of environmental public law cases.

The Consequences and Mechanics of Brexit

So what will happen to EU environmental legislation post-Brexit? At present, this is a great imponderable among imponderables. The debate as to what “Brexit means Brexit” means has been raging in Parliament, and in the courts. This morning, the Government agreed to a motion in the House providing for a parliamentary debate on the Government’s negotiating strategy, while emphasising that its negotiation position must not be undermined. The High Court is due to hear argument on who should activate the procedure for formally leaving the EU (Article 50 of the Treaty on European Union), the Government or Parliament, tomorrow. From the publication of its submissions last week, following an Order of Mr Justice Cranston requiring this, it is clear that the UK Government’s position is that the decision to withdraw from the EU has “been validly taken”, and all that is left is for notification to the EU of the UK’s wish to trigger the Article 50 procedure.

At the Conservative Party’s annual conference last week, the Prime Minister confirmed the Government’s intention to ‘trigger’ Article 50 by the end of March 2017 at the latest. This would set in train the maximum two year period (subject to an exceptional extension by unanimous decision of other EU Member States) for negotiation of the UK’s exit between the UK and other Member States. The Prime Minister also confirmed her intention to introduce a “Great Repeal Bill”, the effect of which will be to take a snapshot of the current position in terms of the substance of EU law incorporated into UK law, allowing Parliament (and Ministers through delegated legislation) progressively to adjust such legislation as it sees fit, following ordinary legislative procedures. Accordingly, the Bill will convert the ‘acquis’ – i.e., the body of existing EU law – into British law, so that “[t]he same rules and laws will apply to them after Brexit as they did before”.

Environmental law and Brexit

Environmental legislation was not specifically considered in the Prime Minister’s speech. The Environmental Audit Committee of the House of Commons had recorded in its majority report in April 2016, prior to the Brexit vote, that “[t]he UK Government is broadly satisfied with EU environmental policy”. Yet prior to the referendum, certain Ministers had expressed the view that certain EU legislation, such as the Habitats and Birds Directives, should “go”. Questions concerning the environmental acquis also feature in the list of 170 questions posed by Labour MPs to the Government (at nos. 59-71).

A month ago, the Committee heard from the Department for Exiting the European Union and the Department for Environment, Food and Rural Affairs on the Government’s intentions for the environmental acquis. The message delivered to the Committee by Ministers was that there would be no difference in the environmental ambitions of the UK following Brexit, that the (at least initial) position was to maintain the status quo and to continue cooperation with other EU Member States on environmental issues. So it appears that this will not be a policy area subject to significant change for the immediate future. Further evidence-gathering sessions are planned by the Committee.

Logistically, however, the “Great Repeal Bill” will need to address the diversity of sources which underlie that acquis – which is particularly marked in the environmental sector:

EU Directives required domestic transposition, and therefore have already led to UK legislation being in place, such as the Habitats Directive, transposed as the Conservation of Habitats and Species Regulations 2010 (in England & Wales). The legal basis for many of these, transposed as statutory instruments, (s.2(2) of the European Communities Act 1972) will be swept away by the Bill and need replacing if this legislation is to be retained;
EU Regulations and Commission Decisions are freestanding, and therefore have no domestic equivalent (for instance, the Pesticides Regulation). They are sometimes designed to establish common scientific standards, and therefore have practical consequences for regulators and private operators (e.g. the Commission Decision on criteria and methodological standards on good environmental status (GES) of marine waters). They are given effect by s.2(1) of the 1972 Act, and therefore a positive decision will need to be taken about what is to be done with them, for instance by inclusion and identification in a Schedule to the Bill giving them continuing legal force, or through the drafting of new UK legislation, which may depart from or mirror the EU predecessor. Careful thought will need to be given to how to carry out this translation given the fact that they are often drafted around European Commission action and based on the assumption of membership of the EU;
Certain EU legislation, such as the 2006 REACH Regulation (Registration, Evaluation, Authorisation and Restriction of Chemicals), applies to non-EU producers who seek to import to the EU market, and will therefore continue to apply in substance to part of UK exporters’ business in any event.
The other practical consideration which will need to be bottomed out will be the channelling of administrative responsibilities to domestic bodies, such as the Environment Agency, where they are currently carried out by the European Commission or EU Agencies.

More interesting, perhaps, is the status of the judgments of the Court of Justice of the European Union (“CJEU”), which though often Delphic in nature, have fleshed out and expanded on the detailed provisions of EU environmental legislation (see, for instance, the European Commission’s summaries of judgments relating to the Habitats and Birds Directives and the Environmental Impact Assessment Directive). These judicial pronouncements have on occasion been criticised either for their lack of clarity or broad interpretation of legislation by politicians and lawyers alike. However, there is no current indication of how the snapshot will work – judgments predating the Brexit ‘moment’ will be part of the acquis, but those relating to periods post-dating it (and potentially addressing legislation in very similar or identical language) will not be: this much, the Prime Minister’s speech has made clear. Will they be persuasive, or merely of comparative/academic interest? Will they be actively ignored? This will depend in part on the “Great Repeal Bill”, and in part on the domestic judicial culture which develops in implementing it.

In principle, with a separate seat in international bodies following Brexit, the UK will be free to deviate from EU positions or approaches to a whole host of issues. In reality, however, in line with the stated intention for the “Great Repeal Bill”, there appears to be little current intention to change the substance of environmental legislation.

This reflects – in part – the fact that the UK’s obligations derive from international conventions which are unconnected to the EU (such as the UN’s Aarhus Convention on Public Participation In Decision-Making and Access To Justice in Environmental Matters), although in practice the UK has implemented many of these treaties at the EU level (i.e. through EU legislation).

However, it also presents challenges and opportunities for the public, non-governmental and private sectors active in this field: even if the body remains the same, there are significant legislative, advisory, litigious and administrative phases before the new structure holding it together is in place. So while the rivers and estuaries may flow as they did before Brexit, there is much rechannelling ahead of us.