Post-Brexit Uncertainties in UK Environmental Law

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A view of Edinburgh. Courtesy of https://pixabay.com/en/edinburgh-arthur-s-seat-hills-seat-2147873/

On March 29th, 2017, British Prime Minister Theresa May delivered the Article 50 notification that formally initiated the so-called Brexit process, which means that the UK will now have two years to negotiate its withdrawal from the European Union (EU). In addition to leaving EU establishments, like the common market and the jurisdiction of the European Court of Justice, the UK will have to grapple with extricating itself from a system that has shaped its governance for decades. Immediately following the triggering of Article 50, the UK government released a white paper on the proposed “Great Repeal Bill,” which broadly envisions transposing thousands of EU-created regulations into British legislation to maintain some form of continuity and legal certainty, with the idea that the government would revise or repeal aspects of this legislation at a later date.

 

In particular, the European Union has played a large role in the evolution of environmental law. For example, the EU structure allows common standards across member states for wildlife trafficking, and enables countries to share data on environmental issues.  A parliamentary report found that 80% of environmental law in the UK has been shaped by the EU, which has over 800 pieces of environmental legislation. By leaving the EU, Britain will face four challenges on the environmental law front: first, a loss of funding from EU-level environmental programs; second, in integrating former EU directives that cannot easily be rolled into British law; third, the effect of EU law on UK court interpretations; and finally, devolution, or the delegation of power to local authorities on environmental issues.

 

First, in addition to losing sections of its environmental law, the UK would furthermore lose public funding from EU sources for environmental and agricultural programs—for example, the Common Agricultural Policy (CAP) provides major subsidies to Britain’s farming industry, as well as land management regulation and trade barrier controls.

 

Second, the UK would have to take action to preserve legislation that is currently only on the EU level. There are two main methods by which EU law affects its Member States: EU directives require individual States to implement legislative objectives via national legislation, while EU regulations are legislative acts of the EU Parliament that apply directly to all Member States. Whereas EU-driven directives  are transposed into British law and can remain in place, commentators have warned about the prospect of “zombie legislation,” where holdover laws are no longer enforced or updated due to minimal oversight or lack of an appropriate agency. Laws created to transfer EU rules must also be reviewed carefully for references to other EU legislation or institutions, particularly where no substitutable definition has been incorporated into the relevant domestic law.

 

About a third of environmental law cannot be very easily rolled over by enacting identical domestic legislation. The Birds and Habitats directives, for example, were targeted at biodiversity conservation, establishing protected areas and reporting requirements across EU member states. While the UK could work to develop an equivalent program that would retain the environmental protections established by these directives, there may be backlash and resistance to re-imposing rigid demands as it conflicts with the pro-Brexit platform’s call for increased national freedom. With the time pressure of re-negotiating borders and market issues before the two year time period imposed by Article 50 expires, environmental concerns could also fall to the wayside entirely, with the risk that UK environmental standards will decline. Nevertheless, not all environmental issues will encounter the same level of turbulence. Prime Minster Theresa May’s government has previously expressed support for remaining in the EU’s Emissions Trading System (ETS) even after Britain leaves the EU. Several non-Member States also participate in the ETS, including Iceland, Liechtenstein, and Norway, so there is already precedent for the UK to be able to continue its participation.

 

A third issue is how courts will treat remnants of EU law in Britain. Under the European Communities Act, Member State courts must consider precedent from the European Court of Justice and other applicable EU provisions when interpreting law with EU origins. Post-Brexit, courts will be left with case law and statutory interpretations with references to and consideration of EU law, even though the UK will no longer be under ECJ jurisdiction. On the environmental side, the lack of ECJ and European Commission oversight means that transposed EU law will need a new enforcement body. This position will fall to the UK’s Supreme Court. Previously, the Commission was able to bring infringement cases against the UK for violations of various environmental laws to ensure compliance. Following Brexit, the UK’s Supreme Court will have to deal with domestic enforcement issues of the transposed laws through the process of judicial review, albeit with significantly less power than the ECJ, like the ability to impose fines.

 

Finally, the issue of devolution is particularly important in the environmental context. Devolution refers to the creation in 1999 of executive and legislative bodies in Scotland, Wales, and Northern Ireland, with powers extending to most environmental and agricultural matters. However, EU law has largely restricted extensive freedom for the regional authorities on this front, due to the requirements for common standards at a national level within the European Union. Brexit opens the possibility that major environmental decision-making capabilities and divergence from a unified standard are not only possible at the national level, but also at the regional level.

 

After Brexit, the UK will no longer have a voice in the development of new EU environmental policies. Defra, the UK Department for Environment, Food & Rural Affairs, has advocated for a new Environmental Protection Act to be passed before leaving the EU, as well as for the maintenance of EU standards and programs for environmental protection. However, even a comprehensive set of legislation cannot completely solve what may be an evolving set of legal issues in the future. Nevertheless, how Theresa May’s administration negotiates with the EU and how it deals with the reconciliation of EU law and UK law during the Article 50 withdrawal period will be a major focus for the future of environmental regulation in the United Kingdom.

As the UK begins its official withdrawal from the European Union, maintaining current levels of environmental protection will be a major challenge.