Defining Withdrawal: Brexit and the “Level Playing Field” for Environmental Regulations

The potential withdrawal of the United Kingdom from the European Union poses a serious risk to the regulatory system of the European Union as a whole.

By: Daniel Loud, Staff member

Beyond the considerable domestic political uncertainty it has caused, the United Kingdom’s forthcoming withdrawal from the European Union has also caused a considerable amount of uncertainty for Europe’s regime of environmental regulations, which are currently among the strongest on the planet. A great deal of this uncertainty stems from the open question regarding the standard to which the United Kingdom’s own environmental regulations will be held if and when Brexit finally occurs. Ahead of the upcoming general election on December 12, this article summarizes the basic possibilities for what the United Kingdom’s environmental regulations, and indirectly the environmental regulations of Europe as a whole, may look like following Brexit.

Much as in the United States, a great deal of environmental regulation in Europe occurs at the “federal” level, namely through the governing bodies of the European Union. Article 25 of the Single European Act of 1986, a major revision to the original authority of the European Union under the 1955 Treaty of Rome, expressly provided the body with the authority to pass environmental legislation. Today, environmental regulation by the European Union serves to set minimum standards for all member states, which those member states must either meet or exceed according to their own discretion. This system, while flexible, has allowed the twenty-seven member states of the European Union to abide by uniform minimum environmental standards. That uniformity, in turn, has helped to alleviate the member states’ concerns about taking on an economic disadvantage by enacting stronger environmental regulations than other member states.

Due to the manner in which Europe’s environmental regulation is structured, the potential withdrawal of the United Kingdom from the European Union poses a serious risk to the regulatory system as a whole. The British economy is the second largest in Europe by GDP, and for that reason a significant deregulation of the British economy would both greatly diminish the effect of Europe’s current standards and put the other economies of Europe at a significant disadvantage. With good reason, European officials fear that this may cause a regulatory race to the bottom that would leave the environment and any other de-regulated areas (such as labor) considerably worse off. This issue was certainly on the minds of the negotiators for the United Kingdom’s Withdrawal Agreement with the European Union: indeed, one of the most prominent issues in negotiations was the insertion of some “level playing field” provision that would require the United Kingdom to continue observing some minimum standard of regulation in a variety of areas, including the environment.

Until recently, there were essentially two possibilities for what a level playing field provision may look like in the final Withdrawal Agreement. The first possibility, regulatory alignment, would require the United Kingdom to maintain the same minimum standards as the rest of the European Union. The second, non-regression, is a less burdensome option that would require the United Kingdom to maintain the environmental standards of Europe at the time of withdrawal, but would not require it to follow future developments. Prior agreements negotiated by Theresa May’s administration took the form of a non-regression agreement, wherein the United Kingdom made a binding promise to maintain the European Union’s minimum standards in a variety of regulatory areas, including environmental regulations. It also included an enforcement mechanism, allowing for proceedings against the British government both by public authorities and private citizens in the British courts if the government failed to live up to its obligations under the agreement.

Under Boris Johnson’s administration, however, the Withdrawal Agreement has been considerably watered down with respect to the level playing field provision. Nominally, the Agreement maintained a level playing field provision that relied on non-regression. However, instead of appearing in the body of the Agreement the level playing field provision was relegated to an accompanying Political Declaration. In Article 77 of the Declaration, the United Kingdom stated its intention to “maintain environmental, social and employment standards at the current high levels provided by the existing common (European) standards.” Any provisions pertaining to enforcement of the Political Declaration, including in the declaration itself, were removed.

Nonetheless, there is some indication within the text of the Withdrawal Agreement itself that the parties intended to be bound by the level playing field provision. Article 31 of the Withdrawal Agreement requires that all negotiations regarding the future relationship between the United Kingdom and European Union following Brexit be consistent with the Political Declaration, presumably including Article 77. For these reasons, while it is clear that the Johnson Administration’s version of the Withdrawal Agreement provides considerably weaker assurances of continued environmental regulation according to the current standards, there is still some uncertainty over what role the level playing field provision will play in forming Britain’s environmental regulations after Brexit.

The final shape of Britain’s environmental regulations after Brexit will, ultimately, be decided in the next few months. While Boris Johnson was able to receive Parliament’s approval for the substance of his Withdrawal Agreement, Parliament did not approve his plan to expedite the bill into law, forcing the United Kingdom to receive another extension on its withdrawal until January 31, 2020. In response to this legislative failure, Boris Johnson has called for a general election on December 12. This election will ultimately determine how and to what extent Britain is bound by the European Union’s environmental standards. If the conservative Tory Party maintains its majority in Parliament, Britain will likely complete its withdrawal with the non-committal and apparently non-enforceable version of the level playing field provision. If, on the other hand, the liberal Labor Party wins a majority, Parliament and the new Prime Minister will very likely try to return to a more binding form of non-regression that was present in Theresa May’s earlier Withdrawal Agreements. While the Tory Party currently leads Labor in the polls by a margin of about ten percent, polls have been particularly volatile over the last year and therefore it is difficult to predict what the outcome of the general election will be. Ultimately, Europe and the rest of the world will likely not fully know the prospects of the level playing field until the votes are counted on December 12.

Daniel Loud a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. Daniel graduated from the University of Pennsylvania in 2018 with a B.A. in International Relations.