Brexit Roundup: Environment – Challenges Lying Ahead

Annalisa Savaresi | 16 April 2018

© 2017 SCER

Brexit’s implications for environmental law-making and enforcement in the UK are symptomatic of the challenges associated with breaking away from the EU. As I have already argued elsewhere, while nobody suggests that after Brexit the UK will turn into a lawless land, the loss of the EU’s comparatively stable regulatory, enforcement and governance frameworks requires that these be somehow replaced, within a relatively short time frame. The same applies to EU funding and cooperation programmes that, for good or ill, presently provide the lifeblood of several UK conservation and research initiatives.

If these challenges were not daunting enough, the allocation of environmental law-making and enforcement powers between UK and devolved administrations after Brexit raises sensitive constitutional questions. The spat over the European Union Withdrawal bill indicates that the UK, Welsh and Scottish governments hold diverging views on who should assume the competences presently exercised by the EU after Brexit. Furthermore, when the unifying frame of EU law is removed, the ensuing fragmentation may well threaten the maintenance of present levels of environmental protection across the UK.

Whoever is in charge of environmental affairs after Brexit, departure from the EU requires a careful rethinking of the very mechanics of environmental law-making, implementation and enforcement. There is precious little time to attend to this complex task, and to secure the continuation of present levels of environmental protection on matters as diverse as habitat and species protection, water and air quality, waste, agriculture and fisheries, and climate change. Space precludes a detailed discussion of specific challenges emerging in all of these areas. This article instead offers some general reflections on the implications of Brexit for environmental protection, as well as recommendations for solutions that may be adopted to address these.

Brexit challenges

Scottish and UK lawmakers presently are largely norm-takers and implementers of EU environmental law and policy in several areas. Furthermore, the UK’s obligations under EU and international law on environmental matters often intertwine. The impact of Brexit will therefore depend on three main variables, namely: the UK’s international environmental law obligations, and the extent to which these obligations are presently implemented by EU law; the degree of environmental governance presently embedded in the EU; and the degree of devolution within the UK on each of these matters.

The EU is party to numerous international environmental treaties alongside, and sometimes in lieu of, its member states. After Brexit, the latter international environmental agreements will no longer be formally binding on the UK. The situation is more complex for so called ‘mixed agreements’ which have been ratified by both the EU and the UK. Here the question is not so much whether obligations enshrined in these instruments will continue to apply to the UK after Brexit, but how. EU law typically implements obligations enshrined in international treaties, covering matters such as product standards, as well as the monitoring and reporting of pollution levels. EU law is however often more ambitious and more stringently enforced than the corresponding international obligations. Ensuring that the repatriation of powers and competences from the EU does not lead to a lowering of environmental protection standards is therefore of the essence. The large-scale recruitment of new staff in environmental agencies has already demonstrated that replacing the regulatory and monitoring functions performed by EU institutions requires considerable investment, as well as capacity-building.

This is especially the case in relation to environmental law enforcement. The EU supranational enforcement machinery – through the work of the European Commission and the Court of Justice of the European Union (CJEU) – has greatly contributed to the enhancement of environmental protection standards across the EU. As recent air pollution litigation has shown, UK authorities are simply accustomed to being under the European Commission’s and the CJEU’s scrutiny, and the threat of financial penalties associated with these. In order to address concerns expressed by civil society, Secretary of State Michael Gove announced a consultation on a new independent statutory body that would hold government to account for upholding environmental standards in England. However, much depends on what powers will be attributed to this body, and its remit of action. The new body is not expected to cover devolved administrations, which will have to find their own solutions for addressing concerns over the enforcement of environmental law after Brexit.

Finally, the question of the allocation between the UK and devolved administrations of repatriated powers presently exercised by the EU is the most sensitive. This allocation requires a strategic decision on who will be doing what after Brexit, and pursuant to which rules. The Joint Ministerial Committee communiqué of October 2017 does not provide a definitive answer to this question. After the spat over the EU Withdrawal bill, in March 2018 the Scottish parliament passed the so-called legal continuity bill. The bill reasserts the competence of the Scottish parliament on environmental matters, making specific reference to the principles of EU environmental law (part 5A). In spite of proposed amendments to this effect, these principles are not mentioned in the EU Withdrawal bill. This may be but the first of potentially many future differences between environmental law and policy passed by Westminster and Holyrood after Brexit.

Presently, EU environmental law principles do not have practical legal force, unless they are transposed into secondary law. The reference to principles in the continuity bill is therefore likely to have only a modest impact on Scottish environmental law and policy after Brexit. Yet, in the coming years, national decision- and policy-makers and regulators will enjoy more discretion over environmental matters than they currently have. This enhanced discretion will be coupled with greater lobbying from vested interests and stakeholders than is the case at the moment. Anchoring EU principles in Scottish law therefore potentially has some importance. Ultimately, much depends on the Scottish courts’ willingness to give environmental principles sufficient legal weight to determine the outcome of judicial decisions over the adequacy of environmental law and policy, and of its implementation by public authorities.

Tackling the Brexit challenges

Brexit confronts environmental protection with a set of complex challenges which need to be tackled within a short time frame.

Firstly, Brexit necessitates a constitutional reflection on which institutions are best positioned to do what, and how. Given environmental law’s composite nature, no one-size-fits-all solution for all areas is likely to be feasible, or even desirable. Instead, present environmental governance arrangements should be looked at lucidly, establishing how they will be affected by Brexit, and what would be the most effective and sensible way to reform the ones which need replacing. In some areas, where transboundary issues are at stake, the need for some UK-wide coordination seems obvious. For example, Secretary of State Michael Gove has said that there is potential for a discussion about whether air quality should be maintained by common UK-wide rules. Brexit, however, also provides an opportunity to go beyond the status quo and its discontents. The Scottish government could, for example, request greater devolved powers to effectively exercise its competences after Brexit. As already discussed elsewhere, these powers may include some legal capacity to enter into international agreements addressing specific Scottish interests, such as fisheries.

Secondly, the UK and Scotland should try to remain involved in regional bodies dealing with cooperation and capacity-building on environmental matters, such as the European Chemicals Agency. Indeed, the UK parliament’s Exiting the EU Committee has already indicated that continued UK membership of selected EU agencies will be one of the criteria by which it will judge the political declaration on the future relationship between the EU and the UK.

Lastly, new avenues to maintain high levels of supervision on the implementation and enforcement of environmental laws should be explored, giving consideration to proposals coming from civil society – which include, for example, the establishment of a specialised environmental court, or an ombudsman. Devolved administrations could furthermore be empowered to keep the UK government under scrutiny, in the context of the exercise of the sweeping ministerial powers envisioned in the EU Withdrawal bill. These actions would assist in ensuring that the UK lives up to its promise to deliver a green Brexit.

This piece draws on an article in the Edinburgh Law Review, which itself builds on the author’s contribution to the 2016 SULNE report on Brexit, Scotland and environmental law. The views expressed here are this author’s alone.

Annalisa SavaresiAnnalisa Savaresi

University of Stirling

Dr Annalisa Savaresi is Lecturer in Environmental Law at the University of Stirling. She has experience researching, teaching and working with environmental law. Her research focuses on climate change, environmental liability and the interplay between environmental and human rights law.