July 09, 2019

The impact of Brexit on environmental law in the UK

Simon Tilling and Ben Stansfield

Brexit—the United Kingdom of Great Britain and Northern Ireland’s (UK’s) proposed departure from the European Union (EU)—will undoubtedly have an impact environmental law and protection in the UK, and many fear it would be for the worse. But it should nevertheless be said that Brexit has stimulated a healthy and vibrant debate on what the UK might achieve once environmental policy and law is back in its own hands. In this article, we look ahead to what might happen, if, and when, the UK exits the EU (at the time of writing, the UK is still “in,” just!).

We need to start, of course, by explaining the options for exiting the EU. There is a spectrum of outcomes, ranging from a no-deal exit through to remaining a full member of the EU, possibly after another referendum. In between these two options is a “deal”—whether that’s the deal championed by Prime Minister Theresa May, or something else—in which a new relationship between the UK and the EU is created. There is currently no Parliamentary majority for a no-deal Brexit or a second referendum and much disagreement as to what the deal should look like (much of which results from Northern Ireland, which has the only land border with the EU)—as a result Parliament is in deadlock.

Notwithstanding that Parliament has stalled, the UK government still has work to do and the Department for Environment, Food and Rural Affairs (Defra) has been in hyper-drive setting out its vision for environmental law and policy after Brexit. It is no coincidence that Defra’s leader, Secretary of State Michael Gove, was a proponent of leaving the EU and sees his Ministry as a platform for promoting a positive vision of life outside the EU. Mr. Gove can sense the public’s mood, and the conversations around #GreenBrexit have tapped into a well of growing environmentalism in the UK.

In addition to proposing new policies, Defra and its related agencies have been planning for a no-deal Brexit, drafting close to one hundred pieces of secondary legislation to ensure a legislative “business as usual” regime in the UK.

A full review of the implications of Brexit on environmental law is well beyond the scope of this short article. Instead, we have selected four areas of environmental law that illustrate some wider points around the difficulties the UK faces in attempting to disentangle over 40 years of UK and EU environmental law.

The EU as a single market: REACH

There is no better illustration of the practical difficulties of Brexit than the regulation of chemicals, which in the EU is as much about protecting the integrity of the single market as it is about protecting human health and the environment.

The UK has willingly participated in an EU system for decades and has no independent system of its own. As a result, Brexit has been a major headache for the chemicals industry and those who rely on chemicals because, in a no-deal Brexit world, businesses would need to comply with two near-identical regimes of registrations and authorizations, rather than just one.

The big complaint about the EU’s flagship chemicals regulation, Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), is that it achieves its aims through placing a heavy burden on businesses. Having a duplicate regime only compounds that burden. To make matters worse, the rush to get a UK-REACH into place resulted in several errors and mistakes in the UK legislation. The glitches are being fixed, but it does little to inspire confidence.

The EU as a player on the global stage: The EU Emissions Trading System

Another difficult question arises for the UK’s participation in the EU Emissions Trading System (ETS). The EU ETS is modelled on its UK-only precursor, the UK ETS, and was intended to be the seed from which a global trading system could develop. EU ETS is much less about protecting the single market and much more about the EU leading the charge on global carbon reductions.

If the UK leaves the EU with a “deal,” the UK will stay in EU ETS for the transition period. Thereafter, the UK proposes to implement a carbon pricing system “of at least the same effectiveness and scope” as EU ETS, but the details have not yet been published.

If the UK withdraws from the EU with no deal, then participation in EU ETS will cease. In this scenario, EU ETS will be replaced in the short term by a domestic carbon tax (£16 per tonne), with the longer-term goal of instituting a replacement market–based emissions trading scheme. UK installations previously in receipt of free EU ETS allowances would continue to enjoy equivalent benefits under this carbon tax.

Longer term, a revised UK ETS could link with the EU ETS, just as the Swiss are doing now, but that will be far from straightforward.

The EU’s role in setting common goals: The Birds and Habitats Directives

Biodiversity improvements and habitats creation are often cited as great successes of the EU’s environmental policy. Since the adoption of the Birds Directive in 1979, followed by the Habitats Directive in 1992, the EU has protected, conserved, and enhanced the natural capital within its Member States: currently over 18 percent of the EU’s territory is designated as a protected area for nature.

In the UK, we have a complex tapestry of legal protections for habitats and species, designated locally, nationally, by European law, and by international conventions. We protect cold-water coral reefs, saltmarshes, and mountain summits; and dunes, grassland, rivers, and woodland, which are together home to thousands of species.

Currently, much of the Brexit planning in the UK is concerned with preparations for a possible no-deal (see above) and there seems little political appetite, let alone time, to consider cuts to the scope of environmental law in the UK as part of those Brexit-planning legal changes, or indeed in the short-term following Brexit.

There is, however, a growing concern that future governments may want to deregulate. In that scenario, protected habitats and species may find themselves an easy target, with rules relaxed to enable development to proceed in areas that would otherwise be protected.

The EU’s role as enforcer of environmental standards: The Office for Environmental Protection

The European Commission has a critical governance role, having the power to act against its Member States where they have infringed EU law. So, if the UK leaves the EU, who will “police” the UK government in place of the Commission? The answer lies in the proposed establishment of the Office for Environmental Protection (OEP).

At the end of 2018, the government published a draft Environment Bill, containing proposals to establish the OEP and setting out its powers. It is expected that the bill will be introduced later this year and receive Royal Assent in early 2020, although realistically the OEP may not be running until late 2020 at the earliest.

The OEP will be a body independent of Parliament and will hold the government and public bodies to account on environmental matters. The OEP will scrutinize and report upon progress made in improving the natural environment and will monitor and report upon the implementation of environmental law. In all cases, the government will be obliged to respond to the OEP’s findings, as it does with recommendations made by the UK’s Committee on Climate Change.

The OEP will have powers to investigate public bodies for failing to comply with environmental law and it will issue decisions and take legal action to ensure compliance. This is a wholly new area of regulatory oversight in the UK and the questions of how willing the OEP will be to use its sharp enforcement “teeth” and how the UK copes with another layer or regulation remain to be seen.

Conclusion

Three years ago, we feared that environmental issues would be lost in the maelstrom of Brexit negotiations, but fortunately this hasn't been the case. Lawyers at Defra have worked tremendously hard to ensure “business as usual” in the event of a no-deal Brexit, and policy managers have pumped out a number of impressive papers in recent months proposing changes to the UK’s waste, air quality, and packaging regimes. This is a time of great potential for change for UK environmental law, and there is a lot of work to do for UK’s environmental lawyers, whatever the route forward.

Simon Tilling and Ben Stansfield

Simon Tilling is a partner at Burges Salmon LLP and vice-chair of the UK Environmental Law Association (UKELA) and Ben Stansfield is a partner at Gowling WLG (UK) LLP and chair of the UKELA Conference 2019. They spoke on Brexit and environmental law at the Section of Environment, Energy, and Resources’ 48th Spring Conference in March 2019.