Post-referendum implications for environmental law—an academic perspective

Post-referendum implications for environmental law—an academic perspective

EU environmental law often confers rights on individuals that they can enforce before their national courts, but what happens if we trigger article 50 of the Treaty on the European Union (TEU) and leave? Andy Jordan, professor of environmental sciences, and Dr Viviane Gravey, associate tutor at UEA, and Dr Charlotte Burns, senior lecturer at the University of York, talk us through the likely scenarios.

What is the process for withdrawing from the EU?

Since the adoption of the 2009 Lisbon Treaty there has been an official process for withdrawal. It is contained in TEU, art 50. It is up to the Member State intent on leaving the EU to initiate the withdrawal process, and for the European Council to negotiate a withdrawal agreement with the departing state. This withdrawal agreement could set out the terms of the departing state’s future relationship with the EU or this could be set out in a separate agreement.

What practical steps will the UK government take given the result to leave the EU?

There was no consensus within the Leave campaign about what a UK after Brexit would look like, or the UK’s preferred trading relationship with the EU. An immediate priority for the leave camp is to agree a new vision for the UK’s relationship with the EU which may inform the Conservative leadership election, a UK wide general election and/or even a second EU referendum. There are some legal commentators who argue that a decision to trigger TEU, art 50 would have to be sanctioned by the UK Parliament, although others believe that this could be triggered by the government acting under the so-called royal prerogative.

What are the short-term implications for environmental law of the result to leave the EU?

Until the UK exits the EU, EU environmental law will continue to apply in the UK. How will the UK and the other 27 Member States behave in the renegotiation? Will they collaborate? Will they conflict? It is very unclear at the present time. However, it is very likely that the UK’s negotiating power will diminish steadily over time, although how quickly and by how much is unclear. Key UK actors have already stepped back—the UK Commissioner in Brussels, Jonathan Hill, has announced that he will leave the college of commissioners in July 2016 and MEP Ian Duncan, rapporteur for the reform of the emission trading system, has resigned his rapporteurship.

Reduced UK engagement with the EU decision-making process is likely to have short-term implications at EU-level, for the on-going revision of EU law on circular economy and air policy—two policy areas where the UK has opposed more ambitious action. It will also impact the revision of the emissions trading system as well as the forthcoming revision of the effort sharing decision. On these two dossiers, the UK has been a leader in the past.

What are the likely scenarios/options for the withdrawal agreement and what could this mean for our relationship with environmental law stemming from the EU?

The two principal scenarios are the (least disruptive) Norwegian scenario with EFTA/EEA membership and the (more disruptive) free trade scenario (either under a specific EU-UK agreement or under general WTO rules). Under the Norwegian scenario, most EU environmental law would continue to apply, but there would be changes regarding decision-making—the UK would lose its voting rights and hence its policy shaping ability—and enforcement. The application of EU law in EFTA/EEA countries is under the supervision of the EFTA Court, although due to the principle of ‘homogeneity’ which requires an homogeneous interpretation of EU and EEA law, the Court of Justice of the European Union remains the de facto interpreter of EEA law.

Different procedures would, however, apply—there is no preliminary ruling procedure, the EFTA Surveillance Authority is less active than the Commission in pursuing infringements and the EFTA Court cannot impose penalty payments or lump sum payments on a non-complying state. Nonetheless, the principle of state liability for damages for breach of EEA law does apply.

Under the free trade scenario, directly applicable EU environmental laws which have not been incorporated into national law (eg regulations) would cease to apply when the European Communities Act 1972 (ECA 1972) is repealed (assuming no legislation to maintain their effects is adopted in the UK). The status of Directives (the lion’s share of EU environmental legislation), transposed in the national legal order, is more uncertain as it depends on the type of transposing legislation. There are doubts about the status of directives implemented through subordinate legislation adopted under the powers conferred by the European Communities Act (ECA 1972) in the event that this is repealed.

Irrespective of which scenario is selected, UK exporters are likely to have to comply with a host of product standards in order to export goods and services to the EU. Environmental litigation will have to take place in national or international courts or in other types of dispute settlement bodies (such as the compliance committee under the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, for example).

What are the likely longer-term implications of each scenario on environmental law and policy?

Under both scenarios, a UK government would gain the possibility to lower environmental standards relative to EU levels, while keeping the possibility, already existing under article 193 of the Treaty on the Functioning of the European Union.

Under the Norwegian scenario the freedom to adopt lower standards would be limited to EU law that is not ‘EEA relevant’ such as legislation on bathing water, floods prevention, birds and habitats. Under the free trade scenario it would cover all areas of EU environmental law, although the UK would still be bound by a number of international agreements.

If the UK were outside the EU, it would still be open to members of the public to bring a complaint against the UK before the Aarhus compliance committee. Decisions of the Aarhus compliance committee are binding on parties as a matter of public international law.

The EU has played an important role in ensuring that remedies for breach of EU environmental law are robust and effective. EU environmental law often confers rights on individuals that they can enforce before their national courts. The European Commission has played an important ‘watchdog’ function and can initiate proceedings against EU Member States which are alleged to be in breach of EU environmental law.

What areas of environmental law are most likely to be affected by the outcome?

In the Norwegian scenario, the Habitats Directive 92/43/EEC, the Birds Directive 2009/147/EC and the Bathing Water Directive 2006/7/EC are explicitly excluded from the EEA agreement and would therefore cease to apply, agriculture and fisheries policies would also need to be nationalised. This could lead to increase in regulatory divergence between different nations of the UK as agriculture, environment and part of fisheries are devolved matters.

In the free trade scenario potentially all policies will be affected. Key priorities are the fate of directly applicable regulations—eg on chemicals, the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulation, on waste, the shipment of waste regulations—which would cease to apply once the UK leaves the EU. Subsequent UK governments would be free to revise—upwards or downwards—or completely remove UK legislation used to transpose directives.

What affect does the decision have on the practice of environmental law in the UK? What should lawyers be advising their clients?

Until the UK exits the EU, EU environmental law will continue to apply in the UK. Beyond that, the future is highly uncertain. Will TEU, art 50 be triggered? If so, what form will the UK’s future relationship with the EU take? Will the effects of EU legislation in the UK be maintained by a saving statute pending decisions about which specific pieces of legislation to amend or repeal? Until the answers to some of these questions are clearer, decision makers in business, academia and civil society should prepare for a range of different scenarios.

Andy Jordan is a professor of environmental policy in the Tyndall Centre, school of environmental sciences at UEA. He has published many papers and books on this subject, including Dismantling Public Policy (OUP, 2012) and the third edition of EU Environmental Policy (Earthscan, 2012, with Camilla Adelle). He has also undertaken leadership roles in many EU-funded projects and produced work for the UK Cabinet Office, the Department for Environment, Food & Rural Affairs, the European Commission, the World Wide Fund for Nature and the Royal Society for the Protection of Birds.

Dr Charlotte Burns is a senior lecturer at the University of York and is an expert in EU environmental policy and EU decision and policy-making processes and has a particular interest in the European Parliament. She has been involved recently in the Economic and Social Research Council-funded project, ‘Is the European Parliament an Environmental Champion?’, and is the author of several publications, including ‘Still Saving the Earth?: The European Parliament’s environmental record’, which was published in the journal of Environmental Politics.

Dr Viviane Gravey is senior research associate in the Tyndall Centre, school of environmental sciences at UEA. Her research focuses on environmental politics, policy dismantling and European (dis)integration. She is one of the lead authors, alongside Dr Charlotte Burns and Professor Andy Jordan, of the expert review, ‘The EU Referendum and the UK environment’, which examined how EU membership had affected the UK’s environment as well as different scenarios following a vote to remain or leave.

We are indebted to Joanne Scott for her perceptive comments on an earlier draft. Responsibility for any errors and omissions rests entirely with us, the authors.

Interviewed by Jane Crinnion.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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