Upholding environmental standards if there's no Brexit deal

Environment analysis: Amid mounting government brinksmanship on leaving the EU without a deal in place, concern persists at the harm that could be done to environmental standards under such a course of action. Christopher Badger, of 6 Pump Court, outlines a current situation in which statements of intent have been made, but where substance is lacking and resources will be stretched.

First published in LexisPSL. Click here for a free trial. LexisPSL includes a Practice Note on the possible implications of Brexit on environmental law.

What is the position in relation to environmental law in the UK before 29 March 2019?

Human health and the environment are currently protected by a large body of existing EU environmental law, which covers areas including air quality, waste and resources, water, wildlife and habitats, chemicals and pesticides. The government has stated that it is committed to maintaining environmental standards post Brexit.

 

What is the government proposing in relation to environmental law in the UK if there is no Brexit deal?

The government has announced that it is due to bring forward a new Environment Bill, which is intended to only apply to England. The European Union (Withdrawal) Act 2018 (EU(W)A 2018) has already committed the government to enacting a set of environmental principles, publishing a statement of policy in relation to the application and interpretation of those principles and the establishment of an independent environmental watchdog, with functions that will include the potential to take proportionate enforcement action where that watchdog considers a Minister of the Crown is not complying with environmental law as defined in the Bill.

 

The notice that concerns upholding environmental standards in the event of a no-deal Brexit is just over 1,100 words long and principally confirms that, due to the operation of EU(W)A 2018, all existing EU environmental law will continue to operate in UK law. The notice goes on to state that the government will amend current legislation to correct references to EU legislation, transfer powers from EU institutions to domestic institutions and ensure we meet international agreement obligations, and that the legislative framework will then be changed to leave the natural environment in a better state than we inherited it. This is, on any estimation, a significant legislative undertaking but little detail is given about how and when this will occur. The notice suggests that much of that detail (about, for instance, the regulation of obligations in the absence of the EU Commission) will be fleshed out in the Environment Bill 2018.

Do you think these plans are adequate or could anything else be done?

The lack of any substantive detail means that it is very difficult to assess whether the plans are adequate or not. One particular concern is the fact that the obligation contained within the EU(W)A 2018 is only to ensure that Ministers of the Crown have regard to the statement of policy. There is no obligation at present on Ministers to further the objective of environmental protection.

 

To highlight one example, Jacob Rees Mogg has recently referred to the EU regulation for Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) as a potential barrier to trade, creating as it does environmental protections that in his view have the potential to cost businesses money and deter trade. Despite the rhetoric of the government to maintain environmental standards, there may be the temptation to sacrifice environmental standards in favour of attracting economic investment. Although it is proposed that the UK will maintain at least a system of equivalence with the EU, there is no detail as to what is meant by the concept of equivalence and who would be responsible for assessing it.

Is there anything else of note arising from the notice?

For those interested in the extent to which environmental standards will be maintained, this notice should be read in conjunction with other technical notices that have been published by the government. With regard to industrial emissions standards and determining best available techniques, the government has confirmed that secondary legislation will be passed to ensure that existing Best Available Technique Conclusions continue to have effect in UK law after we leave the EU. However, the notice gives little tangible guidance on how the UK will determine future Best Available Techniques Conclusions once we have left the EU, other than that the UK government will put in place a process for determining future UK Best Available Technique Conclusions.

 

There is little suggestion in another notice on the using and trading of ozone depleting substances that the government wishes to depart from the current EU system (which establishes a stepped reduction in the use of such gases until 2030) but it is suggested that the Environment Agency will be required to establish and administer a new IT system to track and report on the use of these chemicals.

As to the reporting of CO2 emissions for new cars and vans, given the interconnectedness of the automobile industry there is unsurprisingly little suggestion that the overall regulatory scheme would change but the Department for Transport suggests that the existing EU Regulations would be transposed into domestic law through a statutory instrument which would additionally correct a number of deficiencies. However, similarly as with other notices, we are told that detail on the arrangements to maintain current environmental protections would be subject to stakeholder engagement and Parliamentary approval.

In summary then, while these are a helpful set of papers they do no more than set out an outline of how the government sees a no-deal Brexit unfolding. Huge amounts of Parliamentary and stakeholder time will be required to effect the proposed changes and the needs of the environment will, of course, be competing with all the other government departments which will also need to develop their own alternative legislative frameworks.

Interviewed by Julian Sayarer.

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

Filed Under: Environment

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