Summary
Membership of the EU has had a fundamental impact on environmental legislation in the UK, and withdrawal from the EU will affect nearly every aspect of the UK’s environmental policy. In recent years, UK climate change policy has also become increasingly enmeshed in EU policy.
EU environmental law includes such diverse areas as nature and biodiversity, waste and recycling and chemicals regulation, while the EU’s climate action measures include emissions trading, energy efficiency standards and support for low carbon technologies. Though the UK has strong domestic climate change legislation, domestic environment policy is heavily influenced by EU law. Brexit is an opportunity to amend or repeal existing legislative measures, but the environment, and those seeking to preserve or invest in it, need long-term policy stability. Maintaining this stability during the Brexit process will be crucial to ensure that legal protections for the UK’s environment remain complete and effective.
While the Great Repeal Bill should in principle help to achieve a degree of stability, it is far from clear whether it will be comprehensive. The complexity and extent of EU environmental law, as transposed into domestic legislation, are such that many stakeholders are now concerned that environmental protections and ambitions will be diminished. The Government will need to map out the EU’s environmental acquis to assess where the Great Repeal Bill will not be able to preserve legislative and policy stability, and act accordingly to ensure that environmental protection does not diminish as a result of Brexit.
EU environment and climate change laws do not stand alone. Their implementation is monitored and enforced by EU institutions, in particular the European Commission and the Court of Justice of the European Union. Both institutions have played a key role in driving improvements to the UK’s environment over the course of the UK’s membership of the EU, particularly through the threat of infraction proceedings. Governmental self-regulation will not be an adequate substitute post-Brexit. An equally effective domestic enforcement mechanism, able to sanction non-compliance, will be necessary to ensure that the objectives of environment legislation continue to be met in practice.
The UK is leaving the EU, not Europe. Its environment will remain inextricably linked to the environment of Europe. In many areas, such as species conservation, or air and water quality, it will be vital for the UK and the EU to continue to co-operate in order to protect the shared European environment, whether terrestrial, marine, or atmospheric.
The UK’s future trading relationship with the EU could also have a major impact on the extent to which the Government could, or would, seek to deregulate environmental policy post-Brexit. The UK would need to comply with, or seek to adopt measures equivalent to, EU environmental standards in order to continue to trade freely with the EU. Chemicals regulations are a case in point. The UK will have no formal role in the development of EU standards post-Brexit, so the Government should seek to maximise the UK’s informal influence.
Brexit will also change the means by which the UK can most effectively contribute to international efforts to mitigate climate change. Outside the EU, it will be important for the Government to consider alternative alliances that may assist the UK in furthering its aims; and to take an ambitious domestic approach to combating climate change, thereby lending credibility to its negotiating position.
The Department for Environment, Food and Rural Affairs (Defra) faces an enormous challenge as the UK approaches Brexit. Together with the Devolved Administrations, it is responsible for repatriating and replacing the Common Agricultural Policy and the Common Fisheries Policy. Alongside the Department for Business, Energy and Industrial Strategy (BEIS) it must also map the extent to which environmental and climate change policies can be preserved through the Great Repeal Bill. Furthermore, Defra will need to design regulatory structures to ensure that environmental protections are enforced as effectively after Brexit as before. Resolving the tensions inherent in these competing tasks will be vital if the Government is to deliver on its commitments to leave behind a better environment than it inherited.