Brexit: environment and climate change Contents

Chapter 2: EU environmental legislation and action

The environmental acquis

7.EU environmental legislation is complex and wide-ranging, reflecting the cross-cutting nature of the environment itself.

8.The Government’s Balance of Competences Review noted that “the original Treaty of Rome [which established the European Economic Community] did not contain any references to environmental protection”.6 Thus much of what is now regarded as EU environmental legislation originated in the harmonisation of product and other standards with a view to removing substantial differences in national environmental rules, thereby enabling the free movement of goods within the common market. Typically, the Commission brought forward such legislation under the standard common market legal base, Article 100 EEC.7

9.In addition, the Community was able to address specific environmental issues using the catch-all legal base, at that time Article 235 EEC, which allowed the Community to introduce legislation to attain “objectives set out in the Treaties” even where the Treaties themselves did not provide the necessary powers.8 Thus the Wild Birds Directive, one of the first pieces of purely environmental legislation at European level, was adopted in 1979 under Article 235 EEC.9

10.As the EU evolved, and as awareness of global threats to the environment became more acute, so EU competence in respect of environmental policy expanded. With the coming into force of the Single European Act in 1987 Treaty powers explicitly authorising environmental action at EU level were established for the first time, and the scope of these powers (now embodied in Title XX of the Treaty on the Functioning of the European Union) has not changed much since that time.

11.Even after 1987, however, much legislation that was ‘environmental’ in character continued to be made under the standard Single Market legal base. Thus the first EU legislation on energy efficiency labelling of household appliances, introduced in 1992, used an Article 100 EEC legal base.10 More recently, the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulation,11 which regulates chemical substances in the EU, and the Directive on the restriction of the use of certain hazardous substances in electrical and electronic equipment,12 have also used the standard Single Market legal base.

12.Within Title XX, Article 191 of the Treaty on the Functioning of the EU (TFEU),13 as amended over the years, sets out the EU’s objectives for environment policy:

“Union policy on the environment shall contribute to pursuit of the following objectives:

13.Under Article 191(2) TFEU, policy on the environment shall also “be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.”

14.Since its adoption in 1987 Title XX has provided the legal base for a range of ‘purely’ environmental legislation, including the Habitats Directive of 1992,14 which provided for the conservation of rare endemic animal and plant species, and the Water Framework Directive of 2000,15 which established a framework for protecting European rivers, lakes, and coastal waters, among others. A Title XX legal base also underpinned the introduction of the first EU Emissions Trading Scheme, a key component of the EU’s policy on combating climate change and reducing greenhouse gas emissions.16

15.As well as acting in areas affecting the internal market and, since 1987, the environment itself, the EU has, since its inception, played a key role in shaping farming practices, through the Common Agricultural Policy (CAP). This has its own legal base within Title III TFEU. Under Article 39 TFEU the objectives of the CAP are essentially economic: to increase agricultural productivity and stabilise markets, for the benefit of both farmers and consumers. The CAP reforms affecting the period 2014–2020 introduced the ‘green payment’, subjecting 30% of Member State total Direct Payments to environmentally beneficial greening practices, such as the maintenance of permanent grassland, ecological focus areas and crop diversification.17

16.The Common Fisheries Policy (CFP), dating back to the accession of the United Kingdom, Denmark and the Republic of Ireland in 1973, governs access to EU fisheries and the setting of quotas for particular species. Although the CFP too was a primarily economic instrument in its original form, the wider development of international law, and the Lisbon Treaty’s conferral upon the EU of exclusive competence in respect of marine conservation, have meant that it too now has a substantial environmental aspect. This is discussed in our report Brexit: fisheries, published on 17 December 2016.18

Box 1: Components of EU legislation

European Union law consists of the founding Treaties (primary legislation) and the provisions of legislative instruments such as Regulations and Directives as enacted by the EU’s legislative institutions (secondary legislation). In a broader sense, EU law encompasses all the rules of the EU’s legal order: the case law of the Court of Justice of the European Union (CJEU), the General Principles of EU law (including those now reflected in the Charter of Fundamental Rights of the EU) as interpreted by the CJEU and the national courts of the individual Member States, and the law flowing from the Union’s external relations. All these instruments and laws form part of what is known as the EU’s acquis.

The three principal EU legislative instruments are:

  • Regulations: these are binding in their entirety and directly applicable in all Member States;
  • Directives: these bind the Member States as to the results to be achieved, but they have to be transposed into the national legal framework and thus leave a margin for manoeuvre as to the form and means of implementation;
  • Decisions: these are fully binding on those to whom they are addressed.

The EU’s institutions can also adopt Recommendations and Opinions which are non-binding, declaratory instruments.

Source: Article 288, Treaty on the Functioning of the European Union

17.The EU’s suite of environmental legislation and policies is clearly something of a patchwork quilt, drawing on a range of policy motivations and legal bases, as they have been amended by various iterations of the Treaties. While the European Commission states that the environment acquis alone comprises over 200 “major legal acts”,19 this figure excludes product standards, labelling, and other relevant internal market legislation, as well as the energy sector, agriculture and fisheries. In most of these areas, the EU institutions and the individual Member States share the power to adopt environmental legislation (shared competence); in specific areas, notably marine conservation, the Member States have passed legislative power to the EU (exclusive competence). The exact proportion of UK environmental law that stems from EU legislation is hard to quantify, but it is substantial.20 Professor Richard Macrory, Professor of Environmental Law at University College London, noted Kramer’s EU Environmental Law (2011) lists 111 Regulations, 256 Directives and 136 Decisions that were in place by 2010.21 Defra told us that “over 1,100 core pieces of directly applicable EU legislation and national implementing legislation have been identified as Defra-owned”,22 that is to say they relate to policy areas that fall within the remit of the Department.

18.A non-exhaustive summary of the extent of EU environmental policy activity is set out in Box 2.

Box 2: Key environment and climate change policies at the EU level

Environment

  • Chemicals regulations (such as the registration, evaluation and labelling of chemical substances)
  • Circular economy (such as the avoidance of waste and promotion of new uses for materials)
  • Clean air (such as ambient air quality, industrial emissions and transport-related air policy)
  • Marine and coastal environment (such as the Common Fisheries Policy, and environmental aspects of coastal and marine policy)
  • Nature and biodiversity (such as biodiversity strategy, species protection and Natura 2000 protected areas)
  • Noise pollution
  • Soil quality
  • Urban environment
  • Waste and recycling (such as packaging requirements)
  • Water resources (such as the Water Framework Directive, river basin and flood risk management, drinking water, bathing water)
  • Environmental aspects of the Common Agricultural Policy (such as cross-compliance, environmental standards and biodiversity)

Climate action

  • Adapting to climate change
  • Emissions trading
  • Energy efficiency (such as the EcoDesign Directive setting standards for electronic goods,23rules on buildings, industry, consumer products and transport)
  • Fluorinated greenhouse gases
  • Forest and agriculture emissions (such as deforestation, emission removal and storage)
  • Greenhouse gas emission reduction
  • International climate action
  • Low carbon technologies
  • Ozone layer
  • Renewable energy (such as deployment targets and national action plans, and support schemes)
  • Transport emissions (such as road transport, shipping, aviation and fuel quality)

Source: European Commission, ‘Policy Area: Environment’: https://ec.europa.eu/info/strategy/environment_en ; European Commission, ‘Policy Area: Climate action’: https://ec.europa.eu/info/strategy/climate-action_en; European Commission, ‘Policy Area: CAP’: http://ec.europa.eu/agriculture/cap-overview_en [accessed 19 January 2017]

Enforcing the environmental acquis

19.EU law is enforced by the European Commission, as the ‘Guardian of the Treaties’, and overseen by the Court of Justice of the European Union (CJEU), which can levy fines on Member States that are found to be in breach of EU law.24 EU environment and climate change law is therefore embedded in the institutional enforcement structures of the EU.

Risks and opportunities

20.It will be clear from the summary we have given that almost all aspects of domestic environmental policy are bound up with EU policies and legislation. As Professor Maria Lee, Professor of Law at University College London, told us: “Currently, all our environmental standards and norms are profoundly embedded in EU accountability, governance and legal structures.”25

21.The process of disentangling both legislative standards and governance structures will thus be a hugely challenging element within the wider Brexit process. Yet some see Brexit as an opportunity to review and improve environmental legislation in the UK. The Society for the Environment told us:

“We would be pleased to work with the Government in finding ways and means of transposing national legislation made in pursuit of European Union legislation into purely UK driven legislation, which sustain the objectives but which are at the same time efficient and effective.”26

22.Others, in contrast, are concerned that Brexit could lead to a deterioration of environmental protection in the UK. In the words of Prof Jordan: “Many of the NGOs are worried that, after the Article 50 process has ended, it is going to be open season on environmental regulations and large swathes of policy are going to be quickly deregulated.”27 In part, this concern reflects a risk that environmental policy could be ‘orphaned’ within the wider Brexit process. In the words of Prof Macrory: “In most areas of law—be it competition law, social security law or welfare law—there will be clear economic interests who will protect themselves, go to court or whatever. With the environment, bits of it may be unowned; there is no clear interest.” Quoting a prominent expert in EU law, Prof Macrory commented that the environment “dies in silence”.28

23.Such concerns reflect in part the fact that the EU’s environmental acquis is more than a corpus of law: it is also a complex but effective trans-national system of governance and enforcement. As Prof Lee told us: “The legislation does not stand alone. The legislation is embedded in an EU governance structure”.29 Within this structure, as we have noted, the European Commission and the CJEU play key roles in enforcing environmental legislation in the UK. We discuss enforcement in Chapter 4 below.

24.The EU environmental acquis is a patchwork quilt of laws, some relating to the rules of the internal market, others to issues of trans-national environmental significance, such as species conservation or clean air. Some sectoral policies, such as the EU’s agricultural and fisheries policies, also have substantial environmental elements and regulate significant flows of expenditure in this field. These laws are implemented and enforced by well-developed and powerful EU institutions, both regulatory and judicial.

25.The repatriation of environmental policy as a result of Brexit presents opportunities and risks, which we explore in the remainder of this report. But what must not be under estimated is the scale and complexity of the task of repatriating environmental policy, and its profound implications for domestic governance as well as for domestic law.


6 HM Government, Review of the Balance of Competences between the United Kingdom and the European Union: Environment and Climate Change, February 2014, p 19: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284500/environment-climate-change-documents-final-report.pdf [accessed 14 December 2016]

7 Historically Article 100 EEC, Article 95 TEC and now Article 114 Treaty on the Functioning of the European Union, OJ C 202 (consolidated version of 7 June 2016), its amended text refers to the “internal” rather than the “common” market.

8 Article 235 EEC; Article 308 TEC and (now) Article 352, Treaty on the Functioning of the European Union.

9 Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, OJ L 103 (25 April 1979), pp 0001–0018

10 Council Directive 92/75/EEC of 22 September 1992 on the indication by labelling and standard product information of the consumption of energy and other resources by household appliances, OJ L 297 (13 October 1992), pp 0016–0019

11 Regulation (EC) No 1907/2006 of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and establishing a European Chemicals Agency , OJ L 396 (30 December 2006)

12 Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment, OJ L 174 (1 July 2011) pp 147–169

14 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ L 206 (22 July 1992), pp 7–50

15 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L 327 (22 December 2000), pp 1–73

16 Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, OJ L 275 (25 October 2003), pp 32–46

17 European Union Committee, Responding to price volatility: creating a more resilient agricultural sector (15th Report, Session 2015–16, HL Paper 146) p 22

18 European Union Committee, Brexit: fisheries (8th Report, Session 2016–17, HL Paper 78)

19 European Commission, ‘European Neighbourhood Policy and Enlargement Negotiations’: http://ec.europa.eu/neighbourhood-enlargement/policy/conditions-membership/chapters-of-the-acquis_en [accessed 17 January 2017]

20 House of Commons Library, How much Legislation comes from Europe? Research Paper 10/62, 13 October 2010

21 Written evidence from Prof Richard Macrory (ECB0015)

22 Supplementary written evidence from Defra (ECB0016)

23 Directive 2009/125/EEC establishing a framework for the setting of ecodesign requirements for energy-related products, 21 October 2009, OJ L 285 (31 October 2009), pp 10–35

26 Written evidence from the Society for the Environment (ECB0011)

27 Q 8; Q 2 (Prof Andy Jordan) Q 12 (Trevor Hutchings) and Q 28 (Dr Doug Parr)

28 Q 10, quoting Ludwig Krämer




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