Brexit: environment and climate change Contents

Summary of conclusions and recommendations

EU environmental legislation and action

1.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. (Paragraph 24)

2.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. (Paragraph 25)

The environment and the Great Repeal Bill

3.The medium-term stability and predictable review cycles provided by the EU have aided both investor confidence in the environment sector and civil society’s ability to engage with environment and climate change policies. (Paragraph 35)

4.Policy stability will be critical during the process of, and in the immediate aftermath of, withdrawing from the EU to avoid the emergence of legislative gaps and avoidable uncertainties in the sphere of environmental protection. Once the UK has withdrawn from the EU, environment legislation and policy will be more vulnerable to short term and less predictable changes at a domestic level. (Paragraph 36)

5.The breadth and depth of EU environment and climate change law means that transposing that legislation into UK law will be immensely complex. The Government intends that the Great Repeal Bill will ensure a degree of environmental legislative stability, while returning the responsibility for regulatory and judicial oversight to the UK, and in principle we welcome this approach. (Paragraph 61)

6.The Government’s approach, though, begs a number of questions, including what the scope of the Great Repeal Bill will be, and how it will accommodate so-called ‘legislation by reference’, as well as references to the EU’s institutions, its Executive Agencies and obligations imposed on other Member States. It is also unclear how and to what extent CJEU judgements and soft law such as Commission guidance notes, which are important tools for interpreting and implementing environmental law, will be transposed into domestic law. These are central to maintaining legislative consistency and predictability, and the extent of their continuing applicability will need to be clarified in tandem with the Bill. Although we recognise Defra’s determination to deliver the intention of the Great Repeal Bill, we are not confident that it has yet translated this determination into a delivery plan that works for the more complex areas of EU environmental legislation. (Paragraph 62)

7.International agreements will continue to shape aspects of the UK’s environment and climate change policies post-Brexit. Given that such agreements are often less detailed than the EU legislation through which they are implemented, and lack the institutional enforcement mechanisms offered by the EU, the Government will need to consider carefully the means by which they are given effect in domestic law, so as to ensure that the UK’s adherence to its international commitments is not watered down post-Brexit. (Paragraph 63)

8.The review being undertaken by each Department of how legislation in their policy areas will be affected by Brexit is key to ensuring that current levels of environmental protection are maintained. The Government should use this review to clarify the extent to which the Great Repeal Bill will minimise the risk of a legislative deficit for the environment, and to inform legislative action to ensure that equal levels of environmental protection and standards are retained after Brexit. (Paragraph 64)

9.The Government should also clarify what will happen to environmental legislation transposed through the Great Repeal Bill over time, in particular whether it will respond to any changes adopted by the EU after transposition. Regardless of the reason for any changes to environmental legislation, Parliamentary scrutiny will be vital to ensure current levels of environmental protection are at least maintained; we therefore welcome the Prime Minister’s recognition of the importance of this process. (Paragraph 65)

Enforcement of environmental law

10.The European Commission and the Court of Justice of the European Union have had a strong impact in ensuring the UK’s compliance with EU legislation that affects environmental protection. The evidence we have heard suggests the effectiveness of the EU regulatory regime is thanks in part to the deterrent effect of the power of EU institutions to hold Member States to account and to levy fines upon them for non-compliance. (Paragraph 71)

11.The importance of the role of the EU institutions in ensuring effective enforcement of environmental protection and standards, underpinned as it is by the power to take infraction proceedings against the United Kingdom or against any other Member State, cannot be over-stated. The Government’s assurances that future Governments will, in effect, be able to regulate themselves, along with Ministers’ apparent confusion between political accountability to Parliament and judicial oversight, are worryingly complacent. (Paragraph 83)

12.The evidence we have heard strongly suggests that an effective and independent domestic enforcement mechanism will be necessary, in order to fill the vacuum left by the European Commission in ensuring the compliance of the Government and public authorities with environmental obligations. Such enforcement will need to be underpinned by effective judicial oversight, and we note the concerns of witnesses that existing domestic judicial review procedures may be inadequate and costly. (Paragraph 84)

13.It will be important for any effective domestic enforcement mechanism to have both regular oversight of the Government’s progress towards its environmental objectives, and the ability, through the courts, to sanction non-compliance as necessary. (Paragraph 85)

Environmental implications of free trade with the EU

14.Subject to the level of access to the Single Market attained, the UK will need to either comply with or align itself to EU environmental standards, such as chemicals regulations and energy efficiency standards. It is therefore vital that the Government should make clear what the free trade agreement with the EU will entail, in order to help to clarify the constraints on future environment policy in the UK. (Paragraph 96)

15.Once the UK withdraws from the EU the Common Fisheries Policy and the Common Agricultural Policy will cease to apply to the UK. While equivalent policies could be carried over as a temporary measure by the Great Repeal Bill, alongside other EU environmental legislation, that Bill will not be the appropriate mechanism for evaluating and implementing options for taking forward these key areas of environmental policy. We recommend that the Government set out its plans for conducting such an evaluation, with a view to implementing new domestic policies that build on the progress in environmental protection that has been made in the last few decades in advance of the completion of withdrawal from the EU. (Paragraph 97)

The drivers for alignment of standards and policy

16.Whatever the shape of the UK’s future free trade agreement with the EU, there is a strong shared interest in maintaining cross-border trade. A degree of alignment between the UK and the EU on environmental standards will thus continue to be key to maintaining access to each other’s markets across many sectors. (Paragraph 109)

17.Any restrictions, or the imposition of tariffs, on the UK’s trade with the EU in recycling and waste could significantly increase the costs of waste management post-Brexit. Once the UK Government has clarified the details of the FTA it is seeking with the EU, the Government, in consultation with industry, will need to assess whether its approach to waste management is still feasible and fit for purpose. (Paragraph 110)

18.The transboundary nature of most environmental pollution means that failure to co-operate with the EU post-Brexit could have significant consequences for both the UK’s and the EU’s natural environment. Marine conservation, air quality and climate change are three key areas where the UK and EU environments will be conjoined as much after Brexit as before. The Government will need to co-operate with the EU in these areas, among others, to ensure environmental protection is maintained. (Paragraph 132)

19.The land boundary in the island of Ireland presents particular and significant environmental challenges. We urge the UK Government to work with the Northern Ireland Executive, the Irish Republic and EU partners to enable effective long-term management of the environment on both sides of the border. (Paragraph 133)

20.Climate change in particular is a global issue, transcending EU membership, which is most effectively combated by means of co-ordinated global action. We note that the UK’s withdrawal from the EU may affect both parties’ ability to meet their climate targets as currently established. The Government will therefore need to reassess the most cost-effective means of reaching the UK’s climate change targets post-Brexit. (Paragraph 134)

21.Emissions trading schemes, when functioning well, are a cost-effective means of reducing carbon emissions, and the EU ETS is one of the EU’s flagship policies for mitigating climate change. If the UK does seek to continue to participate in the EU ETS, it should also seek to retain influence over its operating rules, to ensure that the system operates effectively. If, on the other hand, the Government does not continue to participate, it will need, as a matter of urgency, to evaluate alternative means of driving emissions reductions, so that the UK can continue to fulfil its national and international obligations. (Paragraph 135)

Influence

22.The UK will have much less formal influence, post-Brexit, on the shape of the EU environmental standards, regulations and initiatives to which it may be exposed, and with which it may need to comply in order to trade with the EU. (Paragraph 145)

23.After Brexit the UK will, however, continue to have the opportunity to continue to influence EU environmental policy by a range of informal means, including UK trade associations and NGOs maintaining close contact with and membership of their European pressure groups. The Government should encourage, and where possible facilitate, the exercise of this informal influence coherently and constructively. Therefore, in tandem with withdrawal negotiations, the Government should review the alternative means by which the UK may be able to influence the EU’s environmental and climate change policies where they will affect the UK. (Paragraph 146)

24.The UK will remain a full EU Member State until withdrawal is complete. We urge the Government to continue to engage fully and constructively in negotiating and seeking to influence EU environmental proposals for the full term of the UK’s EU membership. (Paragraph 147)

25.The UK in isolation is likely to have less influence in global negotiations, including on climate change, than it currently possesses as part of the EU. (Paragraph 154)

26.The UK is currently viewed as a global leader on climate action. In order to preserve this status, and to offset any potential loss of influence after Brexit, the Government should seek to align the UK to other regional and thematic negotiating blocs with which it shares policy goals. The UK should also make use of all other tools, including its diplomatic relationships, so as to continue to influence global action on climate change, but this will be dependent on the UK continuing to pursue leading climate actions itself. (Paragraph 155)

Resources

27.The UK receives significant funding from the EU, which contributes to both environmental research and infrastructure projects with an environmental outcome, as well as to the routine management of the countryside. We invite the Government to clarify whether this funding will continue in some form or be replaced domestically post-Brexit, and, if so, for how long. If it will not be replaced by domestic funds, we call on the Government to explain by what alternative means it proposes to reach environmental goals. (Paragraph 164)

28.Quite apart from the question of funding, loss of access to and participation in research projects and information networks co-ordinated by the EU could severely hamper the UK’s environmental and climate change research efforts. We urge the Government to work to ensure that UK academics remain able to participate in research collaborations and exchanges with the EU post-Brexit, and welcome the Prime Minister’s recognition of the value of this co-operation. (Paragraph 167)

29.The Government faces a considerable challenge in maintaining environmental legislation through the Great Repeal Bill, while at the same time developing domestic agriculture and fisheries policies. (Paragraph 173)

30.Defra and BEIS will also need to ensure that UK and EU policy developments that continue to occur outside and alongside the Brexit process receive the necessary attention from both staff and Ministers. The Government, and Defra in particular, will need a very substantial increase in resources in order to tackle these challenges, both during and after the Brexit process. (Paragraph 174)

Devolution and the environment

31.There is already variation in environmental policy between the Devolved Administrations. Such variation is likely to increase in the aftermath of Brexit, once the requirement to act in conformity with EU law is lifted, and as policy areas currently reserved to the EU become devolved matters. (Paragraph 186)

32.We welcome the acknowledgement both by the Devolved Administrations and the Government of the increased need to achieve an appropriate level of policy coordination, while allowing for some variation to reflect local or regional circumstances. The UK Government should consult closely with the Devolved Administrations throughout the withdrawal negotiations, and in the formulation of its Great Repeal Bill, to ensure environmental management can be co-ordinated across the UK where this will enhance its effect. (Paragraph 187)





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