Brexit has created an uncertain future for the UK’s environmental governance. Withdrawal from the EU means that the UK will no longer be subject to the laws and accountability structures that have defined its environmental policy for decades. Early in the Brexit process, it was unclear whether environmental considerations would play much of a role at all. In the time since, it has become widely recognized that new measures are necessary to preserve environmental policy and accountability.

Colin T. Reid of the University of Dundee has identified a series of questions that have lingered since Brexit’s inception. Their answers help explain the current state of UK environmental law, the progress that has been made since the referendum, and remaining uncertainties.

Will the legislative slate be wiped clean? Will all of the law enacted by the EU have to be replaced, or will existing EU law be carried over and continue in force?

Current UK environmental law, covering issues including air pollution, waste, water resources, nature conservation, noise, and more, largely comes from EU directives and the domestic laws that give them effect. It would not be feasible to eliminate all these measures and start from scratch.

For the most part, in the short-term at least, the UK will maintain EU environmental laws under a new category of domestic law called “retained EU law.” These laws are now subject to amendment by UK authorities. Thousands of amendments have already been made to bring them in line with Brexit goals, such as eliminating the functions of EU authorities within them.

Will the future see a major divergence between EU and UK laws, and in particular will the UK embark on a program of deregulation?

The EU has made an effort in negotiations to have the UK remain aligned on environmental matters, citing a desire to maintain a level regulatory playing field. The UK government has been unwilling to commit to this, saying that the whole point of Brexit was to enable the UK to make its own rules independent of the EU. In practice, the UK may not want to make drastic changes to environmental law, but it views the right to do so as ideologically important. Some UK officials see environmental regulation as an obstacle to economic growth and recovery, as well as an obstacle to establishing a trade relationship with the U.S. Thus, some deregulation is certainly possible.

The UK’s devolved system of governance also complicates the transition, since different nations within the UK are able to take different approaches to environmental law. In the absence of EU authority, disputes have arisen over the distribution of power among the nations comprising the UK and the UK government. The Withdrawal Act, which passed without the consent of any of the devolved Parliaments (Scotland, Wales, and Northern Ireland), gives the UK government the authority to control any policy area where it thinks a unified policy structure is desirable. These tensions were reinforced by the UK government’s proposal of an Internal Market. Under this proposal, devolved authorities would still be able to determine their own environmental standards, but they risk being undercut by the English market if its standards are weaker.

Since each nation has authority on some environmental matters, a fractured system of environmental governance is inevitable. The gaps that Brexit has left in environmental law will likely be filled as a part of the pending “Environment Bill.” However, the bill has been delayed multiple times and still has yet to be passed. While the provisions of the bill would apply to England and Northern Ireland, the other nations are taking different approaches. Scotland will follow its own set of proposals, aiming to remain more in line with EU policy. This aligns with the possibility that Scotland will gain independence and attempt to rejoin the EU. The new set of policies in Wales is unclear and legislative proposals have been delayed until after their elections in May 2021.

Will environmental law become more volatile and subject to short-term shifts in policy?

Compared to the UK, the EU has a slow lawmaking process. This can be a benefit for environmental regulation since it affords a higher degree of regulatory stability. Fixed and long-term targets to address environmental issues can be easier to accomplish when policy is less subject to short-term political pressures. With the UK acting independently, laws will be able to change more rapidly, which may be an obstacle to ambitious environmental action. For instance, in the past, a long-term plan to increase taxes on petroleum was never implemented because there was always a reason to delay the tax increase in the short-term. The Environment Bill requires the UK government to produce a 15-year plan for environmental protection, which could provide some stability, but it is ultimately unlikely to be as strong and stable as the EU regulations that preceded it.

In the absence of the European Commission and the Court of Justice of the European Union (CJEU), how will the government be held to account for its environmental performance and its success or failure in meeting targets?

One of the most significant impacts of Brexit on environmental policy is the loss of accountability from the European Commission and CJEU. These are powerful bodies that were able to compel the UK to comply with EU environmental law. The replacement structures which are coming into place are a patchwork of regional measures, not as sweeping and strong as the EU’s structures. However, this is not the worst-case scenario. At the time of the Brexit referendum, it appeared possible that no new structures would be implemented to maintain accountability on environmental matters after the withdrawal took place. Even though the new set of governance structures is unlikely to be as effective as those in the EU, it will go a long way to hold governments accountable on environmental issues.

More detailed information about Brexit’s impact on UK environmental law can be found in Colin Reid’s original article here.

Posted in Renewable Resources Report