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Environmental Compliance and Liability post Brexit

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Summary: A lot of environmental law and regulation in the UK has its roots in EU law. In the aftermath of the recent referendum result, we are entitled to ask: what does the future hold for the UK’s environmental law and environmental regulation?

Will there be any immediate changes?

It is hard to see there being any swift, material changes to environmental law and regulation in the UK in the short term.  Notice of intention to leave the EU under Article 50 of the Treaty on European Union has not yet been given.  Until this has happened (and the indication is that it is unlikely to happen for some months yet), environmental law and regulation will not be changing. 

What changes can we expect after the Article 50 Notice has been given?

There will probably be little material change until the UK actually exits the EU, which will be at least 2 years after the Article 50 Notice has been given, and possibly longer if a different date were agreed with all 27 remaining EU Member States. 

Post exit however, the obligation to follow the significant body of EU environmental law could fall away and, if it did, the UK would have a much freer hand (subject to parliamentary and regulatory time constraints) to alter the environmental legal and regulatory landscape, if that was in the UK’s interests.  There could be some significant changes.

Could there be significant changes across the board, or just in certain areas?

There is no reason to expect significant changes to those UK environmental laws that do not have their roots in EU legislation or that are derived from the UK’s international law obligations. 

Examples of UK environmental laws that are entirely (or almost entirely) domestic in nature, and do not stem from EU laws include:

  • The contaminated land regime under Part 2A of the Environmental Protection Act 1990;
  • Established domestic common law liability principles that apply to environmental matters, such as those relating to nuisance.
  • The laws setting up the framework of the environmental permitting system. 

Examples of UK environmental laws that stem from international law obligations include:

  • the raft of legislation relating to greenhouse gas emissions reduction;
  • legislation relating to freedom of information, public participation and access to justice in environmental matters (Aarhus Convention); and
  • legislation relating to the protection of wetlands (the RAMSAR Convention).

Areas of law that are heavily based around EU law would be most susceptible to change.  For example:

  • Nature conservation – there may be an opportunity for the UK to introduce different bird and habitat protection laws, which are currently heavily influenced by the EU Habitats and Birds Directives.
  • Waste – An exit from the EU could provide the UK with the opportunity to decouple UK legislation from the EU controls dealing with recycling targets, landfill diversion and hazardous waste. 
  • Air and water quality – The government may be tempted to effect a relaxation of existing air and water standards set under EU law.  

Are significant changes inevitable in relation to UK law that is rooted in EU law?

Not necessarily.  There may turn out to be little or no change to this law.  There are three reasons for this:

  • First, the exit deal that is done, particularly in relation to trade, may require a continued level of harmonisation of UK law with EU law.  In particular, if the plan is for the UK to remain part of the European Economic Area, the UK will be obliged (notwithstanding its exit from the EU) to have implemented virtually all EU environmental laws.  The only EU environmental laws that would not have to be implemented (and where the UK would be free to legislate as it wishes) are the Bathing Water Directive and the Habitats and Wild Birds Directives. 
  • Second, to the extent that the UK does have the ability to legislate as it wishes following Brexit, environmental regulation changes will have to take their place in the queue for parliamentary and regulatory time in competition with all other areas.  It may be many years post exit before the law can change. 
  • Third, just because regulation that was formerly influenced by EU law can be changed does not mean that it should be changed.  Where current UK environmental regulation is fit for purpose and serves the UK’s interests well, there is no reason to change it just because it has its roots in EU law.

What practical steps will the UK government have to take?

Essentially, against the backdrop of the terms (or likely terms) of the exit agreement and future trading relationship, the UK government will need to undertake an extensive evaluation exercise of those laws in the UK that are derived from EU laws to determine:

  • which should be (or need to be) retained in their current format;
  • which should be replaced by different domestic laws; and
  • where laws need to be replaced, which should be given priority.

Giving effect to what is determined will need to be carefully thought through depending on whether the EU law previously covering any given area was an EU Directive or an EU Regulation. 

  • Where it was an EU Regulation, the Government will effectively have to legislate from scratch to create the necessary rules, even where they are intended to mirror the rules formerly in place via the EU Regulation.  This is because Regulations apply automatically in member states and, when a member state leaves the EU, the Regulation immediately ceases to apply in that member state, thus leaving a legislative vacuum that needs to be filled.
  • Where it was an EU Directive, legislating from scratch may not be necessary.  Unlike Regulations, EU Directives must be implemented into national law in order to take effect. This is typically done through Statutory Instruments. These Statutory Instruments could be expressly retained as part of national law notwithstanding the UK’s exit. This would avoid a legislative vacuum.  The implementing Statutory Instruments would continue to apply the pre exit law until amended or replaced at a later date.

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