Brexit and the environment

The referendum on 23 June 2016 on the question of whether the UK should remain in, or leave, the European Union resulted in 51.9% of those who voted supporting withdrawal. The result, and the present UK Government’s statement that the result will be implemented by legal means, are momentous decisions. Much has already been written about the constitutional, economic and other key issues that arise. This summary is a high level snapshot of potential implications for law relating to the environment.

Article 50 of the Treaty of the European Union is the lawful and untested process for a Member State to leave the EU. The present UK Government has stated that Article 50 will not be triggered until there is a new Prime Minister in place to lead the withdrawal negotiations. Once triggered, the period for negotiation under Article 50 is until the withdrawal agreement or 2 years unless extended by unanimous agreement. Commentators consider more than 2 years will be required to complete negotiations.

A significant amount of law relating to the environment originates from the EU. EU Directives require implementing legislation whereas EU regulations have direct effect. Up until the point that the UK is officially declared to have withdrawn from the EU, it remains a member and bound by all EU law. Much will depend on the form of any agreement post exit as to the extent of change to EU originating laws in the UK.

The consequences for UK Environment law

In the immediate term in relation to existing environment laws it should be business as usual. Existing laws must be complied with regardless of how they originated and the UK remains bound by them. It is no defence that, in future, laws may alter.

In the short term, on the basis that withdrawal from the Union is effected:-

The status of EU initiatives which will not have become law or are not yet in force before any withdrawal is uncertain. The approach may be impacted by any new agreement with the EU. Subject to the terms of a new agreement, if not bound by new laws, the UK Government or alternatively some of the devolved administrations may decide to implement similar laws or not at all. Many initiatives such as the circular economy have been discussed for several years, are recognised as positive advances and have broad stakeholder support.

Importantly, for those organisations which continue to place goods on the market in the EU/EEA post any UK exit, compliance with relevant EU law (including such EU law as it continues to develop) will still be needed.

The UK Government in conjunction with the UK Parliament will need to properly consider how an exit would affect existing laws of EU origin. These laws span a wide interconnected remit and include air quality, buildings, environmental damage, water quality, waste, energy and energy efficiency, environmental permitting, industrial emissions, agriculture, wildlife and marine life, habitats, GMOs, restrictions on chemicals and substances, ecodesign and energy labelling. The approach would be influenced by the terms of any new agreement with the EU. A recent briefing paper to the UK Parliament (first link below) states that “There is no reason why EU based UK law could not remain part of UK law but the Government would have to make sure it still worked without being in the EU.”

The European Communities Act 1972 recognises directly effective EU laws such as regulations. The Act also enables other EU laws such as directives to be implemented by domestic legislation. Briefing papers to the UK Parliament (see below) have suggested that if the Act were to be repealed (without qualification), regulations and domestic legislation made pursuant to the Act (and not under any other powers) would cease to have effect. A report to the UK Parliament in April this year (second link below) noted that a number of options could be considered including potentially amending the Act so that such laws remain in force until if and when repealed or introducing provisions to keep specified laws. In tandem the devolved administrations, which have increased powers in relation to environment matters, would need to consider their own domestic legislation. In certain instances if legislation were to be repealed on a UK basis, the separate Scottish, Welsh and Northern Irish Parliaments could choose to enact local laws.

The UK and Scotland for some time have had their own legislation on climate change which will not be affected by any exit from the EU. In addition the recently enacted Environment (Wales) Act 2016 covers sustainable management of natural resources, waste powers and climate change which are unlikely to be affected.

Action

The level of legal change afoot is uncertain. It is hoped that any change is fully considered, transparent and consulted upon. In the immediate term all existing EU laws continue to apply and any EU level consultations remain relevant and should still be monitored. For those manufacturing or selling goods in the EU/EEA, relevant EU law (including as it develops) will remain applicable post any exit. In the short term, pending clarity of the terms of any new arrangement, there will be uncertainties associated with projects and close working with regulators and all Governments in the UK will be needed to adjust to the course ahead. For those operating across the UK it will be important to keep abreast of local initiatives and legislation as potentially the extent of law could diverge across England, Wales, Scotland and Northern Ireland.

Further Reading

Brexit: what happens next? House of Commons Library, Briefing Paper 07632 dated 24 June 2016

EU Referendum: the process of leaving the EU, House of Commons Library, Briefing Paper 7551 dated 8 April 2016