On 30 March the UK Government published its White Paper on the proposed Great Repeal Bill.
The White Paper is focused on the legal changes that will result from the UK’s exit from the EU. A summary of the key features of the White Paper can be found here.
To date, environmental law has not featured prominently in the debate about legal changes following Brexit, with attention instead focused primarily on trade, immigration and freedom of movement, and financial services arrangements.
EU environmental law is a unique ecosystem which imposes requirements on member states to ensure basic standards are met in relation to environmental protection domestically, but also provides for supranational protection in relation to bigger picture environmental issues affecting the whole of Europe (such as air and water quality and species conservation).
In contrast with most international environmental protection measures (which tend to be much more aspirational with little in the way of teeth to promote compliance) EU measures are monitored and enforced by EU institutions which impose sanctions on member states where breaches occur.
It might be easy to dismiss environmental concerns as being of minor importance in the overall context of Brexit.
However, environmental protection measures are, crucially, interlaced not only with the fabric of our society and protection of health and well-being but also our trading, sustainability and economic prosperity.
It is therefore very much a “real world” issue which impacts each of us on a personal level but also directly affects UK business, our society and our economy.
The UK Government’s stated aim in the White Paper is one of stability: to ensure that “the same rules and laws will apply on the day after exit as the day before”.
There is now also a welcome and clear message on the significance of the environment as the UK Government restates that it is “committed to ensuring that we are the first generation to leave the environment in a better state than we found it” and that they “will ensure that the whole body of existing EU environmental law continues to have effect in UK law”.
With all of that in mind, some key environmental issues highlighted by the White Paper are as follows:
- Devolved Administrations – The White Paper describes how UK primary and secondary legislation will require adjustment to accommodate Brexit. It should not be forgotten that a similar exercise will be required in respect of the primary and secondary legislation made by the devolved administrations.
As environment is a devolved area in Scotland, that will mean a substantial amount of amendment to existing Scottish primary and secondary legislation.
The UK and Scottish Governments will need to work closely to ensure a cohesive and comprehensive approach.
- Common Frameworks – The UK operates within common EU frameworks in a number of areas such as water and waste regulation. The White Paper anticipates that these may need to be replaced by pan UK common frameworks to set the general tone and mentions working with the devolved administrations to deliver that approach with a “significant increase in the decision making power of each devolved administration”.
It is not yet clear in which areas those possible frameworks may operate and there is likely to be political disagreement about whether there should be a further layer of UK control, given that the environment is a matter within the competence of the devolved administrations.
However, without overarching pan UK frameworks to replace those already in existence there is a risk of divergent laws within the UK which could, for example, lead to jurisdiction shopping in areas such as waste management – which in turn could have more serious long term environmental consequences.
- Making sense of the legislation – Much environmental legislation refers to involvement in an EU institution or is predicated on membership of or access to an EU regime.
Unless negotiations result in an agreement on continued involvement of EU institutions or access by the UK to existing enforcement regimes, those aspects will no longer ‘work’ once we have left the EU.
One of the examples mentioned in the White Paper is the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 which require an opinion from the European Commission on certain projects involving offshore oil and gas activities.
The UK Government’s suggestion is that this EU reference is replaced with reference to a UK body or removed completely.
It would be a significant change to our system of environmental regulation to remove the requirement for this additional scrutiny of projects without establishing a replacement independent body to replicate the role currently played by the European Commission.
It seems likely that here (and in other similar legislation containing EU references) there will also be significant debate as to the identity of any replacement regulator – in particular whether it is to be a pan UK body or whether existing or new regulators will perform this role within each of England, Wales, Scotland and Northern Ireland.
- Debate on significant changes - It is intended that a huge volume of the required legislative changes will be made using secondary legislation. In principle, this is a sensible approach as the need for proper scrutiny of legislative changes needs to be balanced against pragmatism and the time available to deal with such matters.
The likely controversy here however will be around how the relevant changes are categorised and the desire to ensure that the more significant changes (for example proposed changes of regulator and to create new UK frameworks for example) are properly examined by the relevant parliaments and assemblies.
It is therefore of vital importance that all stakeholders with an interest in the environment engage with these issues as the considered contribution of all stakeholders – and in particular engagement by the business community – is critical to ensuring that the UK maintains a robust, clear and effective system of environmental law.
In time no doubt there will be debate about future divergence from these standards but that is a matter to deal with at the appropriate time. For now we must focus on the current task in hand.
To that end we would urge clients to start the process (if they have not done so already) of assessing which EU environmental laws impact their business activities and where they might wish to input with specific reference to the issues highlighted above.