Brexit and Scottish Environment Strategy

20.06.19

We’ve posted recently on the new Brexit deadlines here.

However, whether we leave on 31 October, or another date (TBC) the UK and Scottish Governments have committed to safeguarding environmental standards.

In this legal update we focus on the key Brexit developments in environmental law and regulation. Since most environmental matters are devolved to Scotland, there is a special focus on the Scottish Government’s approach, in particular in the Environment (EU Exit) (Scotland) (Amendment etc.) Regulations 2019.

A bit of background

We previously posted on the European Union (Withdrawal) Act 2018 (the Withdrawal Act) and UK Government policy on environmental law. You can read the full post here.  In summary, the Withdrawal Act provides a legal framework for the UK leaving the EU and the subsequent incorporation of EU law into UK law, including in relation to environmental law.

Section 16 of the Withdrawal Act includes a requirement to publish a set of environmental principles and to establish a UK public authority to maintain and enforce UK environmental law after Brexit.  In December 2018 the UK Government published its draft Environment (Principles and Governance) Bill, with the aim of setting out “how we will maintain environmental standards as we leave the EU and build on the vision of the 25 Year Environment Plan”.

Environmental matters are largely devolved to Scotland. However, the interaction between the Scottish and UK Governments on certain devolved matters is being dealt with through post-Brexit UK-wide frameworks. We previously posted on these frameworks both from a Scottish and a UK perspective. UK-wide frameworks aside, Scotland has its own environmental policy and potential regulatory gap to close following Brexit. In summer 2018, the Scottish Government published two papers on environmental strategy following Brexit, the report on “Environmental Governance in Scotland on the UK’s withdrawal from the EU - Assessment and options for consideration” and the “Developing an Environment Strategy for Scotland: Discussion Paper”. We commented at the time. The Scottish Government has also consulted on environmental principles and governance arrangements following Brexit.

The Scottish Environment Regulations

As in other areas, legislation has been made to ensure that the current environmental legal framework will continue to operate effectively after Brexit, especially in a no-deal scenario (for more information on the Scottish Brexit Regulations see here).

The Environment (EU Exit) (Scotland) (Amendment etc.) Regulations 2019 (the Environment Regulations) address deficiencies in current Scottish legislation arising out of the UK’s expected withdrawal from the EU. The Regulations also correct a number of existing cross references to EU legislation which require to be amended as a result of Britain ceasing to be an EU member state. Changes are being made primarily around terminology in licensing and enforcement powers for the Scottish Environment Protection Agency (SEPA) and around environmental standards. For example, the Environment Regulations add a new statutory power to the Special Waste Regulations 1996 that will allow Scottish Ministers to determine whether a particular batch of waste is to be classified or not as being hazardous (essentially mirroring current powers under the EU’s Waste Framework Directive 2008/98/EC into domestic law).

The Environment Regulations also amend primary and secondary legislation relating to:

  • environmental protection (e.g. the Environmental Protection Act 1990 and the Pollution Prevention and Control (Scotland) Regulations 2012);
  • waste (e.g. the Special Waste Regulations 1996 and the Landfill (Scotland) Regulations 2003);
  • water environment (e.g. the Bathing Waters (Scotland) Regulations 2008 and the Water Environment and Water Services (Scotland) Act 2003); and
  • water industry (the Urban Waste Water Treatment (Scotland) Regulations 2008).

Best Available Techniques after Brexit

More significantly the Environment Regulations also make changes to environmental standards established by Best Available Techniques (BAT) conclusions. “Best Available Techniques” in this context mean the available techniques which best prevent or minimise emissions and impact on the environment (e.g. in the context of waste treatment and energy efficiency).

Under the EU’s Industrial Emissions Directive 2010/75/EU, the European Commission adopts BAT reference documents (so called BREFs) for each technique and the “BAT conclusion” sets out its conclusions on each BAT reference document. A BAT conclusion, put simply, defines the technique which best prevents or minimises emissions and impact on the environment.

As long as the UK is still an EU Member State, UK installations covered by the Directive need to comply with the EU’s “Best Available Techniques” conclusions. As a consequence, SEPA currently sets its permit conditions requiring compliance with these EU standards.

The Environment Regulations amend the Pollution Prevention and Control (Scotland) Regulations 2012 to reflect the fact that, after the UK has left the EU, EU BAT Conclusions will no longer be directly applicable to the UK. The aim of the Environment Regulations is to ensure that SEPA has an appropriate and legally enforceable basis for imposing permit conditions on the grounds of the “new” domestic BAT conclusions after the UK has left the EU. Most importantly, the Environment Regulations add a new “domestic” definition of BAT conclusions, through a mechanism for amending and adjusting “retained” EU decisions on BAT conclusions, and transferring functions to determine new BATs for industrial activities to appropriate authorities in the UK.

Outlook

The intention of the Environment Regulations is to ensure that directly following exit date there will be no disruption or immediate danger to the Scottish environmental protection framework. Establishing a long term Scottish environment strategy is a much more complex process which we will continue to follow and comment on as it develops, in our Brexit Hub and elsewhere.

If you have any questions, please get in touch with Niall McLean, Hannah Frahm or your usual Brodies contact.