The topic of the moment in the UK is whether Brexit will be a good or a bad thing for the UK, and it seems to be polarising the nation. Stepping away from the political rhetoric and posturing, it is worth reflecting on some of the more practical issues arising from a UK exit from the EU, such as how it could affect our environmental law landscape.

Going back a while, the UK was once referred to as the ‘dirty man of Europe’, with relatively lax levels of environmental regulation and standards. Since joining the EU in the 1970s, environmental standards imposed, largely through EU legislation, have seen a significant strengthening of the UK’s environmental protection regimes and of environmental standards. However, much of that change might have happened in any event as environmental issues have moved up the political and community agendas in the last 40 years.

The majority of the environmental legislation in the UK is derived from the EU, largely from directives which have been implemented by UK domestic secondary legislation. Increasingly, however, we have EU regulations, such as REACH, CLP and the Biocidal Products Regulation, which are directly applicable in the UK, with national law only having to deal with enforcement and penalties.

So what could happen to environmental law from a practical and policy perspective if the UK decides to exit the EU after the June referendum?

Status of EU based environmental laws

Exiting the EU would not be an instant event, but rather a long process which would take several years after a decision to exit was made. At the end of that transitional period, EU treaties, regulations and directives would cease to apply to the UK. In the case of directives, the situation could be particularly complex because those are implemented by UK legislation which would not cease to apply, but which is interlaced with references to EU law.

Assuming there is no overall plan to abolish and revoke every single EU based measure upon exit, there would need to be a detailed review of all environmental legislation during the transitional period to work out what should continue to apply after exit, and also the mechanics for doing that where the legal text is directly in EU legislation rather than in domestic laws. Even if the UK wanted to move away from some of the EU based laws, care would have to be taken to avoid the gaps in coverage and uncertainty this could create. Further, a number of environmental laws derive from international treaties to which the UK is a signatory in its own right, for example to Basel Convention on transboundary shipments of waste, and so the UK would have to maintain laws to meet the requirements of those conventions in any event.

The status of EU case law is another question. The interpretation of our EU derived environmental law is often based on or supplemented by case law of the European courts. What status would be given to that case law if the UK left the EU, and could a line be drawn between the effect of case law that pre-dated Brexit and new case law after that date?

Environmental standards for market access

Even if the UK exits the EU it will still want and need access to EU markets, and that could be structured in a number of different ways. If the UK joins the EEA and/or EFTA then it would still have to meet the standards of key EU legislation, including environmental standards, so would still be constrained by EU environmental law. Even if the UK did not join those groupings, in practical terms it would still need to meet environmental product and supply chain standards in order to be able to supply products and services into the EU (such as RoHS and CLP). Supporters of the “Remain” campaign cite this as one of their main arguments, that the UK would need to continue to meet EU standards in order to gain market access, but without the ability to contribute to the ongoing development of EU law and policy.

Environmental policy direction

If the UK did split with the EU, what impact could that have on future policy direction in environmental matters? If the UK retained the status quo at first, it is possible that legal standards could be adjusted over time to a more UK specific set of environmental legislation. That could mean less stability and certainty in understanding and anticipating environmental laws, as the UK legislative process is more susceptible to the political cycle than the EU legislative process. It could also lead to lower or less ambitious standards in environmental protection. A group of former heads of environmental charities and regulators have recently written to the government to that effect. Others argue that Brexit would allow the UK more freedom to make environmental laws that are adapted to UK-specific circumstances, rather than EU-wide ones. One rather perverse possible effect is that EU law could change in a particular direction going forward, without the UK there as a powerful influencer, and the UK could then have to comply with those new or additional environmental requirements in order to gain EU market access.

In conclusion, if the UK does vote for Brexit in June, that will only be the beginning of a long and complex process to unpick and separate out the UK’s environmental legislation into a stand-alone set of rules and regulations. Going forward from then, it is very unclear what approach the UK might take to how much of that legislation it would maintain for its own policy objectives and to continue to be able to access EU markets.