Environmental regulation

The need for countries to respond to the challenges of climate change, greenhouse gas emissions, resource scarcity, waste management and biodiversity depletion has developed during the UK's membership of what is now the EU. The vast majority of environmental legislation in the UK derives from the EU, although not all of it does so (see for example the Climate Change Act 2008 and the Climate Change (Scotland) Act 2009).

Along with urban planning, housing, economic development and agriculture and forestry and fisheries, competence for environment policy and law is devolved to each of Scotland, Wales and Northern Ireland. Prior to withdrawal from the EU new legislation will be needed in all UK jurisdictions to avoid vacuums in existing environmental law. However, until the new trading arrangements with the EU have been established it will not be possible to determine the nature of environmental policy and law since so much will depend on whether the UK seeks to participate in the Single Market.

The future direction of environment policy and law in an independent UK will be heavily influenced by new trading arrangements (especially with the EU), international treaty obligations, devolution and politics. It is not just about protecting the environment - environmental law requirements can encourage investment in innovation, new markets and technologies, and the generation of employment and economic growth.

Treaty and Regulations

Treaty provisions and European Regulations (which have direct effect in member states) would cease to apply from the time that the UK stopped being a member of the EU. However, the EU often uses Regulations to set product standards and prohibit the entry into the Single Market of any products that do not meet these. UK businesses seeking to export to other member states would need to ensure compliance with EU product standards, such as those set by Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), whether or not the legislation was introduced to keep such standards in all or parts of the UK. There will be a need to continue to do so however long negotiations over the new EU trading relations take, though the UK would not have any influence over the substance of such regulations on leaving the EU (and possibly before).

Directives

Directives, which identify objectives but leave member states some flexibility over how to achieve them, are usually transposed into UK law by statutory instruments. Virtually all environmental directives are transposed under powers granted by section 2(2) of the European Communities Act 1972. Following a Brexit vote and prior to the UK's withdrawal from the EU, all four UK jurisdictions will need to legislate to avoid vacuums in environmental law and also to ensure that the UK complies with obligations under international environmental treaties. The sheer scale of environmental law within the UK and its reliance on EU law would make a law-by-law assessment of changes a significant and time consuming piece of work. Legislating that all European law should continue to have effect unless revoked or amended could be an alternative option. However, at some point an environmental policy framework will be needed and there will be significant logistical challenges to developing this as one of many essential strands post Brexit.

The extent to which changes to European environmental law after Brexit might be accommodated will need to be addressed, as will the status of decisions of the ECJ on the interpretation of European environmental law. It is unlikely that access to the EU Single Market would be agreed by the EU under conditions that enabled the UK to gain a competitive trading advantage by reducing environmental standards.

Influence over EU law and policy

European environmental policy is developed by the European Commission in consultation with member states. The UK is active in contributing to EU environmental policy and law. At best, this influence will be diminished, even though trading arrangements with the EU could require compliance with some, if not most, EU environmental law.

UK environmental policy following Brexit could empower England, Scotland, Wales and Northern Ireland to develop their own environmental policies and laws, to the extent compatible with new trading agreements. However, unless power is ceded back to Whitehall to enable the establishment of a joint UK environmental regulatory framework post Brexit, loss of the common EU framework could lead to greater differences between UK jurisdictions, increasing red tape for business.

Enforcement of environmental law is expected to be weaker without the ECJ. For example, the litigation by ClientEarth - in which the Government has been required to take steps to improve air quality in areas that currently breach EU standards - relies on EU derived law and ECJ decisions.

Town and country planning

Within the EU, town and country planning is largely left to member states under the subsidiarity principle. Two aspects of environmental law that have an effect on development control within member states concern the provision of environmental information to inform consenting decisions and the attainment of specified standards, eg on air quality, water quality, habitats and species.

The process of environmental impact assessment (EIA) is intended to ensure that, prior to the granting of development consent for projects that are likely to have significant environmental effects, full information on such effects is gathered from the developer, statutory consultees and the public and taken into account in deciding whether to grant or refuse consent.

The Habitats Directive and the Wild Birds Directive are seen by some as vital for the protection of important habitats and species across the EU but by others as impediments to development since the grant of consent is prohibited in specified circumstances. New development is required to meet certain EU environmental standards and measures, eg ambient air quality and water quality

It would be up to each of England, Scotland, Wales and Northern Ireland to retain as much or as little of EIA, habitats and species protection, air quality and water quality as they wished or agreed, subject to international environmental treaty obligations and any provisions regarding cross border environmental standards and decision-making processes that may form part of the new trading arrangements with the EU.