Much of our Environmental law originates from the EU, including law on water, chemicals, air quality, waste, noise, climate change and energy efficiency. Most of it comes from EU directives, for example the Industrial Emissions Directive (IED) and the Waste Electrical and Electronic Equipment (WEEE) Directive, which the UK has implemented into our national law. Some of it is derived from regulations which are directly applicable in the UK, without the need for any implementing legislation here. An example is the REACH Regulation governing chemicals and the Biocidal Products Regulation.This briefing considers the potential impact of a vote to leave the EU (“Brexit”) from a UK environmental law perspective.
What would happen immediately after a Brexit?
It is likely to be business as usual from an Environmental law perspective immediately after a vote to leave the EU. The question is when are any changes likely, and what will they entail?
The general consensus seems to be that two years is the likely minimum period before the UK would actually leave the EU. The complex issues involved suggest that a longer period may be necessary. There is a mechanism in the EU treaty for a Member State to withdraw from the EU (Article 50 of the Treaty on European Union). Under this, the UK would give notice to leave followed by a period of negotiation to agree the terms of the withdrawal. Exit would take place at the earliest on signing the withdrawal agreement or two years after notice is given. The UK government will determine when the notice is served, which starts the two year period.
Uncertainty therefore is likely to prevail for a period of some years. The status quo is broadly expected to continue during that period.
What type of relationship might the UK have with the EU if it leaves?
This is the subject of much speculation, with different model examples for a future UK/EU relationship being touted.
One example is the Norway arrangement, in which the UK could leave the EU but remain part of the European Economic Area (EEA) and have a relationship with the EU. In those circumstances, the UK would remain bound to implement and apply much of EU law, including regulations such as REACH, but would have lost its ability to influence it. Reports suggest Norway adopts as much as three quarters of all EU legislation.
In other circumstances, the UK would not be bound by EU Environmental law unless it agreed otherwise, maybe as part of a deal to secure continued access to the EU’s single market. Other models include the Swiss model with the UK re-joining the European Free Trade Association (EFTA) and entering into a bilateral trade agreement with the EU, as Switzerland has done. A further model is the WTO (World Trade Organisation) alternative, in which the UK would leave the EU and (like China and the US) rely on its membership of the WTO as a basis for trade with the EU.
There is no easy option or answer. The bottom line is that no-one knows, and it seems likely that a bespoke arrangement would be negotiated to provide for the terms of the UK’s continuing relationship with the EU upon leaving.
How would UK Environmental law be affected by exit from the EU?
There will need to be a comprehensive review of Environmental law to identify what is derived from the EU, and to consider what should be repealed in whole or in part or changed. The UK’s scope for this will depend on the nature of the post-Brexit UK/EU relationship, and it is likely to be a significant task.
Exit from the EU would not automatically undo UK laws which have been put in place to implement EU Directives. Those laws would remain in place pending change, but without any opportunity to influence any changes going forward.
This potentially impacts a range of areas, including the environmental permitting regimes of large industrial facilities in sectors such as energy, waste, water, manufacturing and mining. Much of UK law relating to waste, such as WEEE, packaging waste and the management, storage and disposal of waste falls into this category. Equally, the requirement for comprehensive Environmental Impact Assessments (EIA) on the development of large or environmentally significant facilities derives from an EU Directive on EIA.
If the UK takes any path forward other than the Norway/EEA model, careful consideration will be needed as to what the UK’s position should be in relation to the requirements under these Directives. For example, what about the EU ETS (Emissions Trading Scheme) – would the UK leave the EU ETS, and what measures would there be to ensure that the UK complies with its international and domestic climate change commitments?
Because regulations work directly at EU level, not UK national level, there would be a regulatory gap following exit which would need to be addressed. This might at first sight seem like an appealing opportunity to be rid of some burdensome regulation. However, it should be borne in mind that UK exporters to the EU, would still have to ensure that their products comply with existing EU regimes including REACH, biocides and CLP in order to sell into the EU market. This may result in EU importers choosing an alternative supplier rather than facing additional burdens themselves under these regimes.
If the UK agreed an arrangement similar to Norway, practically not much may change e.g. under REACH UK companies would still have the same registration obligations.
If the UK adopts a different regulatory approach, this could result in different compliance obligations for companies manufacturing, importing or using chemicals in both the UK and EU (and wider markets for which similar regulation to REACH is increasingly the trend). From a practical perspective, any reduction in standards of environmental and safety protection could meet with public opposition. It is possible that industry may choose to continue to voluntarily apply EU standards to avoid reputational issues.
Another challenge with regulations is that even though they work directly at EU level, their enforcement and penalties are typically dealt with through national legislation. This national legislation would need to be revoked to avoid the bizarre situation that although in theory REACH would no longer apply, a company could still be guilty of an offence of failing to comply with REACH under UK enforcement legislation).
What about rulings of the European Court of Justice (ECJ)?
UK courts would no longer be bound by the rulings of the ECJ. Any material difference between the interpretation of EU based laws by UK courts from interpretations of similar laws in EU jurisdictions could present challenges. For example presently the UK definition of waste is shaped by a series of ECJ decisions. Equally if the recent ECJ ruling regarding the threshold for substances of very high concern (SVHCs) in articles had been determined after a Brexit the UK would potentially be imposing different requirements from the rest of the EU. This will be particularly relevant to businesses operating on a pan-European basis.
The UK is a party to several UN environmental conventions which are currently implemented through EU legislation. In the event of an exit from the EU, the UK would have to consider how its obligations would be covered. These include matters such as climate change (the Framework Convention and Kyoto Protocol), access to justice in environmental matters (Aarhus Convention), habitat protection, and the protection of endangered species.
Others will not be affected, where EU legislation does not implement the UK’s obligations e.g. The OSPAR Convention (Convention for the Protection of the Marine Environment of the North-East Atlantic) whose implementation is coordinated by Defra (the Department for Environment Food and Rural Affairs).
What about EU-derived technical guidance, standards etc?
Technical guidance, research, and standards are coordinated by the European Commission. They underpin EU and current UK environmental policy and legislation and promote best practice. By way of example Best Available Techniques Reference Documents under the IPPC and the IED Directives are key reference documents used by UK environmental regulators when setting permitting conditions for UK installations. Following a Brexit, the UK may have to bear the cost of developing its own documents or potentially rely on EU policies/documents without having a seat at the table.
Where UK domestic law has not been enacted due to an EU requirement a Brexit is unlikely to significantly impact this legislation. The Contaminated Land regime is now so imbedded in UK law it seems unlikely there would be any impetus to change this.
One impact of a Brexit would be significant legal uncertainty, resulting from the lack of precedent and the complexity of the UK and EU’s intertwined legal regimes. Some Brexit models present an opportunity to reappraise and possibly reduce environmental regulation following a Brexit, which might make the UK an attractive place to do business. Set against this is a concern that a different regulatory approach in the UK from the EU might present other challenges. This could include potentially a higher compliance burden for businesses operating across both the UK and the EU. Meeting EU environmental and safety standards would in any event be a pre-condition for sales into the EU market.
Looking at areas such as producer responsibility, the UK has spent time and money setting up complex arrangements to deal with ever increasing waste streams such as WEEE. It seems unlikely the UK would drop these requirements altogether, although there may be some scope for simplification. So far as legislation relating to product compliance is concerned, e.g. the ROHS Directive, it seems even less likely there would be major change. The whole of the electronics industry has moved on in response to the ROHS legislation. Given the global supply arrangements it is unlikely, in practice, the UK would be able to go back to lead soldering even if it wanted to do so.
A Brexit would not result in change overnight. The negotiation of the UK’s relationship outside the EU would commence and could last for years. In the meantime, the UK may come under pressure to abide by EU regulation in return for ongoing access to the European Single Market.
What is clear is that fully appraising and responding appropriately to the situation will incur considerable time and money, with a long period of uncertainty.