At least 50% of UK environmental law derives from the EU. It has driven improvements in environmental standards and some sectors welcome a degree of cross-EU regulation and its ability to establish a level playing field amongst competitors in the EU market. It is also an enabler of the EU clean technology and environmental services industries.
The Government has since the referendum continued with a business as usual approach to implementing into domestic law new EU laws that are already in force and we expect it to continue to do so right up to the UK’s exit. New EU environmental laws such as the revised National Air Emissions Ceilings Directive continue to be approved and may thus make it onto the UK statute book ahead of the exit.
The Government has stated in the context of the Great Repeal Bill that on the UK’s exit from the EU, all legislation deriving from EU law will be kept on the statute book. Subsequently DEFRA conceded that this would be difficult in relation to at least a third of domestic environmental legislation, which employs various links to the governing EU primary legislation rather than being a simple “copy out” of its provisions and additional incorporation may be necessary. Subsequently, choices could be made whether the UK as a whole, or devolved administrations separately (having competence for environmental regulation in their parts of the UK), should seek to modify it or remove it from the statute book altogether. EU law implementing international treaties would be likely to be followed in UK law if the UK is individually a party to the relevant treaty, or if the UK chooses to become a party. Particular areas of EU regulation where the UK has struggled to comply such as air quality targets, or which are very burdensome such as waste law and chemicals registration, may be early targets for reform. Infraction proceedings already brought against the UK such as in relation to the failure to comply with limits on nitrogen dioxide limits in urban areas may not conclude before the UK leaves the EU. New infraction proceedings are unlikely to be brought given the timeline to UK exit.
Even in the event of a significant reduction in UK regulation, UK exporters would continue to be obliged to meet EU environmental and safety products standards in order to sell into the EU market. UK manufacturers will still need to submit registrations with the relevant EU chemicals agency by the May 2018 deadline, requiring advance preparation of dossiers and information sharing, but the continued validity within the EU market place of existing registrations made by UK suppliers also needs to be assured in the exit negotiations.
Another area of uncertainty concerns whether the UK would continue to participate in the EU Emissions Trading Scheme – the EU’s principal method of controlling industrial emissions of greenhouse gases, but also a key tenet of the UK’s strategy to meet domestic carbon targets which will continue to bind the Government post-Brexit. The treatment of allowances already issued to participants needs to be considered in Brexit scenarios, as does (from the European Commission’s perspective) any potential destabilising effect the UK’s exit might have on the carbon market. It may be that the UK would re-establish a parallel domestic cap and trade emissions scheme, linking it back into the EU scheme by agreement with the EU.
Any reduction in standards of environmental protection could also meet with public opposition and industry may choose to continue to voluntarily apply the EU standards as best practice with a view to avoiding reputational issues. As can be appreciated from the complex interactions in this area, separating UK environmental law from its EU context could take many years.
Major elements of the UK’s environmental law of domestic origin would be unaffected, including liability for clean-up of contaminated land and requirements for most environmental permits, eg water discharges and abstraction. Criminal liability for breach of offences often involving strict liability and the possibility of tort liability arising from environmental pollution are notable features of the UK system that would remain untouched.