IS THE ENVIRONMENT AT RISK?

On 14 February 2017 a report was published from the Energy and Environment Sub-Committee of the European Union Select Committee of the House of Lords, entitled "Brexit: Environment and Climate Change".

The report followed an earlier report in January from the House of Commons Environmental Audit Committee. That was critical on the Government's proposals for a "Great Repeal Bill" which will transfer EU legislation into UK law and called from the Government to provide guarantees that it will not "trade any environmental protections, animal welfare and food safety standards, as part of the negotiations to leave, or as part of future trade deals".

The House of Lords Committee Report was based on hearings of evidence from a broad range of witnesses ranging from academic experts, representatives of the devolved administrations, trade associations, environmental NGOs, and other representatives of civil society. It surveys the history of European environmental policies and legislation, the so-called environmental "acquis", sets out its scope, and the way in which it is currently enforced, in particular the role of the EU Commission and the Court of Justice in Luxembourg.

It is probably fair to say that the House of Lords European Union Committee is not packed with enthusiasts for Brexit, and a fairly high proportion of the witnesses were "establishment" figures with environmentalist interests. Accordingly, it is of little surprise that the Report is fairly critical of the Government, and the proposals for the Great Repeal Bill.

The tenor of the report is that the proposals for the Bill are far from comprehensive, and that Governmental self-regulation on environmental issues will be a poor substitute for the loss of the oversight of compliance by EU institutions. It therefore suggests that alternative enforcement mechanisms need to be considered. The report also points to the magnitude of the task of adapting almost all significant environmental legislation for use post-Brexit.

The report is clearly correct in pointing out that, postBrexit, the UK Government may not have the threat of the Commission policing its compliance with Community laws on the environment, and will not face the threat of enforcement proceedings with high fines. It will also be the case that the Luxembourg Court will no longer have jurisdiction to hear references from the UK, with the effect that has had hitherto of tightening the screws on environmental obligations set out in legislation.

The Government has itself admitted that as much as a third of the existing body of EU legislation will not be transferred by the "Great Repeal Bill": much of that is no doubt concerned with reporting and oversight and review by Community institutions.

However this does not mean that UK environmental regulations will be transformed overnight or that environmental standards will be dropped.

It is certainly true that a very high proportion of environmental legislation in the UK is set out in EU legislation. The main exceptions are the law on the inspection and remediation of land contaminated by past, as opposed to current activities, set out in Part II A Environmental Protection Act 1990, and certain aspects of climate change and energy law. However, much of the EU's environmental acquis itself derives historically from UK legislation. For example the Industrial Emissions Directive and its precursor Industrial Pollution Prevention and Control owed a great deal to the UK system of Integrated Pollution Control, and the EU ETS was piloted by a voluntary UK emissions trading scheme. There is not likely therefore be significant pressure to change it. There will also be little appetite to change most of the existing law at a time when the Government will have more pressing concerns as a consequence of Brexit.

It seems likely therefore that the great majority of UK environmental legislation will remain in place. This will be particularly true if, following the Brexit negotiations, the UK were to retain close trading relations with the EU, in that broad equivalence of environmental legislation would still be required, as a condition of those relations. Currently it seems unlikely that the UK will try to negotiate the full equivalence of membership of the single market, due to the perceived political need to regain full control of immigration. However, while recent badtempered exchanges suggest that the route is far from clear, ultimately the mutual interest of the UK and the EU may well ensure the maintenance of some aspects of the system in respect of the products of particular sectors, such as the automotive, and especially the food and agriculture sectors.

It has been pointed out that the requirement for "equivalent environmental legislation" which such arrangements would imply would not in any event extend to habitats and species conservation legislation.

However, in a rich country like the UK with powerful and active NGOs (there are said to be more members of the RSPB than of all of the political parties put together) it is unlikely that there would be a significant relaxation of standards. The list of protected species might be changed to reflect UK rather than EU-wide conservation (so the presence of newts, which are at risk EU-wide, but fairly common in the UK, could no longer be used as a pretext to halt development, but that would perhaps not be a bad thing).

The House of Lords Committee may well have a valid point as regards the falling away of Commission oversight.

However it should be pointed out that infraction proceedings brought by the Commission against the UK on environmental topics are relatively rare. Recently, legal action by NGOs such as ClientEarth seems to have been more effective in holding the Government to account. (See past articles in SHE Matters on the enforcement of the Air Quality Directive as regards nitrogen oxides.) NGOs will be very much here to stay post-Brexit.