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What could ‘Brexit’ mean for UK environmental law and policy?

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About The Author

Alexander Barbour (Former Criminal & Environmental Law Editor)

Alex has recently graduated from the University of Birmingham, achieving a First Class Honours degree in Law. His main interests lie in issues concerning human rights, criminal justice and the environment. Alex recently received the Albion Richardson Award from Gray’s Inn to fund the BPTC, which he is currently undertaking at the University of Law, Birmingham.

This article is part of the 'Brexit' series, edited by Matt Bogdan.

With the upcoming referendum on the UK's membership of the European Union, the Brexit series intends to explore key issues surrounding Brexit, particularly what effect EU law currently has on the UK, and what would be left with it gone.

Other articles from this series are listed at the end of this article.

In the 1970s and 80s, the UK earned the title ‘the Dirty Man of Europe’ as a result of its poor environmental regulation. European legislation has drastically improved the situation, with UK environmental protection becoming far better than it ever has been. However, with the possibility of revoking EU membership following the 2017 referendum comes the threat of great lacunae in environmental law, and a loosening of environmental protection.

This threat is not unperceived by the present government, who recently announced that the cross-party Environmental Audit Committee (‘EAC’) is to hold a public enquiry to investigate the merits and demerits of having much of UK environmental policy determined on a supra-national basis by the EU. The Committee will look specifically at the balance between EU environmental frameworks and national approaches, the impact of EU environmental policies on UK businesses, and the role of the EU as a negotiator of environmental agreements in the international arena.

The role of the EU in the formulation of environmental law and policy was clearly in the minds of those in the last coalition government, who published a report on the environment as part of its series of reports reviewing the balance of competences between the UK and EU. According to the report:

Some identified pieces of EU legislation which in their view imposed unnecessary restrictions on development and economic growth. In contrast, a small minority of respondents made a case for expanding EU competence into specific policy areas and for a stronger role for the EU in international negotiations.

The report summarised that:

[R]espondents generally thought that the main framework of EU legislation on environment and climate change was now established and considered that future EU action should focus on improving implementation of the existing laws rather than seeking to expand environmental protection into further areas of Member State activity.

This report could therefore act as a mandate for the current Conservative government to renegotiate the terms of membership with the EU, if it is seen to be stepping beyond its remit. The commissioning of another report on this basis seems odd, unless the government is looking for a stronger cross-sector anti-EU response.

What has the EU done for us?

The UK was called ‘the Dirty Man of Europe’ for a reason. Dr Charlotte Burns, an expert in EU environmental policy and processes, describes how the government’s waste policy of ‘dilute and disperse’ in the 1970s and 80s meant that our seas were some of the dirtiest in Europe, akin to open sewers. We also had the highest levels of sulphur dioxide emissions in the EU, which meant air pollution levels were dangerously high. Policy-making was reactionary, rather than preventive, and close relationships between policy-makers and those they sought to regulate led to a combination of low environmental targets.

Membership of the EU has had a profoundly positive effect on environmental policy in the UK. Environmental policies pioneered by the more environmentally visionary nations, such as Denmark, the Netherlands, Sweden, Germany and Finland, have improved the environment across Europe. In the UK specifically, the EU has prompted the creation of regulatory agencies, such as the National Rivers Authority, to oversee the implementation of legislation, coupled with more stringent judicial measures to support enforcement of policy.

This has had physical effects on the UK environment. The quality of beaching and bathing waters has improved as a result of the EU bathing water directive; air quality has improved as a result of the air quality framework directive; wildlife is now better protected than ever before, following the Natura 2000, habitats and birds directives; and the UK now has clear emissions targets.

The physical improvements to the environment have led to increased tourism, boosting local economies, which is an example of the win-win situation of improved environmental quality and economic gain. It is not only the tourism industry that has benefitted, however. The aspirational quality of many EU environmental policies creates space in which entrepreneurship can thrive:

Environmental policies are also creating economic opportunities and thereby contributing to the Europe 2020 Strategy, aimed at making the EU into a smart, sustainable and inclusive economy by 2020. For example, the environment industry sector, which produces goods and services that reduce environmental degradation and maintain natural resources, grew by more than 50% in size between 2000 and 2011. It has been one of the few economic sectors to have flourished in terms of revenues, trade and jobs since the 2008 financial crisis.

Indeed, the Confederation of British Industry (CBI) has suggested that green business accounted for 8% of GDP, a third of UK growth in 2011-2012. Not only this, but the EU is the UK’s largest trading partner, thus EU membership offers us access to a larger marketplace and the opportunity to trade with our neighbours under favourable terms and conditions. Given the transboundary nature of environmental problems, it makes sense to partake in European regional policy-making, for both environmental and competition reasons. Only through participation in the EU does the UK stand a chance of shaping the position adopted by other key players on the environment, such as China and the US.

What if the UK remains part of the EEA?

Portraying the options for the UK as purely ‘in’ or ‘out’ is misguided and will only serve to hamper informed debate before the referendum. There are a number of options if the public votes ‘No’ in the referendum. In such a scenario, it should be open to the public to decide the extent of detachment. Other than full withdrawal from the Union, the most likely option is to join countries such as Iceland, Norway, Switzerland and Liechtenstein as part of the European Economic Area (EEA). If the UK became part of the EEA, we would remain subject to a number of EU environmental regulations, and would likely be bound by future regulations that would be passed without any input as to their contents.

While continuing to be bound by some EU regulations can be seen as either a good or bad situation, depending on your views on the role the EU should have in environmental regulation, even if the UK became part of the EEA, there are a number of key policy areas in which we would cease to be bound by EU legislation. These include specific directives on: bathing waters, birds, habitats, shellfish waters, fresh waters needing protection or improvement in order to support fish life, and exchange of information on the quality of surface fresh water.

These European measures, in particular Directive 76/160/EC on bathing waters and Directive 92/43/EEC on the conservation of habitats, have been particularly pivotal in securing environmental protection in the UK. This raises the question: if the UK were to become a member of the EEA, would this lead to neglect of these environmental issues?

The question is a key one, because without these directives some argue the UK could return to the state of being the ‘Dirty Man of Europe’, and, indeed, some commentators argue we still are. But it would be unfair to ignore the UK’s significant contributions to driving European policy on the environment forward during its membership to date. The UK has been one of the key proponents of a number of initiatives, most recently concerning climate change. It was the UK that developed the successful emissions trading scheme, which has subsequently been implemented EU-wide to control the reduction of CO2 emissions.

What if the UK leaves the EU entirely?

If the UK public decided not to join the EEA, another option would be to leave the European Union entirely. If the UK were to leave the EU entirely, there is a high chance we will be worse off from an environmental perspective. This is because despite the UK’s contribution in the field of climate change, the country has failed to play a leadership role in a number of important environmental policy fields. For example, the UK government sought to block strict rules limiting imports of tar sands at the EU level, tried to weaken the EU energy efficiency directive, is falling behind on its renewable energy targets, and threatened to block an EU pesticide ban that will protect bees. This is particularly surprising, considering that the UK pavilion at the Expo in Milan in the summer of 2015, which had the theme of sustainability, was about the pivotal role bees have to play in the global food chain and ecosystem.

Leaving the EU could have significant practical implications for UK environmental and planning lawyers. The extent of change would depend largely on whether the UK decided to increase, maintain or reduce the level of environmental protection; though this is largely an issue of politics.

From a legal perspective, however, there are two key issues. Firstly, EU treaty rules and regulations are directly applicable, so if the UK were to leave the EU, and chose not to join the EEA, these instruments would cease to be applicable in the UK. This would leave great lacunae in UK environmental law and policy. Secondly, the EU directives which are not directly applicable in UK law are usually implemented using statutory instruments, under the powers in the European Communities Act 1972. If the 1972 Act is repealed, these statutory instruments will cease to be effective as part of UK law, unless the repealing legislation expressly states otherwise.

Conclusion

For the environment, it is uncertain how the levels of protection would alter following the referendum. While the UK does not have an exemplary past when it comes to environmental issues, there are initiatives that suggest the UK could grasp the opportunity to control its environmental policy. There is also evidence, however, that to hand all powers relating to environmental policy back to Parliament would see an increase in recent neglect of environmental issues in favour of the interests of big business.

Environmental and planning lawyers will be following the Brexit debate intently, and will no doubt contribute. The environment is an issue increasingly in public conscience. It plays a fundamental role in the way we live our lives, and what lives we want to secure for future generations. Environmental protection and conservation requires significant investment of both time and money, which means that it is often neglected by governments who are more concerned with headline issues such as the NHS or the economy. Increased awareness of the respective contributions of the UK and the EU to national, regional and international environmental protection can only serve to increase the likeliness of a fully informed Brexit debate.

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Tagged: Environmental Law, European Union

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